Pacific Coast Law Journal.

VOL. 2.

JANUARY 18, 1879.

No. 21.

Current Topics.

WE call attention to the article on "Title to Bodie Mines"

appearing in this number. The writer has given much thought to the subject, and his review of the decisions touching the issues raised in the discussions will prove interesting and valuable.

SEVERAL decisions by our Supreme Court have been filed since the adoption of Rule 39, a copy of which was given last week, and each appears with a syllabus of the points decided by the court. Hereafter each syllabus to the Supreme Court opinions not signed by the editor of the the JOURNAL must be considered as written by the Justice delivering the opinion.

JUSTICE OF THE PEACE, S. S. Wright, in construing the 4th Section of the Exemption Act, holds that type and material used in a printing office are exempt to the printer from attachment or execution. This seems a broad construction, unless it is limited to such type and material as are used by the printer himself, and not by assistants.

WE publish this week a full text of the proposed changes in the Judiciary system of the State, adopted by the Convention in Committee of the Whole. The article is the result of much thought and labor by some of the most talented jurists in the State.

FROM March, 1875, to January 1, 1879, three hundred and seventy-one attorneys were admitted to practice in the Supreme Court of this State.

TITLE TO BODIE MINES.

In the PACIFIC COAST LAW JOURNAL of the 4th of January is an article pertaining to the Bodie Mine titles, in which the writer takes the legal position, and endeavors to sustain the same by authorities, that the purchasers of the State title to Section 16, embracing a large portion of the most valuable mines in Bodie District, hold the true title over the mines and mine owners. It can not be denied that if such purchasers were sustained in their titles, it would be a misfortune to the whole country, as well as to the honest miners who have spent their money and labor in Bodie, even before the surveys were made, or it could be known that they were occupying school lands. Land sharks, who hang about the public land offices, need only to wait until valuable mines were discovered and opened, and then have the surveys extended over them, and, by collusion with officers in the land department, pounce on the school lands and seize the mines. If the position taken by the writer is incorrect, as I am satisfied it is, it is scarcely conducive of good, as it may unwittingly have the tendency to encourage the purchase of a worthless title.

It is not disputed that the language of the reservation of Sections 16 and 36, in the Act of 1853, contains words of present grant, and that mineral lands, without further legislation of Congress, were not excepted from the operation of that grant. (Higgins vs. Houghton, 25 Cal. 250; Cooper vs. Roberts, 18 How. 173.) It is equally well settled that the title to any portions of the lands so granted for the purpose of public schools does not attach or vest in the State until the survey has been made. (Middleton vs. Low, 30 Cal. 604; 25 Cal. 250; Cooper vs. Roberts, 18 How. 173; 20 How. 484.) These premises being settled, it remains to be seen what action Congress has taken to withhold the mineral lands in such sections, and grant or appropriate them anew before the surveys have been made, and whether such grants operate to withdraw such lands from passing to

the State. The Act of Congress approved July 26, 1866, and the Act approved May 10, 1872, open up all mineral lands, surveyed and unsurveyed, belonging to the United States, to location as mineral lands, and authorizing patents from the United States to issue therefor, the latter act repealing all acts or parts of acts inconsistent therewith.

As the title to the lands remains in the United States, the language of the acts will apply to all such lands unsurveyed at the time those acts took effect. So far there is probably no difference of opinion. But it is contended that the United States had so far parted with its interest upon the passage of the Act of 1853, that it could not afterward appropriate the 16th and 36th Sections even before the survey, though the same were mineral lands, and located and occupied as such. The contrary view, however, on principle, policy, and authority, I am satisfied is correct.

In Rice vs. Minnesota and Northwestern Railroad Company (1 Bl. 358), the Supreme Court of the United States decided that a grant to a railroad, with a proviso that no title shall vest until twenty miles of the road be finished, conveys no present interest, and is repealable by Congress at any time before such interest became vested.

In Frisbie vs. Whitney (9 Wallace, 192), the same court sustained the validity of an Act of Congress granting land that had been open to pre-emption, and on which the settlers had made the necessary settlement and improvement; and therein decided that a vested right is only obtained when the purchase money has been paid, and the receipt of the proper land office given to the purchaser. MILLER, Justice, delivering the opinion of the court, said: "It will hardly be contended that anything short of a vested right in this land could deprive Congress of the right which it has as owner and holder of the legal title, and by the express language of the Constitution, to dispose of and make all needful rules and regulations respecting the territory and other property of the United States."

In Beecher vs. Wetherby (5 Otto, 517), the question raised

was whether grants made by Congress before the survey of Section 16, which had been previously granted to the State of Wisconsin in its Enabling Act under the general designation of 16th Section, would prevail over the title derived from the State. The court decided that the State grant must prevail, but based its decision upon the fact that the grant was made in the Enabling Act, and was of the nature of a compact of the United States with the State of Wisconsin. FIELDS, Justice, in delivering the opinion of the court, cites with approval the language of the court in Cooper vs. Roberts: "We agree that until the survey of the township, and the designation of the specific section, the right of the State rests in compact, binding, it is true, the public faith, and depending for existence upon the political authorities; but when the political authorities have performed this duty, the compact has an object upon which it can attach; and if there is no legal impediment, the title of the State becomes a legal title." It is proper to add that, in the case of Cooper vs. Roberts, the State claimed title under its Enabling Act. The reason of this decision applies with force to our position in this matter; for if until the survey the United States is only bound by virtue of its compacts, then, as here where there is no compact, it would not be bound.

In Water and Mining Company vs. Bugbey (6 Otto, [96 U. S.] 165), from the State of California, the question was between a water company located in 1853, claiming under Act of Congress of July 26, 1866, and a settler obtaining title from the State for a portion of Section 16. The survey was completed May 19, 1866, and deposited in the United States Land Office June 16, 1866. In deciding the case, the court says: "The title to the State became absolute, as of May 19, 1866, when the surveys were completed. The case stands, therefore, as if of that date the United States had parted with all interest in, and control over, the property. As the Act of July was not passed until after that time, it follows that it could not operate upon this land in favor of

the company." The language used by the court is in entire harmony with our views herein, indicating that the United States retained both an interest and control over the land until the completion of the survey, and appearing to recognize the power of Congress to otherwise grant the land before such survey.

It will be seen that the writer in the LAW JOURNAL was strangely in error when he said that the question in this case was as to the right of the settler to enter under the pre-emption laws. Neither is the language used in Sherman vs. Buick of any signification, it being true as applied to that case-all the conditions existing before the passage of the Act of 1866.

In Heydenfeldt vs. Daney Gold, etc. (3 Otto [93 U. S.] 634), from the State of Nevada, the question was between the holder of the State title to a portion of Section 16, and a company claiming under the Act of Congress July 26, 1866, disposing of the mineral lands, having located and occupied the same before the survey. The State of Nevada claimed it by grant in the Enabling Act, by which it was admitted into the Union; but the court decided in favor of the company claiming it as mineral lands. The section of the Enabling Act of Nevada granting the 16th and 36th Sections is as follows:

"SEC. 7. And be it further enacted that Sections numbers Sixteen and Thirty-six in every township, and where sections have been sold or otherwise disposed of by an Act of Congress, other lands equivalent thereto in legal subdivisions of not less than one-quarter section, and as contiguous as may be, shall be and are hereby granted to said State for the support of the common schools."

Mr. Justice DAVIS, in delivering the opinion of the court, says: "Until the status of the lands was fixed by a survey, and they were capable of identification, Congress reserved absolute power over them; and if, in exercising it, the whole or any part of a 16th or 36th Section had been disposed of, the State was to be compensated equal in quantity,