CHAPTER VII. STATE GRANTS FOR EDUCATIONAL AND OTHER PURPOSES. ARTICLE A. Educational Grants. § 217. Introductory-Early policy to foster education. 218. General observations-Different kinds of grants-Educational grants reserving mines and minerals. 219. Reservations expressed or implied - Enumeration of reservations in enabling act. § 217. Introductory - Early policy to foster education.- Beginning very early in its history, the government announced a policy in the ordinance of 1785, which was confirmed in the erection of a portion of the Northwestern Territory into the state of Ohio, of setting aside at least one section in each township for the benefit of education. At first section sixteen alone was set aside and dedicated to this use. Later, and indeed with reference to nearly all the states, sections sixteen and thirty-six were so set aside.1 In some of the later legislation, additional land, in some cases specific sections, and in others specific quantities of land, were so set aside and appropriated for the benefit of education, or, as remarked by the court, quoting from the law, in order that "schools and the means of education should be forever encouraged." Pursuing this policy, additional educational grants have from time to time been made, besides which other grants to the states upon their creation have 2 1 Ord. 1785; Cooper v. Roberts, 18 How. 173, 15 L. ed. 338. 2 New Mexico and Utah, Act of Sept. 9, 1850. See 9 Stat. at L., p. 446. See also post, art. B, this chapter. Enabling Act of the State of Utah, 28 Stat. at L. 107; 2 Supp. R. S. U. S. 197, 3 678. See post, art. B, SS 221, 222, this chapter. 4 Cooper v. Roberts, supra. been made for various purposes. In some of these grants there was an express reservation of mineral lands; but where the reservation was not express, much contrariety of opinion has resulted as to what general policy was to be applied, resulting, as a general rule, in the most reasonable conclusion, namely, that congress intended that the general controlling policy of the time should apply, and according as it resulted in a reservation from the state, flowing from the policy now in force, of granting mineral lands in one way only, or the former policy of leasing lands, or not parting with title at all, so has it been held that those lands containing minerals were withheld from grants to the state. For example, when the government, pursuant to statute, leased its lands containing minerals, it was held that the grant of the school sections carried with them the mineral; 2 while later decisions, under a different policy, declare the now prevailing and settled doctrine, and one in consonance with the present policy of the law, to be that of withholdholding mineral lands from the operation of these grants.3 In this inquiry we are concerned with three propositions: First. Educational grants in all their different features and kinds, and of the different acts of congress creating the same, together with the decisions thereunder, and the conclusions to be deduced therefrom, as to whether the minerals were granted or reserved. Second. The various other state grants for different state purposes, or by reason of indemnity or in lieu of educational grants of specific sections, which are held by the depart 1R. S. U. S., §§ 2319-2326; Barden v. Northern Pac. R. Co., 154 U. S. 288. 2 Cooper v. Roberts, supra. Act concerning boundaries of the state of Nevada, 13 Stat. at L. 43; Act concerning certain land granted to the state of Nevada, approved July 4, 1866, 14 Stat. at L. 85; Enabling Act of Colorado, March 3, 1875, 18 Stat. at L. 474; Townsite of Silver Cliff v. State of Colorado, Copp's Min. Lands, 261, 262; Sherman v. Buick, 93 U. S. 209; Broder v. Natoma W. & M. Co., 96 U. S. 165; Giovanni Le Franchi, 3 L. D. 229; Perkins v. C. P. R. R. Co., 1 L. D. 256. See also Stanley v. Mineral Union (Nev.), 63 Pac. Rep. 59. ment to mean grants of the same number of sections not in place;" that is to say, that they were grants of the same number of sections, but not in the same place as originally granted, and the effect of the decisions upon them. Third. Express renunciations of mineral lands by states and the effect of such renunciation upon the rights of the respective grantees. We will consider these matters in their order. $218. General observations-Different kinds of grantsEducational grants reserving mines and minerals.- As indicated in the last section, the earlier grants for educational purposes set apart section sixteen only, and by later grants sixteen and thirty-six were both set aside, and, as indicated in the preceding section, this rule was adhered to in the creation of all the territories, commencing with Utah and New Mexico. A grant was also made of two townships in each of the public-land states for university purposes, besides which there was an additional grant commonly called the agricultural college grant, which was a grant of thirty thousand acres in each public-land state for each senator and representative accredited to such state under the apportionment of 1860; and in the states that had no. public lands, by this act there was authorized to be issued what was called agricultural college scrip, which might be purchased by pre-emption claimants, and used in lieu of money in payment for any lands which might be taken under the provisions of the act in any public-land state.3 In . some of the states, however, specific additional educational grants were made. By such as these California acquired one hundred and fifty thousand acres under the act entitled "An act donating public lands to the several states and territories which may provide colleges for the benefit of agri3 Act of July 2, 1862, 12 Stat. at L 503. 1 Re State of Colorado, 6 L. D. 412. 2 Act of Feb. 21, 1845, Utah, 10 Stat. at L., p. 611; New Mexico, id., p. 309. 4 Public Domain, p. 229. 5 Act of July 1, 1870, R. S. U. S., § 2278. cultural and mechanic arts." By this grant minerals and mineral lands were expressly excluded. In addition to this grant California acquired seventy-two sections for the benefit of seminary purposes.2 Minerals were also excluded. from this grant. In Utah there was a specific grant of sections two and thirty-two in each township, in addition to the two sections previously authorized,' besides which there was an additional grant of one hundred and ten thousand acres, including all saline lands, for the use of the university and two hundred thousand acres for the use of the agricultural college. None of these grants expressly excluded mineral lands except the agricultural college grant and the grants to California, but they generally applied to unappropriated, unoccupied public lands, from which the deduction was easily made that mineral lands were excluded, and the department, by a uniform line of decisions, adopted this construction. There were other grants to the various western states in their enabling acts and otherwise, but we have enumerated enough for the purpose of this work, which is merely to give the reasons for the decisions on the subject of mining law, the foregoing being cited more as examples than as attempting to reproduce an entire list of the grants. § 219. Reservations expressed or implied-Enumeration of reservations in enabling acts.- We have already adverted to the effect of the general policy of the government to dispose of mineral lands only in one way, and to 1 Act of July 2, 1862, 12 Stat. at L. 503. 210 Stat. at L. 244. Enabling Act of Utah, July 16, 1894, 28 Stat. at L. 107; 2 Supp. R. S. U. S., p. 197, § 6. 4 Id., § 8. Mineral Lands, 341, citing Hogden v. California, id. 342; Re Le Franchi, 3 L. D. 229; Keystone Lode v. Nevada, 15 L. D. 259; California v. Poley & Thomas, Copp's Mineral Lands, 212. See also Circular of Nov. 27, 1896, 23 L. D. 459; 'Ivanhoe M. Co. v. Keystone Con. Re State of Colorado, 6 L. D. 412; M. Co.. 102 U. S. 167. * Commissioner Williamson to Denver office, March 30, 1877, Copp's Townsite of Silver Cliff v. Colorado, reserve them in all cases where their express disposition is not authorized, and to reserve them in all cases where grants of lands are made in aid of any quasi-public function. In some of the grants, however, the statutes are entirely silent upon the subject. For example, New Mexico, Utah, Arizona, Colorado, Washington, Idaho, Nevada,' Dakota and Montana; that is to say, in the inceptive grant made upon the creation of the territory. 3 In the enabling acts, however, of many of the states above mentioned, notably Colorado,1o North Dakota, South Dakota, Montana and Washington," Wyoming 12 and Idaho,13 the express provision was made that "all mineral lands shall be excepted from the operation and grants of this act," and as if to entrench the settled policy, congress had, as indicated in the previous section, inserted a provision which was never repealed reading as follows: "But nothing herein contained shall be construed as granting the title in fee to any minerals held by possessory titles in the mining states and territories." 14 Oregon has a similar provision.15 The general policy is announced by the statute itself in the following words: "In all cases lands valuable for minerals shall be reserved from sale except as otherwise directed by law." 16 1 Act of September 9, 1850, 9 Stat. at L. 446-452. Act of September 9, 1850, 10 Stat. at L. 611. 3 Act of February 24, 1863, 12 Stat. at L. 665. 4 Act of February 28, 1861, 12 Stat. at L. 172. 5 Act of March 2, 1853, 10 Stat. at L. 172-179. 6 Act of March 3, 1863, 12 Stat. at L. 808-814. 7 Act of March 2, 1861, 12 Stat. at L. 209-214. 8 Act of March 2, 1861, 12 Stat. at L. 239-244. 9 Act of March 26, 1864, 13 Stat. at L. 85-91. 10 Act of March 3, 1875, 18 Stat. at L. 474-476. 11 Act of February 22, 1889, 25 Stat. at L. 676-681. 12 Act of July 10, 1890, 26 Stat. at L. 222-224. 13 Act of July 3, 1890, 26 Stat. at L. 215-217. 14 Act of May 6, 1866, 13 Stat. at L. 43. 15 Act of September 27, 1850, 9 Stat. at L. 500. 16 R. S. U. S., § 2318. 8 |