cation made after the promulgation of the proclamation, but before it takes effect, is void,' and, in any case, the character of the land must be established as mineral.2 $179. Location on Indian reservation gives imperfect or no right, according to situation, but possession at opening may be continued and location made-Evidence as to work admissible. Where one innocently takes possession of mineral land, makes a discovery, and does all the acts necessary to accomplish a valid location, and remains in actual possession of it, and afterwards finds that it is on an Indian reservation, he may, if he is in possession at the time of the opening of the reservation and extinguishment of the Indian title, remain in possession, adopt his previous acts as of that date, and date his location from that time, and the location will be good notwithstanding the tortious acts on the Indian reservation; this, in the absence of any adverse claim, and conditioned upon absolute innocence and good faith on the part of the locator; the theory being that the tort is waived and the location dates from the extinguishment of the Indian title. It was further held competent to show that the rules of the district embracing the ground, even though improperly embracing it, have been complied with, and the nature and character of the development work done on the claim prior to the opening, not as creating any absolute right to the property, but as showing the existence and condition of the same when their possession became lawful under the new agreement. But the subsequent rights of such locator of course are dependent upon an observance of the law as in all other cases, which the locator may show as entitling him to the land.1 1 McFadden v. Mountain View M. & M. Co., 97 Fed. Rep. 670; Colville Ind. Res., opened by Act of July 1, 1898 (2d Sess. 55th Cong., p. 593), for location mining claims. 3 Noonan v. Caledonian G. M. Co., 121 U. S. 393, 30 L. ed. 1061, affirming s. c., 14 N. W. Rep. 426, 3 Dak. 189. 4 Id.; Caledonia M. Co. v. Noonan, 2 Durant v. Corbin, 94 Fed. Rep. 3 Dak. 189, 14 N. W. Rep. 426. 384. CHAPTER II. OF MEXICAN GRANTS, THEIR KINDS, STATUS AND VALID. ITY - THEIR EFFECT AS RESERVATIONS. § 181. Introductory — General nature and effect of grant. 182. The progression and change in the law. 183. Minerals on Mexican grant reserved by congress - Special act Opinion by the court. 184. Time for asserting right under Mexican grant — Waiver of right— The old rule under the California act. 185. Summary. § 181. Introductory-General nature and effect of grant. The manner in which Mexico has disposed of her mineral lands, and now disposes of them, has been sufficiently demonstrated for the purposes of this work. With the general doctrine of Mexican grants in all its phases, the principles controlling them, and the rights and estates acquired thereby, as well as the different kinds of grants, this work, generally speaking, has nothing to do; but simply in respect of those sub judice, that is to say, under claim or in process of adjustment; because it is only in those grants, as a general rule, and which for the time being are reserved, that there can be any hope of mineral lands being restored to the public domain. Within those grants land may be restored to the public domain, either because the grant fails of establishment, or the grant is for a smaller area within a tract of larger given dimensions, or because one or more sides is imperfectly described and not ascertained. It is sufficient, in such cases as those mentioned in the two last circumstances, that enough remains from which the grant may be satisfied. Moreover, it is sufficient for the purpose of this 1 Newhall v. Sanger, 92 U. S. 761, 11 Opp. Atty. Gen., p. 493; 13 id., p. 388; Frisby v. Whitney, 9 Wall. 187; Van Reynegan v. Bolton, 95 U. S. 33; United States v. McLaughlin, 127 U. S. 428. See also Corn work to say, in a general way, that the mode of disposing of agricultural lands, whether for colonization or for ranch purposes, was altogether different from the mode of disposing of mineral lands.' So important was this, and it is still important, that if minerals were known at the time of the initiation of the grant, that is to say, at the time it was applied for, and the grant was sought for any other purpose, it would be such fraud and concealment as would defeat the grant.2 182. The progression and change in the law. The last case was decided under the law of congress as it stood at that time, passed in 1854, creating the office of surveyorgeneral of New Mexico, Kansas and Nebraska, and by the terms of which, while certain grants were made to residents in the territory of New Mexico, mineral lands were expressly reserved; and it was because of this, no doubt, and because the grant itself was for agricultural lands, that the court held that the title to mineral lands did not pass. This, of course, was special under that act; but in California, prior to the passage of the special act of congress, which controlled and was special in that state alone, it was held that the discovery of gold or silver on a Mexican grant did not destroy the title to the surface in the individual holding the grant, and this was confirmed by the supreme court of the United States. This, then, was the condition of the law prior to wall v. Culver, 16 Cal. 429; Riley v. Heisch, 18 Cal. 198; Mahoney v. Vanwinkle, 21 Cal. 552. 1 United States v. Castelero, 2 Black, 371; United States v. San Pedro & Canon del Agua Co., 4 N. M. 225, 17 Pac. Rep. 337; affirmed, 146 U. S. 120. Kansas and Nebraska, to grant donations to actual settlers therein, and for other purposes." 10 Stat. at L. 308. 4 United States v. San Pedro & Canon del Agua Co., 4 N. M. 225, 17 Pac. Rep. 337, 416, 417. 5 Fremont v. United States, 17 2 United States v. San Pedro & How. 442; s. C., 15 L. ed. 241; Fre Canon del Agua Co., supra. Act of July 22, 1854, entitled "An act to establish the offices of surveyor-general of New Mexico, mont v. Flower, 17 Cal. 199; Moore v. Smaw, 17 Cal. 199; Fremont v. Seals, 18 Cal. 434; Ah Hee v. Crippen, 19 Cal. 491. the § 183. Minerals on Mexican grant reserved by congress Special act Opinion by the court. After the Canon del Agua case, and as if to confirm, by the legisla tive voice, what the court in that case, by traveling the full length authorized by the principles of equity, accomplished in its opinion, an act was passed creating a special tribunal to adjust those claims within the states and territories mentioned in the last section, and to mark out the law and the rules which were to guide that court in such adjudications. By the thirteenth section, and in the third subdivision thereof, it was provided: "No allowance or confirmation of any claim shall confer any right or title to any gold, silver or quicksilver mines, or minerals of the same, unless the grant claimed affected the donation or sale of such mines or minerals to the grantee, or unless such grantee has become otherwise entitled thereto in law or in equity; but all such mines and minerals shall remain the property of the United States, with the right of working the same, which fact shall be stated in all patents issued under this act. But no such mine shall be worked on any property confirmed under this act without the consent of the owner of such property, until specially authorized thereto by an act of congress hereafter passed." 1 The supreme court of New Mexico, in reviewing both these acts of congress, in a case where a mining claim had been made upon a claimed Mexican grant, then sub judice, uses this language: "It will thus be seen from these acts of 1 An act to establish a court of private land claims, and to provide for the settlement of private land claims in certain states and terri tories; approved March 3, 1891 (26 ་་ congress that it has first established a reservation of the lands embraced within the boundaries of a claimed grant upon the report of the surveyor-general, and that thereafter it has elected to repeal the reservation, and the section of the act authorizing it, and to provide for compensating any grant claimant for any lands which the government may have elected to sell and dispose of within the boundaries of his grant. It seems clear to us, therefore, that there is no statutory reservation of any of the lands embraced within the boundaries of a claimed grant in New Mexico. We do not agree to the construction put upon the treaty of Guadalupe-Hidalgo by the land department of the government, nor do we think that construction is borne out by the supreme court of the United States in the cases cited above. Neither any actual reservation of these lands by the land department, nor any statutory authority for making such. reservation, has been called to our attention, and we assume that none exist. There being no reservation of these lands within claimed grants in New Mexico by treaty, law, or authorized act of the executive department of the government, we conclude that they are not reserved lands, and are 'lands belonging to the United States' within the meaning of section 2319 of the Revised Statutes of the United States." In this case the land claimed was outside the boundary as adjudicated, and an appeal had been taken and was undetermined. The court upheld the location of the mineral claimant, and while the reservation was a sweeping one, it would seem that the conclusion of the court is correct in view of the facts of the case and authorities cited by it. Moreover, we must remember that this reservation reserved all miner Lockhart v. Wills (N. M. 1898), 54 Pac. Rep. 336, 338, 339. See also Wolsey v. Chapman, 101 U. S. 755. 2 Newhall v. Sanger, 92 U. S. 761; Van Reynagan v. Bolton, 95 U. S. 33; Hosmer v. Wallace, 97 U. S. 575; Trenouth v. San Francisco, 100 U. S. 251; Aurre Coechea v. Bangs, 114 U. S. 381; Doolan v. Carr, 125 U. S. 618; United States v. McLaughlin. 127 U. S. 428; Carr v. Quigley, 149 U. S. 652. |