A. STATE GRANT-NEVADA. 1. PURPOSE OF ACT. 2. APPLICATION OF ACT. 3. LIEU LANDS NOT TO INCLUDE MINERAL LANDS. 4. SELECTION BY STATE-EFFECT AS TO MINERAL CHARACTER. 5. PATENTS NOT ISSUED TO STATE. 1. PURPOSE OF ACT. This statute was enacted on the condition that the State of Nevada accepted from the United States the 2,000,000 acres mentioned in lieu of the sixteenth and thirtysixth sections, which fact is shown in the preamble of the act. Garrard v. Silver Peak Mines, 82 Fed. 578. See 21 Stat. 287, and Stat. of Nev., Mar. 8, 1879. See 13 Stat. 32, p. 1270. The 2,000,000-acre grant by the United States to Nevada was not intended to include any mineral lands, as it is the policy of the Government to exclude such lands from its grants. Garrard v. Silver Peak Mines, 82 Fed. 578, p. 587. Heydenfeldt v. Daney, etc., Min. Co., 10 Nev. 290. 2. APPLICATION OF ACT. This act in express terms applies only to unappropriated, nonmineral public lands. Garrard v. Silver Peak Mines, 94 Fed. 983, p. 989. 3. LIEU LANDS NOT TO INCLUDE MINERAL LANDS. The lieu land granted to Nevada by this act did not include mineral lands. Keystone Lode & Mill Site v. Nevada, 15 L. D. 259, p. 261. Mineral lands already appropriated were not within the terms of this act and the selection and certification were without authority and passed no title. Garrard v. Silver Peak Mines, 82 Fed. 578. Manser Lode Claim, In re, 27 L. D. 326, p. 328. The State of Nevada by statute (St. 1887, p. 102), recognizes the fact that the several grants to it by the United States reserved all mineral lands, and all sales made by the State were made subject to such reservation. Garrard v. Silver Peak Mines, 94 Fed. 983, p. 989. 4. SELECTION BY STATE- -EFFECT AS TO MINERAL CHARACTER. The selection by the State and the approval by the authorized officers of the Government is a determination of the nonmineral character of the lands; but this determination is not conclusive in any subsequent controversy between the State of Nevada and its grantee of any of such selected lands. Stanley v. Mineral Union, 26 Nev. 55, pp. 62, 64. While a decision of a Federal court is not binding on the question of the mineral character of land, and the selection and certification of such land of no effect under this act, though it is evidence of a high order, both as to the character and condition of the land involved and the validity of the applicant's claim thereto, it will be assumed that the judgment of the court is a final judgment between the parties. Manser Lode Claim, In re, 27 L. D. 326, p. 328. 5. PATENTS NOT ISSUED TO STATE. This act does not provide for the issuance of a patent to the State for the lands thereby granted. Garrard v. Silver Peak Mines, 94 U. S. 983, p. 984. 25 STAT. 676, 1 SUPP. R. S. 645, FEBRUARY 22, 1889. GRANT TO MONTANA, NORTH DAKOTA, SOUTH DAKOTA, AND WASHINGTON-MINERALS EXCEPTED. AN ACT To provide for the division of Dakota into two States and to enable the people of North Dakota, South Dakota, Montana, and Washington to form constitutions and State governments and to be admitted into the Union on an equal footing with the original States, and to make donations of public lands to such States. Be it enacted, etc., That the inhabitants of all that part of the area of the United States now constituting the Territories of Dakota, Montana, and Washington, as at present described, may become the States of North Dakota, South Dakota, Montana, and Washington, respectively, as hereinafter provided. * * * SEC. 10. That upon the admission of each of said States into the Union sections numbered 16 and 36 in every township of said proposed States, and where such sections, or any parts thereof, have been sold or otherwise disposed of by or under the authority of any act of Congress, other lands equivalent thereto, in legal subdivisions of not less than one-quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said States for the support of common schools, such indemnity lands to be selected within said States in such manner as the legislature may provide, with the approval of the Secretary of the Interior: Provided, That the sixteenth and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be subject to the grants nor to the indemnity provisions of this act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this act until the reservation shall have been extinguished and such lands be restored to, and become a part of, the public domain. SEC. 11. That all lands herein granted for educational purposes shall be disposed of only at public sale, and at a price not less than $10 per acre, the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools. But said lands may, under such regulations as the legislatures shall prescribe, be leased for periods of not more than five years, in quantities not exceeding one section to any one person or company; and such land shall not be subject to preemption, homestead entry, or any other entry under the land laws of the United States, whether surveyed or unsurveyed, but shall be reserved for school purposes only. SEC. 18. That all mineral lands shall be exempted from the grants made by this act. But if sections 16 and 36, or any subdivision or portion of any smallest subdivision thereof in any township shall be found by the Department of the Interior to be mineral lands, said States are hereby authorized and empowered to select, in legal subdivisions, an equal quantity of other unappropriated lands in said States, in lieu thereof, for the use and benefit of the common schools of said States. SEC. 19. That all lands granted in quantity or as indemnity by this act shall be selected, under the direction of the Secretary of the Interior, from the surveyed, unreserved, and unappropriated public lands of the United States within the limits of the respective States entitled thereto. And there shall be deducted from the number of acres of land donated by this act for specific objects to said States the number of acres in each heretofore donated by Congress to said Territories for similar objects. * * A. STATE GRANT-MONTANA, NORTH DAKOTA, SOUTH DAKOTA, AND WASHINGTON. 1. MINERAL LANDS EXCEPTED-LIEU LANDS. 2. SCHOOL LANDS-TIME GRANT TOOK EFFECT. 3. SCHOOL SECTIONS MINERAL-SELECTION OF LIEU LANDS. 4. MINERAL LANDS. a. DETERMINATION. b. STONE LANDS. c. COAL. 5. STATE SELECTIONS-MINERAL AFFIDAVIT. 1. MINERAL LANDS EXCEPTED LIEU LANDS. By the eighteenth section of this act if land was known to be mineral at the date of the admission of the State it was expressly excepted from the grant, and the State was authorized to select an equal quantity in lieu thereof for school purposes. Washington v. McBride, 18 L. D. 199, p. 201. See Utah v. Allen, 27 L. D. 53, p. 55. The express provision of section 18 of this act exempting all mineral lands from the grants made by the act clearly manifests that the last clause in section 11 was not intended to include mineral lands or entries thereof under the mining laws, and the excepting provisions of section 10 indicating the time at which adverse rights must have intervened have no application to mineral appropriation. South Dakota v. Delicate, 34 L. D. 717, p. 720. Mineral lands were excepted from this grant to the State of Washington and a locator of a mining claim is entitled to purchase it under his mineral application. Washington v. McBride, 25 L. D. 167, p. 180. Arnold, In re, 24 L. D. 486. Under this act land known to be mineral in character prior to the Secretary's approval of the list of State selections and prior to certification is exempt from the operation of the grant, and the Land Department may order a hearing to determine whether the land was of the character contemplated by the act and was not intended to be granted thereby. Arnold, In re, 24 L. D. 486, p. 488. The fact that land was covered by a placer location, or was embraced in a pending application for a placer patent, did not operate to except it from this grant if it was in fact nonmineral land. Bourquin, In re, 27 L. D. 289, p. 290. 2. SCHOOL LANDS-TIME GRANT TOOK EFFECT. The grant of sections 16 and 36 under this act took effect on the admission of South Dakota into the Union as to lands at that date identified by the Government surveys; but the right of the State did not attach to lands not surveyed, and if at the time of survey they are known to be mineral in character they are expressly excepted from the grant. South Dakota v, Trinity Gold Min. Co., 34 L. D. 485, p. 486. Law v. Utah, In re, 29 L. D. 623. See Cooper v. Roberts, 59 U. S. (18 How.) 173, p. 179. Heydenfeldt v. Daney Gold, etc., Min. Co., 93 U. S. 634. Utah, In re, 29 L. D. 418, p. 419. Utah, In re, 32 L. D. 117. South Dakota v. Delicate, 34 L. D. 717, p. 722. South Dakota v. Walsh, 34 L. D. 723. Lands embraced in sections 16 and 36 and at that time known to be mineral in character were not intended to pass under this grant, as the exempting provisions of section 18 embrace all lands which shall be found to be mineral lands, and it does not operate to defeat the grant in any part by conditions subsequently arising by thus excluding mineral lands, if known to be such, from the grant, nor can the grant attach to specific sections or parts of sections comprising lands of known mineral character, and any lands found to be mineral, prior to the ascertainment by approved surveys of sections 16 and 36, at which time the grant would otherwise become operative and the legal title pass, are within the exemption. South Dakota v. Delicate, 34 L. D. 717, p. 721. See Borden v. Northern Pac. R. Co., 154 U. S. 288. The provisions of the grant of school lands to Utah (28 Stat. 107) are identical in all essential respects with those of this grant to South Dakota, and as to the former grant the department has uniformly held that it took effect upon the admission of the State into the Union as to lands at that date identified by the Government survey, and if at the time of such identification they are of known mineral character they are excluded from the grant. South Dakota v. Trinity Gold Min. Co., 34 L. D. 485, p. 486. See Utah v. Allen, 27 L. D. 53. Utah, In re, 29 L. D. 418, p. 419. 3. SCHOOL SECTIONS MINERAL- -SELECTION OF LIEU LANDS. By section 18 mineral lands are expressly exempted from the grants made by the act, and provision is made for indemnity to each of the States named, for such sections 16 and 36 or any subdivisions thereof as may be found to be mineral lands and indicating that future disclosures were contemplated. Montana v. Silver Star Min. Co., 23 L. D. 313, p. 315. Bourquin, In re, 27 L. D. 289. South Dakota v. Delicate, 34 L. D. 717, p. 720. Selections of lands for school purposes in lieu of land patented as mineral operates to reserve such lands as against a subsequent homestead application. McKenzie v. Washington, 14 L. D. 282. 56974°-Bull. 94, pt 2—15—30 4. MINERAL LANDS. a. DETERMINATION. The mineral character of a tract of land can not be wholly determined by reference to the surrounding lands, yet the mineral quality of such surrounding lands is in cases otherwise doubtful a proper subject for consideration, and the fact that the particular section of country has long been settled and occupied by a large population, but none of the land has ever been entered under any of the mining laws, and no kind of mining has been done, will aid in determining the mineral character of land in dispute. Washington v. McBride, 25 L. D. 167, p. 181. Upon the extension of the public survey sections 16 and 36 presumptively pass to South Dakota under this grant, but where the mineral character of a conflicting mining claim is challenged, then the usual formal proofs under mineral patent proceedings will not be sufficient, but in such case the mineral character of the claim involved must be established by substantive proof, and the State is not bound to take the initiative at a hearing ordered for the purpose. South Dakota v. Walsh, 34 L. D. 723, p. 724. Distinguishing Mahoganey No. 2 Lode Claim, In re, 33 L. D. 37. When selections are made in nonmineral belts or in proximity to lands classed or returned as mineral, the party making the selection should give notice by posting and publication of such selections, describing the lands so selected. Montana, In re, 18 L. D. 477. b. STONE LANDS. Lands chiefly valuable for ordinary building stone are not mineral in character in the sense in which the term mineral land is used when applied to grants. South Dakota v. Vermont Stone Co., 16 L. D. 263, p. 264. See Clark v. Ervin, 16 L. D. 122. Minerals or stone discovered in sections 16 or 36 after the public survey and the location by the State for school purposes are not subject to location under the United States mining laws. Wheeler v. Smith, 5 Wash. 704, p. 711. C. COAL. Under this section lands known to contain coal prior to the date of the act are excepted from the operation of the school grant. Montana v. Buley, 23 L. D. 116, p. 117. This act granted to the State of South Dakota sections 16 and 36, but expressly excepted mineral lands from the grant, and lands shown to be valuable for coal being thus reserved were subject to coal entry. McGillicuddy v. Tompkins, 14 L. D. 633, p. 634. 5. STATE SELECTIONS-MINERAL AFFIDAVIT. The mineral affidavit required by the regulations to be filed in connection with State selections must be based upon examinations made within three months preceding the date of the filing of the list. South Dakota, In re, 37 L. D. 458, p. 459. |