mind that Congress did not intend to make a grant of mineral lands to the State, and that those members of Congress who undertook to speak for the committees having the matter in charge, were correct when they stated in debate that no mineral lands were granted by the act. (See Cong. Globe, vol. 25, pp. 1036-1038.) I regard the act of July 26, 1866, as providing an exclusive method for appropriating the mineral lands of the United States. It was the first act passed by Congress, and perhaps the first ever passed by any government which undertook to dispose of its mineral lands. It provided in its first section, "That the mineral lands of the public domain" (which is equivalent to saying all the mineral lands of the public domain), "both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States." It required every person claiming any mine to occupy and improve the same, and expend thereon in labor or improvements not less than one thousand dollars, and to do and perform certain other things. It limited the location of any individual to two hundred feet along the vein, with an additional two hundred feet for discovery, and any association to not more than three thousand feet, and required payment at the rate of five dollars per acre. It provided that when the mineral lands should be surveyed, the Secretary of the Interior might designate and set apart such portions of the same as were clearly agricultural, and that the same should be subject to pre-emption and sale as other public lands. In short, it adopted a system for the disposition of the mineral lands, and such a system as would give every citizen an equal opportunity to engage in the business of developing them. It was evidently intended to be the only method by which mineral lands could be appropriated. It made no exceptions in favor of school or other grants. If the State should obtain two sections in every mineral township, it might establish a mineral system for itself, and one in conflict with that of the General Government. In my opinion, Congress never intended to make such a state of things possible. No surveys of mineral lands were authorized or made until the passage of the act of July 9, 1870 (16 Stat., 217, sec. 16), and long after the passage of the act 1866. I am constrained to hold that no mineral lands were granted by the act of 1853, If I am in error, the State can lose nothing, for she has an easy method of presenting the question for decision of the Supreme Court, where it will doubtless finally go. If, however, my decision should be in favor of the State, and it should be erroneous, there would be very many cases in which I am unadvised of any way by which the error could be corrected. I affirm your decision, and herewith return the papers transmitted, with your letter of the twenty-first of October last. Very respectfully, C. DELANO, Secretary. Hon. W. DRUMMOND, Com'r General Land Office. No. 2. 1. If sections 16 and 36 are not known to be mineral in character at the date of the United States survey thereof, the right of the State attaches thereto under the school grant. 2. The decision of Secretary Delano in the Keystone case still authority. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, SIR: I have considered the State of California v. L. J. Poley and Henry Thomas, involving the right to the northeast of south-east quarter of section 36, township 3 south, range 13 east, M. D. M., Stockton, California, on appeal from your decision of June 26, 1875. The State claims under the school grant. Poley and Thomas apply for a patent under the mining act. The township was surveyed in December, 1854, and the plat was filed in the local land office March 14, 1855. The placer mining claims appear to have been located in the year 1858. It will thus be seen that the question presented is, whether the State of California has a legal title to the land in sections 16 and 36, where it is ascertained, after the survey and identification of said sections, that the land therein is mineral. By the sixth section of the act of March 3, 1953, the sections above designated were granted to the State of California for school purposes, and when the lands were surveyed, the title of the State attached to the same; and, if there was no legal impediment, became a legal title. (18 How. 173.) After a very elaborate discussion, my predecessor, Mr. Secretary Delano, held that Congress, by the act of 1853, did not intend to grant, and did not grant to the State any mineral lands which by survey are shown to be in sections. 16 and 36: Copp's Mining Decisions, p. 109. Accepting this conclusion as the correct one, the question still remains, did the title to lands in said sections vest in the State, upon survey, if their mineral character was unknown at the time, and the same were regarded by the officers of the government as ordinary public lands, not reserved or otherwise appropriated, but subject to disposal under the general laws of the United States? It must be held that it did so vest, unless there was an express prohibition existing by virtue of some law. It would seem that it was the intention of the framers of the act not to grant any of the mineral lands to the State. Mr. Hall said in the House of Representatives, on the day of its passage: "There are some donations made to the State of California, but they are precisely the same as those made to the other States of the Union; but in the clauses making the donations, it is provided that the mineral lands and the lands reserved for other public uses shall be excepted. Mineral lands are reserved in all cases." (Congressional Globe, vol. 26, p. 1038.) In support of this theory, the twelfth section of the act may be cited. By its provisions, seventy-two sections of land were granted to the State for the use of a seminary of learning, and mineral lands were excepted; but it will be observed that the lands were to be selected by legal subdivisions; and, by an express provision in section 3 of the act, none but township lines were to be surveyed when the lands were mineral; hence the prohibition was well defined and easily followed. The same remarks will apply to the grant made by section 13 of the act, for the purpose of erecting the public buildings of the State. By the sixth section of the act under consideration, all the public lands in the State of California were declared subject to the pre-emption laws, except "sections 16 and 36, which shall be, and hereby are, granted to the State for the purpose of public schools in each township." * * * There appear to be no words of limitation or restriction in the clause making the grant. The words are absolute and unqualified; the sections are excepted from the operation of the pre-emption law, together with lands otherwise appropriated or reserved by competent authority, or claimed under a foreign grant, and mineral lands; but I know of no rule of construction of language that would justify an interpretation of the words used in the granting clause that would in effect be a limitation of said grant. This view does not, I think, conflict with that expressed by Secretary Delano; for by section 3, above cited, lands known to be mineral could not legally be surveyed or designated as school lands. In compliance with the doctrine established by the courts, it must, I think, be held that the title vested in the State at the date of the survey, when the land was not known to be mineral, or was not treated as such by the government. When right of Stale attaches. If, following the doctrine of the courts, the grant of school lands takes effect at the date of survey, can the character of the land, subsequently determined, change or affect said title? If it can, for how long a period can such change be effected? If for three years, why not for ten or fifty, or after the title derived from the State has been transmitted through numerous grantees? For lands confessedly not mineral at the date of survey, may, many years thereafter, be ascertained, through the improvements in mining operations, to be valuable as mineral lands. To maintain such a doctrine might result in placing in jeopardy the title held by grantees to all the school lands in California, and could only be authorized by the most positive and clearly expressed provisions of law. In my opinion, there is nothing in the act which can thus be interpreted. I must therefore hold that the discovery of the mineral character of land in sections 16 and 36, subsequent to survey, does not defeat the title of the State to the same as school land. The case of Sherman v. Buick, 45 Cal. 656, is cited by counsel. In this case, the court held that the title to each sixteenth and thirty-sixth section, upon its being surveyed, vests absolutely in the State." This decision was reversed by the United States Supreme Court at the present term. After a careful examination of the case, however, I do not think that the question of the title of the State to mineral lands is involved, or that the decision in any way affects that question. It is not intended to assert that the title to the lands in said sections passes to the State upon the survey under the provisions of the acts of July 26, 1866, and July 9, 1870, said lands at the date of survey being recognized and regarded as mineral. The views expressed by Secretary Delano, before referred to, will continue to control the department in the disposal of lands thus designated.* There are other questions presented in the case under consideration; but if the views above expressed are correct, their consideration is not called for. Your decision is reversed, and the papers transmitted with your letter of September 10, 1875, are herewith returned. Very respectfully, C. SCHURZ, Secretary. To the Commissioner of the General Land Office. No. 3. 1. The provision in the act of February 28, 1861, providing for a temporary form of government for the Territory of Colorado, respecting sections 16 and 36 in each township, was a reservation-not a grant; and those sections remained the property of the United States until granted by act of March 3, 1875, providing for the admission of Colorado into the Union. 2. By the proviso in the said act of March 3, 1875, all mineral lands were excepted from its operation; and any of said sections 16 and 36 known to contain minerals prior to the admission of the said State are excepted from the grant. 3. The grant as to such sections surveyed subsequent to the admission of the State, took effect upon the approval of the survey by the Surveyorgeneral. *See No. 1. |