on behalf of the government, to prospect the lands to ascertain what were mineral. And had it done so, in most instances it would have been unavailing, so far as ascertaining the real condition of the land is concerned. Repeated prospecting, at different times, and, by different parties, in practical work, is often required to disclose a mine. Without any provision for, positively, determining what lands are mineral, for the purposes of the act, at the time the grant attaches, there can be but one reasonable and safe rule, and that is to exclude those which are known to be mineral, or which upon inspection can be readily ascertained to be mineral. The odd sections are the subject-matter of the grant, and the mineral lands in the odd sections are the exceptions. The latter are taken out of the former. Now, the exceptions should be readily identified by inspection. If they cannot be identified by inspection, they are too indefinite and uncertain to be valid, and they must be void for uncertainty. The exception must be specifically pointed out, so that it can be readily ascertained. Exceptions are strictly construed. As an illustration, take a case on a section of the road where the line of the road is definitely located; the road is finished, and all the conditions subsequent are fully performed, the road accepted, and the title to whatever is within the grant, be it more or less, irrevocably vested in the railroad company. The lands are surveyed. So far as can be known by inspection and superficial examination, the lands appear to be timber lands, agricultural lands, or grazing lands, and they are in good faith purchased as such from the railroad company, and occupied as such by the purchaser. Are these lands, so situated, against the will of the purchasers, open to wandering prospectors to enter at will upon them, dig up the earth, sink shafts, run drifts, tunnels, etc., to see if they can find a mine? And failing to find a mine, is the land open year after year for other bands of prospectors to enter and repeat the performance ad infinitum? And should a mine, at last, after years of prospecting be found, is the purchaser to have his land taken from him on this exception? Yet such must be the consequence of the construction insisted upon by the defendants. If one quarter section is thus open to exploration, and the title thereto liable to be thereby defeated, by a discovery of a mine at any time, no matter how long, in the future, then every foot of land within the limits of the railroad grant, and even outside these limits, from Lake Superior to Puget sound, is in the same situation, and the title liable to be defeated in the same manner. No man can ever know whether he has a title or not, until a mine is discovered, when he learns that he has no title, but that the land belongs to the United States. I cannot bring my mind to believe it possible, that men of the intelligence and sound sense of those who constitute the senators, and members of the house of representatives in congress, could have deliberately and knowingly intended or contemplated any such result. And what adequate object is to be attained by such a construction as will destroy titles and be subversive of all confidence in titles to land in all these new states? For whose benefit is this extraordinary and hurtful condition of things to be imposed on the new states? Is it, that the government may obtain the insignificant

sum of $6 per acre for a small strip of land here and there at long distances apart, not exceeding 1,500 feet long by 600 feet wide? Or is it to give a preference to purchasers at that insignificant price, over permanent settlers, who have already purchased, paid for and improved lands in good faith, to a comparatively few nomadic prospectors, who remain at the same place but a short time?

Should it turn out in course of time, that indications of mines appear, the owners will be quite as likely to prospect for and discover any mine, that may be concealed in the depths of the earth there, as the professional prospectors; and the country, at large, will, in the end, be equally benefited by the result. Is there any object to be accomplished by such an unreasonable, and impracticable construction of the grant as is claimed for it, leading to such absurd consequences, that will compensate for the great wrong and injury that must, necessarily, be inflicted on the new states by removing all grounds for confidence in land-titles? When a dispute arises as to whether the land was known mineral land when the grant attached, it may always be safely intrusted to a jury to determine the point. As an instance see the special verdict and charge of the court on the trial of this same case cited of Francoeur v. Newhouse, 14 Sawy. 600, 43 Fed. Rep. 236. When the United States made the railroad grant, in order to secure the construction of that great transcontinental road through thousands of miles of a comparatively unsettled region, it intended to offer something substantial as an inducement. It gave nothing, for as usual, it doubled the price of all alternate sections, and, by the completion of the road made a market for these lands at the enhanced price. A large development of the resources of the country was also, thereby induced. Besides the government saved millions in the cost of transporting the mails, military forces, supplies, etc. For the United States, now, years after the road has been built, and been in successful operation, to insist upon the construction maintained by defendants is to discredit all the titles of the railroad company, and of those holding titles under it; to throw insuperable obstacles in the way of selling these lands by thus discrediting the titles, and to thereby deprive the company of the substantial aid, which it had reason to believe it was to receive upon the performance of the conditions of the contract on its part. There can, possibly, no benefit result to the United States, or to any persons, or classes of persons, designed to be favored thereby, by the construction of the act of congress insisted upon by defendants, that will at all compensate for the wrong to the railroad company and its grantees, occasioned by discrediting these titles, and the blight put upon the prosperity of all those new states, by destroying and subverting all grounds for confidence in the land-titles of those states. I am, myself, still satisfied with the rule laid down in Francoeur v. Newhouse. The court did not, it is true, pass upon the Northern Pacific grant, but it did construe substantially, the same language in a strictly cognate, and analogous provision, and I do not, myself, see how it can hold differently with reference to the railroad grant now in question, without overruling its prior decision. But the supreme court of the United

States, in Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628, a case but recently decided, has, as it appears to me, authoritatively, decided the question now involved, in strict accordance with the foregoing views. But for the fact, that it has been questioned by counsel, and my associate, whether this ruling, because arising under a townsite act, and not a railroad grant, is applicable to the case in hand, I should myself have supposed that the point was not open to any further doubt or discussion. Had it not been for this contention on their part I should have deemed it necessary, only, to refer to the case, and leave the matter there without further history of the question, and the prior discussion upon it, or further argument. The plaintiff in that case, relied upon a patent for a mine, bearing date January 15, 1880. The defendant upon a prior patent, issued under the town-site act, for the town-site of Butte, in Deer Lodge county, Montana, dated September 26, 1867, and conveyances from the patentee to the defendant. The latter being the earlier patent contained the clause, that "no title shall be hereby acquired to any mine of gold, silver, cinnabar, or copper." The town-site act, under which the patent issued, provides that "no title shall be acquired," under its provisions, "to any mine of gold, silver, cinnabar or copper." (Rev. St. § 2392.) And the general statute also provides: that "in all cases lands valuable for minerals shall be reserved from sale, except as otherwise directed by law." Section 2318. At the trial, after introducing this patent for the town-site and subsequent conveyance to him, defendant offered to prove by sundry witnesses that, "at the time the patent to the town-site was issued, the premises embraced by the Gold Hill lode were not known to be valuable for minerals of any kind." Objection was made to this evidence on the ground that the patent to defendants proved that the premises in fact contained valuable minerals, and therefore, could not under the statute be granted by patent for a town-site, which objection was sustained, an exception entered, and an appeal thereon taken. The question before the supreme court, and upon which the decision turned, was, whether the provision of the statute, that "no title shall be acquired" under the act "to any mine" merely, meant "any known mine;" or in other words, whether if there was no "known mine" on the land at the date of the patent, a mine existing in fact, but not discovered till some years afterwards, passed by the patent, notwithstanding the express prohibitory provision in terms so broad and comprehensive, of the statute? Or whether the provision only meant "known mine?" And the supreme court held that it was limited to known mines, and that the title to a valuable mine not known at the date of the patent, that is to say when the grant attached to the land, did pass under the patent, no withstanding this prohibitory provision, so comprehensive in its terms and, that, there was nothing left in the government to pass under the subsequent patent to those who had discovered the mine after the issue of the first patent. The court, consequently, held, that the exclusion of the evidence offered to prove that there was no "known mine" at the date of the patent, was erroneous; and it reversed the judgment on that ground alone.

It is urged, in this case, that to hold that a mine must have been known to exist at the date, when the railroad grant attached, in order to exclude it from the grant, is to unreasonably and without authority, introduce into the statute the word "known.” If that be so, then the same must be true as to the provision of exception or exclusion in the townsite act, that "no title shall be acquired" under its provisions "to any mine of gold, silver, cinnabar or copper," construed by the supreme court, in Davis v. Weibbold. Will it be seriously said, that the supreme court unwarrantably introduced the word "known" into that act, thereby largely limiting the scope of the exception, and largely enlarging the scope of the granting power of the act, as intended by congress? If this is the result, it was not attained, and this construction of the act, was not adopted, by any hasty ill-considered action of the court, for that tribunal deliberately reached its conclusion "after much consideration." Says the court:

"When the entry of the town-site was had, and the patent issued, and the sale was made to the defendant of the lots held by him, it was not known-at least it does not appear that it was known-that there were any valuable mineral lands within the town-site, and the important question, is, whether in the absence of this knowledge the defendant can be deprived under the laws of the United States of the premises purchased and occupied by him because of a subsequent discovery of minerals in them and the issue of a patent to the discoverer. After much consideration we have come to the conclusion that this question must be answered in the negative. It is true that the language of the Revised Statutes touching the acquisition of title to mineral lands within the limits of town-sites is very broad. The declaration that no title shall be acquired' under the provisions relating to such town-sites, and the sale of lands therein to any mine of gold, silver, cinnabar, or copper; or to any valid mining claim or possession held under existing laws,' would seem on first impression to constitute a reservation of such mines in the land sold, and of mining claims on them, to the United States; but such is not the necessary meaning of the terms used; in strictness, they import only that the provisions by which the title to the land in such town-sites is transferred shall not be the means of passing a title also to mines of gold, silver, cinnabar, or copper in the land, or to valid mining claims or possessions thereon. They are to be read in connection with the clause protecting existing rights to mineral veins; and with the qualification uniformly accompanying exceptions in acts of congress of mineral lands from grant or sale. Thus read they must be held, we think, merely to prohibit the passage of title under the provisions of the town-site laws to mines of gold, silver, cinnabar or copper, which are known to exist, on the issue of the town-site patent, and to mining claims and mining possessions, in respect to which proceedings have been taken under the law or custom of miners, as to render them valid, creating a property right in the holder, and not to prohibit the acquisition for all time of mines which then lay buried unknown in the depths of the earth. The exceptions of mineral lands from pre-emption and settlement and from grants to states for universities and schools, for the construction of public buildings, and in aid of railroads and other works of internal improvement, are held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure for its extraction, and known to be so at the date of the grant. There are vast tracts of country in the mining states which contain precious metals in small quantities, but not to a sufficient extent to justify the expense of their

exploitation. It is not to such lands that the term mineral' in the sense of this statute is applicable." 139 U. S. 518, 11 Sup. Ct. Rep. 632.

The closing paragraph shows that the court did not consider itself as limiting its construction to the town-site act, and such provisions, only, as have been here seriously contended, whether correctly or not, were alone in pari materia. It shows that the court considered the ruling as applicable to "grants for the construction of public buildings: in aid of railroads and other works of internal improvement," as well as to pre-emption, town-site, etc., grants. The cases cited from the state, and circuit courts of the United States, are nearly all cases of railroad grants, and the long citation, with approbation, from Cowell v. Lammers, 10 Sawy. 246, 257, 21 Fed. Rep. 200,-a case arising under a railroad grant,contains the passage laying down the rule as now established by the supreme court in the case cited, to-wit: "By the words 'mineral lands' must be understood lands known to be such, or which there is satisfactory reason to believe are such at the time of the grant or patent." After citing numerous rulings of the departments, the uniform decisions of the state and circuit courts, and its own implied recognition of the rule as stated in Cowell v. Lammers, and, now adopted in Davis v. Weibbold, where the decision of the point, as it is the great issue in the case, could not be avoided, the court proceeds:

"In connection with these views it is to be borne in mind also, that the object of the town-site act was to afford relief to the inhabitants of cities and towns upon the public lands, by giving titles to the lands occupied by them, and thus induce them to erect suitable buildings for residence and business. Under such protection many towns have grown up on lands which previously to the patent, were part of the public domain of the United States, with buildings of great value for residence, trade and manufacture. It would be in many instances a great impediment to the progress of such towns if the titles to the lots occupied by their inhabitants were subject to be overthrown by a subsequent discovery of mineral deposits under their surface. If their title would not protect them against a discovery of mines in them, neither would it protect them against the invasion of their property for the purpose of exploring for mines. The temptation to such exploration would be according to the suspected extent of the minerals, and being thus subject to indiscriminate invasion, the land would be to one having the title, poor and valueless, just in proportion to the supposed richness and abundance of its products. We do not think that any such results were contemplated by the act of congress or that any construction should be given to the provision in question which would lead to such results. Our conclusion as already substantially stated, is, that congress only intended to preserve existing rights to known mines of gold, silver, cinnabar or copper, and to known mining claims and possessions, against any assertion of title to them by virtue of the conveyances received under the town-site act, and not to leave the titles of purchasers on the townsites to be disturbed by future discoveries." 139 U. S. 525, 11 Sup. Ct. Rep. 635.

These observations as to the great impediment which the construction insisted upon by defendants, would throw in the way of the prosperity of towns, apply, as we have already seen, with, at least, equal if not greater force with reference to the obstruction to the progress and pros