Page:Federal Reporter, 1st Series, Volume 10.djvu/802

 790 FEDRBAL BEFOATER. �There are railroad grants, it is true, ■which especially, and by express terms, provide that coal lands shall not be deemed minerai within the provisions of those acts. But this only shows that, in the opinion of congress, they would be included, if not specially in terms exclu ded. �Prom these considerations 1 am ot opinion that the land in ques- tion was not subject to selection, and that the secretary of the interior had no power to list over to the state, or the state to grant a valid patent for it. The land not only contained coal mines, but, in the language of the act of 1841, "known mines" of coal, which were being actually and notoriously worked, and had been so worked for a period of seven years at the time defendant Mullan applied for their purchase from the state, and more than 11 years when be assigned to defend- ant Avery. The state had no vested right, as is claimed by defend- ant's counsel it had, to seleet lands in lieu of sections 16 and 36, so that the right to select could not be withdrawn from any particular lands or class of lands at any time before selection actually made. The indefeasible right to any particular land can only attach at the time of selection. Ryan v. C. P. R. Co. 5 Sawy. 260, affirmed in 99 U. S. 388; Huttnn v. Frisbie, 37 Cal. 476; Frishie v. Whltney, 9 Wall. 187. If she had an indefeasible vested right before an actual selection, there could be no final disposition of the public domain, so as to secure the grantee of the government a perfect title, till all the state selections should be made. If the state had an indefeasible vested right to select from any public land, then any grantee of the government, before the state's right is satisfied, would take the title, subject to be defeated by a subsequent state selection. �Upon the only other substantial question in the case I have as little doubt, viz., that the selection, listing over to the state, and the patent issued thereon by the state, can be decreed void or annulled on a bill in chancery direetiy filed by the United States for that purpose. The numerous decisions cited to show that the examination and decision of the land department upon the facts are conclusive, are mostly, if not all of them, collateral proceedings, where it is sought to attack the acts of those officers at law, and not by direct proceedings by the gov- ernment to annul the patent. �In cases like this there is no jurisdiction or power in the officers of the land department to affeot the title of the United States. There were "known mines" on the land openly and notoriously worked. It was an obvious, public, notorious, historical fact, open to everybody's ��� �