Page:Federal Reporter, 1st Series, Volume 10.djvu/799

 •UNITED STATES V. MULLAN, T87 �Company for damages resulting f rom working the coal mine and taking oufc coal since the issue to him of a certiflcate of purchase, npon which assignment Avery, net long afterwards, sued the said company, claiming $1,300,000 damages for coal taken out of the land. Avery denies that he knew that the Black Diamond Coal Mine was on the land at the time he acquired his interest, but admits that Mullan told him that it was in the neighborhood of coal, and that there might be coal on it. Mullan also atates that he never saw the land before his purchase from the state. �The selection was made by the state, as is claimed, in pursuance of the act of congress of March 3, 1853, extending the pre-etnption laws of 1841 over the public lands in California. A state patent, in pursuance of the selec- tion, purchase, and listing, as hereinbefore stated, was issued to defendant Avery on April 6, 1871. �The first question that arises is whether the land in question was open to selection by the state. The pre-emption act of 1841 provides that "no lands on which are situated any known salines, or mines, shall be liable to entry under and by virtue of the provisions of this act." 5 St. p. 456, § 10. �The act of March 3, 1853, extends the pre-emption laws of 1841 over the public lands in 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 purpose of public schools in each township." "Excepting, also, * * * the minerai lands," with other prescribed exceptions, and "with all the exceptions, conditions, and limitations therein, except as herein otherwise provlded." 10 St. p. �246, § 6. It is further provided in section 7 that when a settlement has been made on sections 16 and 36, before the lands shall be sur- veyed, reserved, etc., "other lands shall be selected by the proper authorities of the state in lieu thereof." "Nor shall any person obtain the benefit of this act by a settlement or location on minerai lands." �In Mining Co. v. Consolidated Mining Go. the supreme court held "that the land in controversy being minerai lands, and well known to he sa when the surveys of it ivere made, did not pass to the state under the school-section grant. It seems equally clear to us that the land is excepted from the grant by the terms of the seventh section of the act of 1853." 102 U. S. 175. �If sections 16 and 36 do not pass by the terms of the statute, there certainly is no good reason for permitting the same kind of land to be selected under section 7, in lieu of sections 16 and 36. 10 St. p. �247, § 7. In the act of June 1, 1864, it is provided "that when any tracts embracing coal-heds or coal-fields, constituting portions of the public domain, and which, as 'mines,' are excluded from i]xQ pre-emp- ��� �