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quantity of land not exceeding one hundred and sixty acres, to embrace his improvements and mining premises."

This act also specifies when the declaratory statement shall be filed, to wit, in case of lands unsurveyed at the date of act, such declaratory statement shall be filed within three. months from the return to the district office of the official township plat.

In the case under consideration rights had attached to said coal land under the act of third of March, 1865, before the line of the road was definitely fixed past the land, and hence by the terms of the act of July 2, 1864, said tracts were excluded from the grant to said company.

The right which Wild and Redden had acquired was subject to assignment, and, as herein before stated, was assigned to Crismon.

You will inform all parties in interest of this decision, and should no appeal be taken within sixty days from the date of such notification, you will allow Crismon to complete proceedings in his case.*

Very respectfully, your obedient servant,

S. S. BURDETT, Commissioner,

No. 5. When sections 16 and 36 are found to contain valuable deposits of coal, they are mineral in character, and do not pass to the State under the school grant.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., May 7, 1875. SIR: I have examined the case of James P. Hogden and Cyrus T. Wheeler v. the State of California, being an application to enter, as coal lands, the south half of section 16, T. 33 N., R. 1 W., M. D. M., Shasta, California, on appeal from your decision of November 3, 1874.

The State claims the land under the act of March 3, 1853.

Coal is a mineral.

You held that mineral land did not pass to the State under said act, and that coal lands were mineral lands. I affirm your decision, and herewith return the papers transmitted with your letter of March 22 last.

Very respectfully,

C. DELANO, Secretary. To the Commissioner of the General Land Office.

*

Affirmed by the Secretary of the Interior, April 11, 1876.

No. 6.

Mineral (coal) lands should be withheld from public offering and

sale, other than as mineral.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, August 2, 1879.

SIR: I have received your letter of June 10, 1879, inclosing the reports and exhibits of special agent Winters, who was detailed, in pursuance of instructions contained in my letter of September 11, 1878, to investigate the coal and iron lands of the State of Alabama.

From these reports and exhibits, it appears that there is a large quantity of coal and iron lands in said State, some of which, in the opinion of Mr. Winters, are very valuable, and some of them of little or no value. The statute, however, fixes the value of coal, as well as other mineral lands, and, without further legislation, I do not think that we are authorized to dispose of any of said lands at prices other than those established by law. Some of the lands are now considered valuable because of the means of transportation and other advantages. Others are not now considered valuable for the want of means of transportation, and because, also, of the expense of operating the mines. These difficulties, in relation to the latter class of lands, may be overcome in the future, but, whether this be so or not, it can not change your duty nor mine.

Withheld from public sale.

So far as the lands are mineral they should be withheld from sale and disposal-no matter what their value at present may appear to be—until further legislation is had upon the subject. The lands not mineral in said district should be offered for sale and disposal in accordance with existing law.

I herewith return the papers transmitted, in order that you may take such action in the premises as you may deem Very respectfully,

necessary.

C. SCHURZ, Secretary.

To the Commissioner of the General Land Office.

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No. 1. a. Power of Congress to alter or repeal grant before title rests. b. Grant of sections 16 and 36 a present grant, but title does not

No. 2.

No. 3.

vest until survey.

c. "Settlement" referred to in the seventh section, Act of March 3, 1853, not restricted to a claim under the pre-emption law.

d. Sections 16 and 36, when mineral in character, do not pass to the State of California under the grant.

a. If sections 16 and 36 are not known to be mineral in character at date of survey, the grant takes effect.

b. No. 1 still authority.

Colorado grant of sections 16 and 36.

Sections 16 and 36, containing valuable deposits of coal, do not pass to the State of Colorado under the school-land grant.

No. 4.

No. 5.

Salt springs.

No. 6. Lieu lands.

No. 7. University of Callfornia.

Selection of mineral lands.

No. 1. 1. Congress has power to alter, modify, or repeal a grant at any time before title vests.*

2. The grant of sections 16 and 36 was a present grant, but did not vest title in the State until survey.

3. The "settlement" referred to in the seventh section of the Act of March 3, 1853, is not the restricted pre-emption settlement.

4. When sections 16 and 36 were found to be mineral in character, they did not pass to the State of California under the grant.+

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., April 28, 1873. SIR: I have examined the case of the Keystone Consolidated Mining Company, Original Amador Mining Company, Bunker Hill Quartz Mining Company, Eureka Quartz Mining Company, and Townsite of Amador City v. The State of California, on appeal to the Department from the decision of the Commissioner of the General Land Office of June 18, 1872.

The land in question is the east half of section 36, township 7 north, range 10 east, Mount Diablo meridian, in the State of California. The State claims the entire tract under the act of Congress of March 3, 1853 (10 Stat. 244, sec. 6), as school land. The mining companies claim a portion *See Frisbie v. Whitney, 9 Wall. 196; Hutchins v. Low, 15 Id. 77. +See Higgins v. Houghton, 25 Cal. 252.

of it under the act of July 26, 1866 (14 Stat. 251), and Amador City claims a part of it under the act of March 2, 1867 (14 Stat. 541). The land is mineral land, and said mining companies located their mines for most of the territory now claimed by them in 1851, and for the remainder in 1856, 1863, and 1864. They have continuously worked these mines from time of location to the present, and have expended on the same a large sum, exceeding one million dollars, and have realized from them a still larger sum. They have complied with all the provisions of the act of July 26, 1866, and have made their respective applications in due time.

Amador City was located on the half section in controversy, in the immediate vicinity of said mines, in 1851, and then had a population of about seventy-five persons. It contained about three hundred inhabitants at the date of the act of March 3, 1853, and now contains about five hundred. It has about one hundred dwelling-houses, two stores, two saloons, one hotel, one post-office, one express office, one telegraph office, one church, and one schoolhouse. It has filed an abandonment of all claim to any portion of the legal subdivisions upon which it is situated, so far as the same conflicts with the claim of either of the mining companies.

The survey of the township lines of said township 7 was completed August 27, 1869. The section lines were run March 10, 1870. The plat was approved September 30, 1870, and filed in the local office October 7, 1870. The State of California, on the fourth of November, 1870, sold to Henry Casey the east half of said section 36, for the sum of four hundred dollars, and the claim to the same is now prosecuted by him or those that claim under him.

Upon these facts, it is conceded by all parties to this contest, that each of the said mining companies is entitled to a patent for the lands claimed by it, unless the title for said half section is now vested in the State of California or its grantee. It is also conceded that the claim of Amador City is good and valid, unless in conflict with the title of the State or its grantee.

The local officers rejected the title of the State, and their decision was affirmed by the Commissioner.

The claimant under the State has appealed, and the whole case is now before this department on its merits. It involves a construction of the act of March 3, 1853, entitled "An act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes."

In attempting to ascertain the true meaning of this act, I shall assume, as hornbook law, that in every valid grant there must be a grantor capable of making the grant, a grantee capable of taking it, and a thing granted capable of identification with reasonable certainty; that all grants made by the General Government to individuals, corporations, or States, are to be construed strictly against the grantee, and that nothing passes by implication; that the intent of the law-makers is to govern, and that such intent is to be gathered from the entire act.

In the further examination of this case, I propose to consider the following inquiries:

First. When does title vest in the State to sections 16 and 36 under said act?

Second. Does the seventh section except from the grant, land upon which settlement has been made prior to survey for other purposes than pre-emption appropriation?

Third. Does the grant include mineral lands in sections 16 and 36?

First. When does title vest in the State to sections 16 and 36, under said act? Section 6 of the act reads as follows: "That all the public lands in the State of California, whether surveyed or unsurveyed, with the exception of sections 16 and 36, which shall be, and hereby are, granted to the State for the purposes of public schools in each township, and with the exception of land appropriated under the authority of this act or reserved by competent authority, and excepting also the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the pre-emption laws of fourth September, eighteen hundred and forty-one," etc.

It is claimed by appellant that this section contains a grant in præsenti to the State, taking effect from the date of the act, upon all tracts afterward located by government survey on sections 16 and 36 in each township, and that

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