Barden v. Northern Pacific Railroad Company/Dissent Brewer

Mr. Justice BREWER, dissenting.

I dissent from the opinion and judgment of the court in this case. The burden of the opinion seems to be that the magnitude of that which is supposed to pass by the grant, as construed by defendant in error, is so great that it cannot be believed that congress intended to make such a donation, and therefore rules of decision, repeatedly affirmed, and hitherto the settled law in the construction of such grants, are set aside, and a new rule established,-whether applicable to this grant alone, or also hereafter to be considered as applicable to the whole body of law in respect to public lands, I know not, nor is it affirmed. I respectfully insist that the magnitude of the loss supposed to result to the government is a mere chimera of the imagination, ignotum pro magnifico,-and that, even if it be ever so great, it furnishes no ground for a departure from settled rules and established law.

The grant of land to the Northern Pacific Railroad Company is enormous. No one disputes that. But, before being appalled by its magnitude, it is fitting that a comparison be made between it and others, accepted and construed without fear of results. If it be said that its total area is vastly in excess of that of any other congressional grant, it must at the same time be remembered that the length of the road, in aid of whose construction it was made, is also greatly in excess of that of any other road theretofore or since thus aided. The only fair method of comparison is that by mile. Tested in that way, it is the same as other grants. Texas Pacific Railroad Grant, 16 Stat. 573. And it it is only twice as large as that to the Union Pacific Railroad and the Central Pacific Railroad; and they, in addition, were aided by the bonds of the nation to the amount of $16,000 a mile, with an increase, in the mountainous portions of the road, to $32,000 per mile. I affirm that the value of the grant, unquestioned hitherto, to the Union Pacific Railroad and the Central Pacific Railroad Companies, was greater per mile than that to the Northern Pacific Railroad Company, and that this defendant in error would at any time have been glad to make an exchange therefor, mile for mile.

It is true that the country through which this proposed road was to run was in 1864 an unknown and uninhabited region, but I deduce therefrom a conclusion the very opposite of that drawn in the opinion of the court. The corporation, the recipient of this grant, would never have moved in the construction of the road if it had not supposed that, upon the definite location of its line, it would receive, in accordance with the rulings of this court, an absolute and unquestioned title to all the lands within the limits of its grant, at that time not taken by homestead or pre-emption right, and not known to be mineral lands, and thus excepted from the operation of the grant. Neither would the mortgage placed upon the road and its land grant, as authorized by the act of congress, have ever successfully appealed to the confidence of the possessors of money, except upon like belief. The limits of the place lands were fixed by the terms of the act, and also the limits of the indemnity lands. If, at the time of the definite location, there was no certainty as to what lands within the place limits passed by the grant, there was also an equal uncertainty as to what lands within the indemnity limits could be selected, and an absolute impossibility of making any selection, because of ignorance as to the extent of the loss in the place limits; and when it is affirmed that at the time of the definite location there was no certainty as to whether any lands passed by this grant, either within the place or indemnity limits, the assertion is, necessarily, that the mortgagees were invited to loan their money upon a security, of the existence of any part of which there was no certainty, and could not be any certainty, until after congress, by a subsequent act, had appropriated money for an exploration, of which there is no hint in the granting act. Such an assertion is equivalent to saying that congress invited parties to lend upon real-estate security, the title to no acre of which no act of mortgagor or mortgagee could ever certainly secure. It may be that, in the far days to come (and 30 years have passed since the passage of the act without any effort on the part of congress in that direction), it shall suit congress to appropriate money for an exploration of the character of these lands; and it may then be found that every quarter section, though not known to be when the line was definitely located and the road fully constructed, is in fact possessed of minerals, and therefore excepted from the operation of the grant. I respectfully submit that it ought not to be imputed to congress that it invited a loan on securities which might turn out to be but apples of Sodom, beautiful to the eyes, but ashes to the taste.

Much is said of the possible mineral wealth within the area of this grant, and we are told that, when the government was in the financial stress caused by the war, it is not to be supposed that congress would willingly throw away this enormous mineral wealth; but surely that suggestion has not even the semblance of force. There has been no reservation of mines or minerals to the government. On the contrary, the entire purpose in respect to mines has been and is expressed in the two rules: First, ordinary lands are given to all willing to make homesteads of them, and sold to others for $1.25 per acre, and, when conveyed, carried all mines and minerals beneath the surface; second, as to the ungranted and still public lands, they are open to exploration by individuals, and the discoverer of mines is entitled to purchase the land embracing the mines on the payment of $5 per acre, if the mine is a lode or vein, and $2.50 an acre if it is a placer mine.

Obviously, no visions of an undiscovered 'wealth of Ormus or of Ind,' out of which the debts of the war were to be paid, floated before the eyes of congress when this legislation was pending, and prompted the exception of mineral lands. The only purpose was to secure to the individual explorer an opportunity to search for the as yet undiscovered mines. But that purpose was no more significant and no stronger than that to secure to the individual emigrant the opportunity to acquire a homestead, or to preempt a farm; and this right, as always held, expired when the definite location of the road was made. Under what theory can it be said that it was more important, and more within the thought of congress, to give time to the individual to hunt through the country in pursuit of mines, than to the emigrant pioneer to locate a home or purchase a farm?

But it is said that congress never meant that this vast mineral wealth should pass to this corporation, and that the individual must contract with that corporation for the purchase of any mine. And yet with a strange inconsistency, as it seems to me, before the opinion is closed, it is declared, in effect, that congress meant that when the president should issue a patent the mineral wealth, vast as it is supposed to be, should then pass to the corporation. If congress, by its legislation, excluded mineral lands from the scope of this grant, then, surely, no executive officer is authorized to convey mineral lands, and even the patent of the president passes no title thereto. The concession that a patent conveys the mines, as incident to the conveyance of the land, is a concession that the language of the grant, excluding from the operation of the grant mineral lands, is not to be taken absolutely, and leaves the only difference between the opinion of the court and my own that of the time as to which the identification of the lands as mineral lands is to be had.

Coming to the matter of identification, the rule uniformly lad down heretofore in the construction of all railroad grants, including those with like exception of mineral lands, has been that the identification takes place at the time of the definite location. Out of the multitude of cases in which this doctrine has been laid down, I quote from one in which this very grant to the Northern Pacific was under consideration.

In St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U.S. 1, 5, 11 Sup. Ct. 389, it was said:

'As seen by the terms of the third section of the act, the grant is one in praesenti; that is, it purports to pass a present title to the lands designated by alternate sections, subject to such exceptions and reservations as may arise from sale, grant, pre-emption, or other disposition previous to the time the definite route of the road is fixed. * *  *

'This is the construction given to similar grants by this court, where the question has often been considered. Indeed, it is so well settled as to be no longer open to discussion. Schulenberg v. Harriman, 21 Wall. 44, 60; Leavenworth, L. & G. R. Co. v. U.S., 92 U.S. 733; Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co., 97 U.S. 491; Railroad Co. v. Baldwin, 103 U.S. 426. * *  *

'It is contended that they are qualified and restricted by the provision of the fourth section, that, whenever twenty-five miles of the road are completed in a good, substantial, and workmanlike manner, and the commissioners appointed to examine the same have made a report to that effect to the president, patents shall be issued 'confirming to said company the right and title to said lands, situated opposite to, and coterminous with, said completed section of said road.' This provision, it is urged, is inconsistent with the theory that a title to the lands had previously vested in the company. We do not think so. There are many reasons why patents should be issued upon the completion of each section of the road. They would not only identify the lands as coterminous with the completed section, but they would be evidence that, as to that portion of the road, the conditions of the grant had been complied with, and that it was thus freed from any liability to forfeiture for a disregard of them. They would also obviate the necessity of any further evidence of the grantee's title. As deeds of further assurance, they would thus be of great value, in giving quiet and peace to the grantee's possession. There are many instances in the legislation of congress where patents are authorized to be issued to parties in further assurance of their title, notwithstanding a previous legislative grant to them, or a legislative confirmation of a previously existing claime. The previous grant or confirmation is in no respect impaired thereby, or its construction affected. See, on this point, Langdeau v. Hanes, 21 Wall. 521; Wright v. Roseberry, 121 U.S. 488, 497, 7 Sup. Ct. 985.'

I refer also to the case of Salt Co. v. Tarpey, 142 U.S. 241, 247, 12 Sup. Ct. 158. That was a case involving the construction of the grant to the Central Pacific Railroad Company, which grant, as the one before us, excluded from its operation mineral lands. No patent had issued for the particular tracts. The plaintiff claimed by lease from the Central Pacific Railroad Company, and brought an action of ejectment against the defendant in possession. The trial court charged the jury that, although no patent had been issued, on the definite location of the line of the road the title to the lands within the place limits passed to the company, unless they had been previously sold, reserved, or otherwise disposed of by the United States, or a pre-emption, homestead, swamp-land, or other lawful claim had attached to them, or they were known to be mineral lands, or were returned as such. A judgment rendered in favor of the plaintiff upon such an instruction was sustained by this court, and it was distinctly held that a full title had passed to the railroad company. There was no pretense in that case of any ruling as to the character of the land by the interior department, or any determination by the secretary of the interior that this was not mineral land. In disposing of the case this court said:

'By the terms of the act making the grant the contention of the defendant is not supported. Those terms import the transfer of a present title,-not one to be made in the future. They are that 'there be and is hereby granted' to the company every alternate section of the lands. No partial or limited interest is designated, but the lands themselves are granted, as they are described by the sections mentioned. Whatever interest the United States possessed in the lands was covered by those terms, unless they were qualified by subsequent provisions,-a position to be presently considered.

'In a great number of cases, grants containing similar terms have been before this court for consideration. They have always received the same construction,-that, unless the terms are restricted by other clauses, they import a grant in praesenti, carrying at once the interest of the grantor in the lands described. Schulenberg v. Harriman, 21 Wall. 44; Leavenworth, L. & G. R. Co. v. U.S., 92 U.S. 733.

'In Wisconsin Cent. R. Co. v. Price Co., 133 U.S. 496, 507, 10 Sup. Ct. 341, referring to the different acts of congress making grants to aid in the construction of railroads, we stated that they were similar in their general provisions, and had been before this court for consideration at different times; and, of the title they passed, we said: 'The title conferred was a present one, so as to insure the donation for the construction of the road proposed against any revocation by congress, except for nonperformance of the work within the period designated, accompanied, however, with such restrictions upon the use and disposal of the lands as to prevent their diversion from the purposes of the grant.'

'As the sections granted were to be within a certain distance on each side of the line of the contemplated railroad, they could not be located until the line of the road was fixed. The grant was therefore in the nature of a float; but when the route of the road was definitely fixed the sections granted became susceptible of identification, and the title then attached as of the date of the grant, except as to such parcels as had been in the mean time, under its provisions, appropriated to other purposes.

'That doctrine is very clearly stated in the Leavenworth Case, cited above, where the language of the grant was identical with that of the one under consideration, and the court said: 'There be and is hereby granted' are words of absolute donation, and import a grant in praesenti. This court has held that they can have no other meaning; and the land department, on this interpretation of them, has uniformly administered every previous similar grant. They vest a present title in the state of Kansas (the grantee named), though a survey of the lands and a location of the road are necessary to give precision to it, and attach it to any particular tract. The grant then becomes certain, and, by relation, has the same effect upon the selected parcels as if it had specifically described them.

'The terms used in the granting clause of the act of congress, and the interpretation thus given to them, exclude the idea that they are to be treated as words of contract or promise, rather than, as they naturally import, as words indicating an immediate transfer of interest. The title transferred is a legal title, as distinguished from an equitable or inchoate interest.'

It is a misconstruction of the decision to say that the court only held that an action could be maintained for the possession of lands not mineral; for it was neither alleged nor proved that the lands were not mineral, but simply that at the date of the definite location they were not known to be mineral. The same allegation and proof could have been made in this case if the action had been brought two years before the discovery of the mineral, and four years after the definite location; and the court then, under the authority of the Tarpey Case, would have been compelled to sustain a judgment in favor of the company, declaring it the owner of the land, while now it enters the very opposite judgment,-that the company is not the owner. So, in the Tarpey Case, if, the day after the opinion of this court had been announced, some enterprising explorer had discovered a mine of value within the limits of the tract in controversy in that case, following this opinion, the court would have been compelled to hold that the company had no title,-never had had any title,-although it had affirmed a judgment declaring that it had the title. It is impossible to uphold such a difference of ruling on anything equivalent to a condition subsequent; for, as held in Schulenberg v. Harriman, 21 Wall. 44, no one can take advantage of the nonperformance of such a condition but the grantor or his heirs or successors, and the government has taken no action in respect to the title to this tract since the discovery of the mineral.

These decisions could be supplemented by a score and more in which the same doctrine has been affirmed and reaffirmed, until, as said in the quotation first above made, 'it is so well settled as to be no longer open to discussion.' All these authorities are, in effect, wholly overthrown by this decision; for there is no identification of the lands passing by the grant, unless it is known, and can be known, at the time what lands pass. Take any particular mile of the road. On either side of the line, as located, there are 20 alternate sections within the place limits. By the rule now laid down, the title to no one of these 20 sections passes to the company, because it is not known absolutely which are mineral lands. So far as known, none may be mineral; any yet, as in this case before us, six years after that line of definite location, an exploration develops the fact of minerals, and then it is declared that the title did not pass. When you simply say, as the court does in this opinion, that out of those 20 sections there shall pass the title to such lands as shall thereafter be found or be determined by the secretary of the interior to be nonmineral lands, you say, in effect, that there is no identification of a single tract. This court has hitherto said that when the line of definite location was fixed the lands granted were identified. That means, if it means anything, that the particular tracts which passed by the grant were disclosed. Now it is said that they are not disclosed, and cannot be identified as passing by the grant until it shall be affirmatively proved that they do not contain mines, or the secretary of the interior has determined that they are not mineral lands. There is, therefore, at the time, no identification of the particular lands which pass, as has always heretofore been declared. It is true, as suggested, that it is no uncommon thing to make a grant of lands with a reservation of mines or minerals; and, if such were the reservation in this case, there would be no question as to the matter of identification. But there is, in this case, no reservation of mines or minerals. No land passes with a reservation of anything underneath the surface. There is simply an exception of mineral lands from the operation of the grant, and there has got to be something to separate and distinguish one class of lands, to wit, mineral lands, from the other nonmineral lands, before there is any identification as to any lands. So, unless there is that which, at the time of the definite location, distinguishes lands nonmineral from lands mineral, there is no identification of any particular tract as passing under this grant.

In the case of Davis' Adm'r v. Weibbold, 139 U.S. 507, 524, 11 Sup. Ct. 628, this court said:

'It would seem from this uniform construction of that department of the government specially intrusted with supervision of proceedings required for the alienation of the public lands, including those that embrace minerals, and also of the courts of the mining states,-federal and state,-whose attention has been called to the subject, that the exception of mineral lands from grant in the acts of congress should be considered to apply only to such lands as were at the time of the grant known to be so valuable for their minerals as to justify expenditure for their extraction.'

And again, on page 519, 139 U.S., and page 628, 11 Sup. Ct.:

'The exceptions of mineral lands from preemption 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 improvements, are not 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.'

It is probably unnecessary, in view of this declaration as to the uniform construction by the land department, to refer to any specific rulings therein, and yet the following illustrations may not be amiss: By the act of March 3, 1853 (10 Stat. 244), it was provided (section 6) 'that all the public lands in the state of California, whether surveyed or unsurveyed, * *  * excepting also the lands claimed under any foreign grant or title, and the mineral lands, shall be subject to the preemption laws of fourth September, 1841, with all the exceptions, conditions, and limitations therein, except as is herein otherwise provided.' In a circular of instructions issued to the registers and receivers in California, October 12, 1853, construing this act, Commissioner Wilson defines the above exception of 'mineral lands' as 'lands on which are situated any known salines or mines.' 1 Lester, Land Laws, p. 698.

In State v. Poley, 4 Copp, Landowner, this question, as stated by Secretary Schurz, was presented, arising under the congressional grant of school lands to the state of California:

'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?'

'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. If, following the doctrines 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 affected? 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 the land in sections 16 and 36, subsequent to survey, does not defeat the title of the state to the same, as school lands.'

Again, the land department can acquire no knowledge as to whether these lands are mineral or not, except by exploration; and that requires the labor of explorers, and the payment of their compensation therefor. That congress never contemplated that there should be any such exploration, as a condition of passage of title, is evident from the fact that 30 years have passed since the date of this grant; 32 years since the date of the grant to the Union Pacific and Central Pacific Railroad Companies, which also excluded mineral lands,-and never has an act been passed, or, even so far as we are advised, a bill offered in congress, contemplating the appropriation of a single dollar for such an exploration. Aside from an exploration conducted by the government, at its expense, the only way that knowledge could be acquired would be through the personal efforts of individual explorers. Was it contemplated by this act that the secretary of the interior should have authority to wait so long as he saw fit for the results of these individual explorations, before finding and determining that any particular tract was mineral or not? Assuredly, a suggestion of such a purpose on the part of congress would border closely on disrespect to the intelligence and integrity of that body.

But congress knew that provision had already been made for ascertaining the character of these lands. Rev. St. § 2395, contains these provisions:

'Seventh. Every surveyor shall note in his field-book the true situations of all mines, salt licks, salt springs, and mill seats which come to his knowledge, all water courses over which the line he runs may pass, and also the quality of the lands.

'Eighth. These field-books shall be returned to the surveyor-general, who shall cause therefrom a description of the whole lands surveyed to be made out and transmitted to the officers who may superintend the sales. He shall also cause a fair plat to be made of the townships and fractional parts of townships contained in the lands, describing the subdivisions thereof, and the marks of the corners. This plat shall be recorded in books to be kept for that purpose; and a copy thereof shall be kept open at the surveyor-general's office for public information, and other copies shall be sent to the places of the sale, and to the general land office.'

By the act of July 26, 1866 (14 Stat. 251), the mineral lands of the public domain were declared to be free and open to exploration or occupation, and provision was made for the entry and patenting of a vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, or copper.

In a circular of instructions issued under this act January 14, 1867, the commissioner says of section 11:

'In order to enable the department properly to give effect to this section of the law, you will cause your deputy surveyors to describe in their field-notes of surveys, in addition to the data required to be noted in the printed manual of surveying instructions, on pages 17 and 18, the agricultural lands, and represent the same on township plats by the designation of 'Agricultural Lands." 2 Lester, Land Laws, 317.

It is true that such survey and report only give what are the surface indications of the tracts, but any other examination and exploration for discovering minerals beneath the surface require, as any one can see, a large expenditure of money; and it may well be believed that congress, knowing that the surveys which were already provided for would disclose the character of the lands, so far as they could be disclosed by the surface appearances, meant that the field books returned to the land department, containing that information, should be that which should guide in the identification of the tracts at the time of the definite location, as mineral or not mineral.

Again, the section by which the land grant was made to the Northern Pacific Railroad Company, after defining the place limits of the grant, and providing for the definite location of the line of the road, contained this clause (13 Stat. p. 368):

'And whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections.'

But unless at the time of that definite location there was an identification of the particular lands within the place limits which passed, how could there be any selection in the indemnity limits? Take this particular tract in controversy before us. If, after the definite location, the company had applied to the secretary for a selection of land within the indemnity limits in lieu of this tract, would not the secretary have been compelled to refuse such selection, on the ground that, so far as was known, this was not mineral land, and therefore passed by the grant? And if now, after the lapse of six years, mineral is discovered, and it is adjudged that the title does not pass, is it not possible nay, probable-that, when selection is sought of lands within the indemnity limits, it will be found that all have been taken by homestead or pre-emption? Or, if not, and a selection is made of any particular tract within those limits, will not the land thus selected, and supposed to pass to the company, come within the rule here announced,-that if, before the patent shall issue, mines be discovered, it must be adjudged mineral land, and therefore not passing by the selection? In other words, the title to no lands within the place limits passes, because it is unknown whether they are mineral or not, and no selection can be made within the indemnity limits, because it is not known how much the deficiency is.

Again, in section 4 of the same act, it is provided that after the completion of 25 consecutive miles of road, commissioners shall be appointed by the president to examine as to whether the road has been completed in a substantial and workmanlike manner, and if they make a favorable report—

'Patents of lands, as aforesaid, shall be issued to said company, confirming to said company the right and title to said lands, situated opposite to, and coterminous with, said completed section of said road; and, from time to time, whenever twenty-five additional consecutive miles shall have been constructed, completed, and in readiness as aforesaid, and verified by said commissioners to the president of the United States, then patents shall be issued to said company conveying the additional sections of land as aforesaid, and so on as fast as every twenty-five miles of said road is completed as aforesaid.'

If language can make anything plain, it is that, when the commissioners have reported favorably as to the construction of any 25 consecutive miles of road, the right to a patent exists. It was said in Stark v. Starrs, 6 Wall. 402, 418:

'The right to a patent once vested is treated by the government, when dealing with the public lands, as equivalent to a patent issued. When, in fact, the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary to cut off intervening claimants.'

When this case was argued before us at the last term, it was conceded by the attorney general that, if it was not known that the lands were mineral at the time of that report, the title then passed. Such a concession on the part of the government, if now recognized, would compel an affirmance of this judgment; for, at the time the commissioners made report as to the 25 consecutive miles adjacent to this tract, no mineral had been discovered, and, so far as known, the land was not mineral. But the court, in this opinion, repudiates such concession, and holds that the matter of determination remains open until the very issue of the patent.

Again, by a resolution of May 31, 1870 (16 Stat. 378), the Northern Pacific Railroad Company was authorized to issue its bonds secured by mortgage upon its entire property. Did congress mean to imply that at that time no specific tracts passed by the mortgage, but only such as might thereafter be determined by the land department to be nonmineral? That resolution contained also this provision:

'Provided, that all lands hereby granted to said company which shall not be sold or disposed of or remain subject to the mortgage by this act authorized, at the expiration of five years after the completion of the entire road, shall be subject to settlement and preemption like other lands, at a price to be paid to said company not exceeding two dollars and fifty cents per acre.'

How could the company sell any particular tract, unless at the time the purchaser knew that the title of the company was perfect? And if the company had failed to place its mortgage, as it most certainly would have failed if the construction now contended for had been believed to be the true construction of this grant, then, by the terms of this provision, at the end of five years from the completion of the road any tract would be open to settlement and pre-emption, as are the public lands of the government.

Again, it is abundantly well settled that lands, the title to which remain in the government, are not subject to taxation. Can it be that congress contemplated that the territories and states which should be organized along the line of this transcontinental highway should not be able to tax any alternate sections within the place limits of this grant until such time as it should appropriate money for an exploration as to their character? Take this particular tract for illustration: In 1872 the line of definite location was fixed. Apparently, it was within the terms of the grant; but it is now adjudged that no title passed to the Northern Pacific, but remained in the government. Was the land subject to taxation during the six years prior to the discovery of the mines? Will it be said that congress intended that the Northern Pacific should pay the taxes on all the lands so situated, taking the chances in the future of some of them proving to be nonmineral? Would such injustice be imputed to congress, even as against a corporation? Suppose the Northern Pacific did not pay, and some party purchased the land at a tax sale. Has he lost his money because the land now proves to be mineral lands, and therefore still the property of the government? Or, if the state is under obligation to refund the money thus improperly collected in the way of taxes, what then results? The state or county has regulated its tax levy and its expenditures upon the supposition that these lands were subject to taxation. If the title has not passed from the government, they are not taxable, and a new burden must be cast upon the property of individuals within the territorial limits to make good the unexpected deficiency of public funds.

It is well known, in the history of this and similar land grants, that there was an earnest effort to relieve many of the lands from the burdens of state taxation,-an effort which brought to this court the cases of Kansas Pac. R. Co. v. Prescott, 16 Wall. 603, and Union Pac. R. Co. v. McShane, 22 Wall. 444. This litigation was carried on, on the part of the railroad companies, under the superintendence and direction of Hon. John P. Usher, who was secretary of the interior at the time of the passage of these land-grant acts,-than whom, perhaps, no one was more familiar with the land laws of the United States; and during all that litigation there was not even a suggestion that the absolute transfer of the title at the time of the definite location was, as to any particular tract, delayed by the question, thereafter to be determined, as to whether the lands were mineral or not.

Turning to legislation other than that respecting railroad land grants, we find by section 2258 of the Revised Statutes that preemptions are not allowed of 'lands on which are situated any known salines or mines.' In section 2302, in reference to homesteads, it is enacted: 'Nor shall any mineral lands be liable to entry and settlement under its provisions.' Section 2392, in reference to town sites, reads: 'No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar, or copper; or to any valid mining claim or possession held under existing laws.' In one of these three clauses the word 'known' is used, but not in the others. Is thereby any difference intended as to what shall be excepted from the scope of the authority to acquire lands? That in reference to town sites, as heretofore decided in Davis' Adm'r v. Weibbold, 139 U.S. 507, 11 Sup. Ct. 628, includes only known mines.

I deem it unnecessary to pursue this discussion further. Many other considerations of equal significance might be adduced. It is enough to say, in conclusion, that the uniform and settled rule of decision, heretofore, has been that identification of the particular tracts which pass under a grant was complete at the time of the definite location of the line of the road. Congress, with a knowledge of that frequent ruling, has never, by any act, directed a change. It is to be presumed that the legislation of the various states has been cast upon that, as the law of the land. To now overthrow that, and establish a new rule, not merely unsettles the question of title to the lands within this vast area, but it may produce complications which we do not now perceive, in the rights of individuals and counties, and even of the states, along the line of this road. If ever there was a case in which the rule stare decisis should prevail, this is one.

I therefore dissent from the opinion and judgment in this case, and am authorized to say that Mr. Justice GRAY and Mr. Justice SHIRAS concur in this dissent.