"We agree to all that is urged by counsel as to the conclusiveness of the patents of the land department when assailed collaterally in actions at law. We have had occasion to assert their unassailibility in such cases in the strongest terms, both in Smelting Co. v. Kemp, 104 U. S. 636, 640-646, and in Steel v. Smelting Co., 106 U. S. 447, 451, 452, 1 Sup. Ct. Rep. 389. They are conclusive in such actions of all matters of fact necessary to their issue, where the department had jurisdiction to act upon such matters and to determine them; but if the lands patented were not at the time public property, having been previously disposed of, or no provision had been made for their sale, or other disposition, or they had been reserved from sale, the department had no jurisdiction to transfer the land, and their attempted conveyance by patent is inoperative and void, no matter with what seeming regularity the forms of law have been observed. In the several cases to which we have been referred in the fifth and sixth Montana Reports, (Milling Co. v. Clark, 5 Mont. 378, 5 Pac. Rep. 570; Talbott v. King, 6 Mont. 76, 9 Pac. Rep. 434; Butte City Smoke-House Lode Cases, 6 Mont. 397, 12 Pac. Rep. 858,) which involved contests between parties claiming under mining patents and others claiming under town-site patents, and in which very able and learned opinions were given by the supreme court of the territory of Montana, the mining claim patented had been located and the rights of the mining claimant had thus attached before the town-site patent was issued. The patent, which, subsequently, followed was a mere perfection of the right originated by the location, and to which it took effect by relation. It was held in accordance with this opinion, that the prior mining location was not affected by the townsite entry." 139 U. S. 529, 11 Sup. Ct. Rep. 636.

So, that, in this class of cases, the ascertainment, and final determination as to the mineral character of the land, as against the company, cannot, as contended be left to the commissioner on the issue of the patent. And if the determination be so made, his decision against the company would not be conclusive, as to whether the title to the land had or had not already passed out of the United States under the congressional grant. A patent wrongfully issued to others, however, could be collaterally attacked, by the company on its patent, even in an action at law, and the company without a patent could stand upon its legislative grant attaching upon the definite location and completion of the road as required by the act, even against subsequent patents, wrongfully, issued to other parties. Indeed the commissioner is not in a position, in this class of cases, to summon witnesses and, intelligently, investigate, and finally decide the facts as to the mineral character of all the odd sections of lands, either at the date of the attaching of the grant, or of the issue of the patent; and if he were invested with such final jurisdiction, the point of time to which the investigation should be directed, would be, the date when the line of the road became definitely fixed, and a plat thereof filed in the office of the commissioner of the landoffice the date at which the grant became attached to the specific sections of land, and not the date of the issue of the mere confirmatory patent. Again on his views of the law, the commissioner often refuses to issue patents to the railroad company in cases where it is entitled to them. In such cases the company would have no remedy, as to those lands, unless the foregoing views are correct. There could then be no patent to settle the question.

Under these various decisions of the supreme court, and others cited by that tribunal, with approbation, I am satisfied that to exclude the lands from the operation of the grant, they must be known to be mineral at the date when the line of the road becomes definitely fixed, and a plat thereof filed in the general land-office,-in this case on July 6, 1882,-and that the demurrer to the complaint must be overruled. My associate dissents in a very able opinion, in which he very, forcibly, and lucidly, presents, as it seems to me, all that can be said in opposition to the views herein expressed. My own conclusions, however, I have reached after repeated and thorough examination, and I cannot see the case in any other light. The points of difference between us, therefore, must be left to the supreme court, to authoritatively, determine.

This, I believe, is a representative case-several others depending upon its decision. I suppose the facts in the complaint are alleged as they must turn out in the proofs. If that be so, then a default might be safely suffered, and a judgment entered before the 1st of July, and an appeal taken to the United States supreme court. Otherwise, the appeal will go to the circuit court of appeals. It is desirable that a question affecting interests so vast should be determined by the highest court in the land. Under the provisions of section 650, Rev. St., when there is a difference of opinion between the circuit and district judges, sitting together, the opinion of the presiding judge prevails for the time being. In pursuance of these provisions, let the demurrer to the complaint be overruled, and the defendants have 10 days within which to file their

answer.

KNOWLES, J., (dissenting.) This is an action at law. The complaint sets forth sufficient facts to show that plaintiff received a grant from the United States of all odd alternate sections of land within 40 miles of the line of its railroad as definitely located in Montana, not mineral, and which at the time its line of railroad was definitely fixed, were not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other claims or rights. It is further set forth that the land described in the complaint was a portion of one of the said odd sections within 40 miles of the line of the road of plaintiff as definitely located; that defendants have taken possession of the same, and now withhold the possession thereof from plaintiff. It is not stated directly that the said land is non-mineral, but that it was not known to be such at the date of said grant on July 2, 1864, nor, at the time the general route of said railroad was located in 1872. It is alleged, however, that it was more valuable at said dates for grazing, than mining purposes and that when the land was surveyed in 1868, it was returned by the surveyor as non-mineral. In 1886, it is alleged that plaintiff listed in the United States land-office at Helena, with other lands, the premises in controversy, and paid for filing such list the fees allowed by law, and the receiver duly accepted the same and approved of said list, and certified the same to the commissioner of the general land-office, and that that list remains in both land-offices, and no part of the fees so paid have been returned to v.46F.no.10-39

plaintiff. It is also alleged that at the time of filing said list said land was not known to be mineral, or had any value for mining purposes, but that during the year 1888, certain veins or lodes of rock in place bearing gold, silver and other precious metals were discovered thereon, and thereafter to-wit, on the 20th day of June, 1888, a portion of defendants and under whom the others claim located said lodes as mineral land under the name of the "Vanderbilt," "Four Jacks," "N. Y. Central” and "Hudson River" respectively, and on the 9th day of May, of said year, another lode under the name of the "Chauncey Depew" lode, and that they are now in possession of said locations and are extracting ore therefrom, and have taken therefrom ore of over the value of $100, and that the value of all the property is over $6,000. The defendants have demurred to this complaint, on the ground that the same does not state facts sufficient to constitute a cause of action.

There is, undoubtedly, much in this complaint that might be called redundant or irrelevant matter. But concerning this the court is not called to rule. If a complaint states facts which show that plaintiff is not entitled to recover, then the ground of demurrer, that it does not state facts sufficient to constitute a cause of action will lie. In this case plaintiff undertook to set up certain facts which would show that the land in controversy was within the grant to it, and not within the exception of that grant as being mineral, as that grant, it claims, should be interpreted. In order to recover for rents, issues and profits, the location of lodes on the premises and the extracting of ore therefrom is averred. It appears also that no patent had ever issued to plaintiff for the premises. While the complaint is not as satisfactory as it might be, upon the point as to whether the premises are now known to be mineral land or not, still, I think enough appears to show that they are of that character. It appears that they are over the value of $6,000, and that over $100 worth of ore has been taken from them, and that the lodes located contain gold and silver. I do not conceive that in determining whether or not land is mineral land the question is whether or not it is more valuable for the mineral therein, than it is for grazing or agriculture. The statute of the United States, upon mineral lands is "in all cases land valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law." Rev. St. U. S. § 2318. So I would say, that lands which have a market value for the minerals therein, without any reference to any other character or quality connected therewith are mineral lands. I do not think it is necessary to show that the lands contain paying mines. Such has not been the accepted definition of mineral lands in the land department of the United States, or by those engaged in mining avocations in this country. Land is being claimed almost every day as mineral, which contain no such mines, and the United States land department is almost daily issuing patents for such lands as mineral. The term "mineral lands" must be considered as having been used by congress in the sense in which that term was used by practical men in mining engaged in that industry at the date of the grant. Lands are often sold for large sums of money on account of the

minerals therein which have never been worked to a profit for such. With this definition of mineral lands, I think it safe to say that the premises in controversy must be classed as mineral.

The question then arises, whether, not having been known to be mineral at the date of the grant of land to plaintiff on July 2, 1864, nor at the date when the general route of its road was located in 1872, nor at the time it was listed by plaintiff for patent as within its grant, in 1886, but now, known to be mineral, it must be classed as within plaintiff's grant. The grant of land to the Northern Pacific Railroad Company, is contained in the third section of the statute of the United States organizing that company, and the part necessary to be considered in this case is as follows:

"That there be and is hereby granted to the Northern Pacific Railroad Company, its successors and assigns for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe transportation of the mails, troops, munitions of war and public stores, over the route of said railway, every alternate section of public land not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line as said company may adopt through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad where it passes through any state, and whenever on the line thereof the United States have full title not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land-office: * * * Provided, further, that all mineral lands be, and the same are hereby excluded from the operations of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands in odd-numbered sections nearest to the line of said road may be selected as above provided."

The contention of plaintiff is that the above grant is one in præsenti conveying the fee to it at the date thereof, and that it should embrace all lands within the limits of its grant not known to be mineral, or which there was no reasonable ground for believing to be mineral at such date. In other words, in the exception, and in the proviso in the grant in regard to mineral lands it should read, not known to be mineral or which there was no reasonable ground for believing to be mineral. This brings up for consideration the question, as to how this grant should be construed. It is a public or legislative grant made by a statute of congress.

"In all questions of construction arising under grants between the government and the citizen, a different rule prevails in one respect from that adopted in questions between individuals. Between the latter, the construction if doubtful, is always to be in favor of the grantee and against the grantor, whereas in the case of the government, the construction is always against the grantee and in favor of the government." 3 Washb. Real Prop. (4th Ed.) p. 190.

One of the leading cases upon the subject of legislative grants is that of Charles River Bridge v. Warren Bridge, 11 Pet. 420. It is a case very often referred to, and is the foundation of much of the federal jurisprudence upon this point. The decision was delivered by the distinguished

Chief Justice TANEY, and in it the court said: "The rule of construction in such cases is well settled both in England, and by the decisions of our own tribunals." In 2 Barn. & Adol. 793, in the case of Stourbridge v. Wheeley, the court says:

"The canal having been made under an act of parliament, the rights of the plaintiff are derived entirely from that act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute, and the rule of construction in all such cases is now fully established to be this, that any ambiguity in the terms of the contract must operate against the adventurers, and in favor of the public, and the plaintiff can claim nothing that is not clearly given by the act."

This rule of construction is fully adopted by the supreme court in the above case. This question came again before the supreme court in the case of Railroad Co. v. Litchfield, 23 How. 66, and it holds this language, in referring to a legislative grant similar to the one of plaintiff's under consideration:

"All grants of this description are strictly construed against the grantees; nothing passes but what is conveyed in clear and explicit language, and as the rights here claimed are derived entirely from the act of congress, the donation stands on the same footing of a grant by the public to a private company, the terms of which must be plainly expressed in the statute, and if not thus expressed they cannot be implied."

And in this case the court quotes with approval, the reason for this rule of construction from, Gildart v. Gladstone, 11 East, 675:

"The reason of the above rule is obvious-parties seeking grants for private purposes usuaily draw the bills making them. If they do not make the language explicit and clear to pass everything that is intended to be passed, it is their own fault, while on the other hand such a construction has a tendency to prevent parties from inserting ambiguous language for the purpose of taking by ingenious interpretation and insinuation, that which cannot be ob tained by plain and express terms."

In the case of Rice v. Railroad Co., 1 Black, 360, the supreme court say: "It is the settled rule of construction that public grants are to be construed strictly and that nothing passes by implication." It has been urged, however, that the legislative or public grant in the case at bar was for a valuable consideration and should therefore be subject to the same rule of construction as grants between private parties, and hence liberally in favor of the grantee, and in such a manner as to give it a full and liberal operation, so as to carry out the legislative intent. It is not necessary now to discuss this rule of interpretation and show its limitations.

Every one of the above legislative grants referred to were made upon the same consideration as the grant to plaintiff, namely the construction of an internal improvement of some value to the public. The supreme court, however, has held that all these grants are subject to be strictly construed, and in the case of Leavenworth, etc., R. Co. v. U. S., 92 U. S. 733, it was held that all these railroad grants should receive a strict construction against the grantee. In that case the court held this language: