Water and Mining Co. v. Bugbey (96 U. S. 165), the Supreme Court refers to such a certificate and apparently relies upon it to support the State's title.

That the Land Department recognizes the superior rights of a bona fide purchaser is inferable from the requirement in the regulations governing school indemnity selections, whereby the State must show that lands in sixteens and thirty-sixes specified as base for indemnity have not been sold or encumbered (39 L. D. 39; 35 L. D. 537; 32 L. D. 39).

"To a bill in equity to cancel a patent of land from the United States to a preemptor, solely on the ground that there was no actual settlement and improvement on the land, as falsely set out in affidavits in support of the preemption claim, the defense of a bona fide purchaser without notice is perfect." (Colorado Coal Co. v. United States, 123 U. S. 307.)

In United States v. California, etc., Land Co. (148 U. S. 31), a grant in aid of wagon roads within the State was drawn in question, and the certification of the Department of the Interior was assailed on the ground that the conditions of the grant had not been complied with. It appeared that upon the certificate of the governors of the State as to completion of the roads, the grant would take effect. In upholding the title of the State, the court said: 'Now, it is familiar law that when jurisdiction is delegated to any officer or tribunal, his or its determination is conclusive."

66

And quoting from United States v. Arredondo (6 Pet. 691) the court said: "The only questions which can arise between an individual claiming a right under the acts done and the public, or any person denying its validity, are, power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer; whether executive,

*

*

It was contended in that case that the certificates obtained from the governors were obtained through the fraudulent acts of the road company. The Supreme Court concluded that the road company could not avail itself of the benefit of the grants, but as to the purchasers from the road company the court said:

"The testimony shows that the purchasers knew of nothing wrong in respect to the title, or the proceedings of the road company, or any officials connected with the transfer of title. They knew that determination of the question as to the completion of the road was committed by the statute to the government of the State. They saw his adjudication upon that question, and it may well be held that they took all the acting measures which under the circumstances they could be required to take when they ascertained that the authorized official, and that official the chief executive of the State, the grantee named in the congressional act, had officially determined that the road was completed, there being nothing in any of the circumstances surrounding the parties to suggest a suspicion of wrong. Can it be that they must be adjudged derelict in diligence because they did not make a personal examination of the road, and determine for themselves whether it was in its entire length completed so as to satisfy all of the terms of the grant? If a patent from the Government be presented, surely a purchaser from the patentee is not derelict, and does not fail in such diligence and care as are required to make him a bona fide purchaser, because he relies upon the determination made by the land officers of the Government in executing the patent, and does not institute a personal inquiry into all the anterior transactions upon which the patent rested." The court concluded:

The land company, therefore, had a right to set up a special plea, and the plea which it did set up, that of a bona fide purchaser, was sufficient if true (p. 41)

In Cragin v. Powell (128 U. S. 691, 699) the Supreme Court said that where a department has once made a survey and sold lands pursuant thereto, the courts will protect bona fide purchasers against a subsequent resurvey.

And the United States Supreme Court said:

"The Government * * certainly could not insist upon a cancellation of the patents so as to affect innocent purchasers under the patentees." (United States v. Burlington, etc., R. R. Co., 98 U. S. 334, 342.)

*

*

*

*

*

*

"It is a good defense to an action to set aside a patent that the title has passed to a bona fide purchaser, for value, without notice. And, generally speaking, equity will not simply consider the question whether the title has

86958-26- -13

been fraudulently obtained from the Government, but also will protect the rights and interests of innocent parties." (United States v. Stinson, 197 U. S. 200, 205, followed in United States v. Clark, 200 U. S. 601.)

The foregoing authorities refer to instances of grants voidable for fraud; they are applicable, a fortiori, to a case wherein there is no suspicion of fraud and the defect, if any, in the grant is attributable to mistake of the commissioner.

3. NECESSITY THAT DEPARTMENT'S DECISION BE FINAL

Taking into consideration the want of any machinery provided by Congress for the determination of the mineral or nonmineral character of a school section in place, it must be apparent that validity of title to such a section must remain forever undetermined if a classification by the Department of the Interior is not to be taken as final. It is inconceivable that Congress intended to make so uncertain a grant. Public interest, as well as fair dealing between the Federal Government and the States, require that there should be some point of time when the validity of the title to a school section shall be fixed. Since the Department of the Interior is charged with the full duty of administering the land laws and grants thereunder, its determination, as a matter of public policy, should be received as final. The Supreme Court of the United States has repeatedly sustained these principles.

In Davis v. Weibbold (139 U. S. 507), Mr. Justice Field, delivering th opinion of the court, quoted with approval, at page 521, the following lan guage of Judge Sawyer in Cowell v. Lammers (10 Sawyer, 246, 257):

"There must be some point of time, when the character of the land must be finally determined, and, for the interest of all concerned, there can be no better point to determine this question than at the time of issuing the patent "which in his case is equivalent to the point of time when the department classified the land. And in the Barden case (154 U. S. 288) the Supreme Court of the United States said:

"The earnest contention of the counsel of the plaintiff arises principally, we think, from an unfounded apprehension that our interpretation will lead to uncertainty in the titles of the country. If the exception of the Government is not limited to known minerals, the title, it is said, may be defeated years after the land has passed into the hands of the grantee and improvements of great extent and value have been made upon its faith. It is conceded to be of the utmost importance to the prosperity of the country that titles to lands and to minerals in them shall be settled, and not be the subject of constant and ever recurring disputes and litigation, to the disturbance of individuals and the annoyance of the public. We do not think that any apprehension of disturbance in titles from the views we assert need arise. The law places under the supervision of the Interior Department and its subordinate officers, acting under its direction, the control of all matters affecting the disposition of public lands of the United States and the adjustment of private claims to them under the legislation of Congress. It can hear contestants and decide upon the respective merits of their claims. It can investigate and settle the contentions of all persons with respect to such claims. It can hear evidence upon and determine the character of lands to which different parties assert a right; and when the con troversy before it is fully considered and ended, it can issue to the rightfu claimant the patent provided by law, specifying that the lands are of the character for which a patent is authorized.

"It can thus determine whether the lands called for are swamp lands, timberlands, agricultural lands, or mineral lands, and so designate them in the patent which it issues. The act of Congress making the grant to the plaintiff provides for the issue of a patent to the grantee for the land claimed, and as the grant excludes mineral lands in the direction for such patent to issue, the Land Office can examine into the character of the lands and designate it in its conveyance.

"It is the established doctrine, expressed in numerous decisions of this court, that wherever Congress has provided for the disposition of any portion of the public lands of a particular character, and authorizes the officers of the Land Department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attacks."

4. UNDER THE REGULATIONS AND DECISIONS OF THE DEPARTMENT OF THE INTERIOR IN 1903, APPLICABLE TO SCHOOL SECTIONS IN PLACE, THIS SECTION WAS PLAINLY AND INDISPUTABLY NON MINERAL

The rule of the department in January, 1903, was fixed that a school section in place was to be deemed mineral or not, according to whether mineral had been discovered on it or not. The regulations permitted the State to surrender the land only upon proof of mineral discovery. The decisions were equally clear.

In the hearings before the Senate Committee on Public Lands (sec. 64 of H. R. 406) it was suggested by Senator Clark and admitted by the Government counsel (Mr. Mills) in the Southern Pacific case that this was the holding for many years (p. 264). The rule was criticized and denied in a circular issued by Secretary Hitchcock October 26, 1905, in which he said that it would not be necessary to show mineral exposed in place in order to classify land as mineral (34 L. D. 194). That such had been the rule, particularly in classifying sections 16 and 36 in place, amply appears.

Thus in the regulations of the department May 27, 1891 (24 L. D. 548), and March 6, 1903 (32 L. D. 39), it is said in rule 1 that the presumption is that title was passed to the State upon survey.

66

Rule 2. The State will not be permitted to make selection in lieu of land within a school section alleged to be mineral in character and for that reason excepted from its grant, whether returned by the surveyor general as mineral or otherwise, in the absence of satisfactory proof that the base land was known to be chiefly valuable for mineral at the date when the State's right thereto would have attached, if at all. The proof must show the kind of mineral discovered upon the land and the extent thereof, when and by whom the discoveries were made, etc. If in any case the proof does not clearly show that the base land was known to contain valuable mineral deposits, and to be chiefly valuable on account of such deposits, at the date the State's right would have attached thereto, a selection in lieu thereof will not be permitted." The rulings of the department prior to 1905 are exemplified in the following decisions: Dughi v. Harkins (2 L. D. 721), Commissioners v. Alexander (5 L. D. 126), Abraham L. Miner (9 L. D. 408), Warren v. State of Colorado (14 L. D. 684), Quoting Davis v. Newbold (139 U. S. 507), Doffebach v. Hawke (115 U. S. 392), and many others.

To establish the mineral character of a school section there had to be the equivalent of discovery. (State of California, 33 L. D. 356-358.)

The department, in an often-cited and leading decision, said: "It has been repeatedly held by this department that the proof of the mineral character of land must be specific and based upon the actual production of mineral; that it is not enough to show that neighboring or adjoining lands are mineral in character, and that the lands in controversy may hereafter develop minerals to such an extent as to show its mineral character, but it must be shown as a present fact that the lands are mineral, and this must appear from actual production of mineral and not from a theory that the lands may here. after produce it." (Hooper v. Ferguson, 2 L. D. 712; Dughi v. Harkins, ibid. 721; Roberts v. Jepson, 4 L. D. 60; Cleghorn v. Bird, ibid. 478; Lientz et al. v, Victor et al., 17 Cal. 272; Alford v. Barnum et al., 45 Cal. 482; Commissioners v. Alexander, 5 L. D. 126, 127.)

And the following was quoted by the Supreme Court of the United States with approval:

"The mineral claimant must show, not that neighboring or adjoining lands are mineral in character, or that that in dispute may hereafter by possibility develop minerals in such quantity as will establish its mineral rather than its agricultural character, but that, as a present fact, it is mineral in character; and this must appear from actual production of mineral, and not from any theory that it may produce it; nor is it sufficient that the mineral claimant shows that the land is of little agricultural value. He must show affirmatively, in order to establish his claim, that the mineral value of the land is greater than its agricultural value." (Dughi v. Harkins, 2 L. D. 721, quoted and approved in; Davis v. Weibbold, 139 U. S. 508, 522.)

"The State's title vests, if at all, at the date of the 'completion of the survey (Cooper v. Roberts, 18 How. 173; Virginia Lode, 7 L. D. 459); and, if the land, although in reality mineral, was not then known to be mineral, the subsequent discovery of its mineral character would not devest the title which had already passed." (State of California v. Poley and Thomas, 4 C. L. O. 18;

Virginia Lode, 7 L. D. 459; J. Dartt, 5 C. L. C. 178; Town Site of Silver Cliff v. Colorado, 6 C. L. O. 152; State of Colorado, 6 L. D. 412; Mining Co. v. Consolidated Mining Co., 102 U. S. 175.)

In the case of the State of California v. Poley and Thomas, supra, this question is considered at some length by Secretary Schurz, and it is held : First, that under the grant by the act of March 3, 1853 (10 Stat. 244), of sections 16 and 36 to California for school purposes, the title to said sections vests in the State upon survey thereof, if their mineral character was unknown at that date; and, second, that having so vested, it is not subject to be devested by the subsequent discovery of the mineral character of the land. As to said first proposition Secretary Schurz says, "In compliance with the established doctrine of the courts, it must, I think, be held, that the title vested in the State at the date of survey, when the land was not known to be mineral, or was not treated as such by the Government." (Abraham L. Miner, 9 L. L

408.)

"The fact that this land lies in what is known as the Colorado coal fields, which includes about 2,500 square miles, in which there is probably not more than 100 square miles of land valuable for coal, and the further fact that there are valuable coal deposits in the vicinity of these lands, do not prove these lands to be coal lands within the meaning of the law. * * * The grant to Colorado of the sixteenth and thirty-sixth sections includes all kinds of land except mineral lands, so that upon principle all lands embraced in said sections except mineral lands would pass to the State by the grant, the same as agricultural lands pass by sale under the preemption law. No patent or certificate was necessary to pass them to the State if they were not mineral in character."

In Davis v. Weibbold (139 U. S. 507), it is said (p. 519):

66

"The exceptions of mineral lands from preemption and settlement and from grants to States for universities and schools, for the construction of public buildings, and in aid of railroads and other works of internal improvement are not held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure for its extraction, and known to be so at the date of the grant. Applying these principles to the case at bar, it is clear that the evidence fails to prove the mineral character of the land in question at or before the 1st day of August, 1876." (Warren et al. v. State of Colorado, 14 L. D. 681, 684, 685.)

Finally, we call attention to the decision of the Interior Department in 1899 in the contest between the Tulare Oil & Mining Co. and the Southern Pacific Railroad Co., involving portions of sections 19 and 20 of the township adjacent to the township in which this section is located. The mining company claimed a superior title to the railroad, based on asphaltum and other indications of petroleum. Its title to such portions of the land on which oil had been discovered was rejected by the Department of the Interior, which said:

"The principal result of what little prospecting and developing have been done is the finding of 'indications' of mineral, and it can not be said that the indications found on these lands in section 21 (of T. 30 S., R. 22 E., M. D. M., California) of oil and asphaltum, demonstrate that there is a permanent deposit of those minerals which will pay to work." (Tulare Oil & Mining Co. v. Southern Pacific R. R. Co., 29 L. D. 269, 272.)

Obviously the department would not have held the sections in question to be mineral if no physical discovery of mineral had been made at any point within the township, for it refused to classify as mineral parts of sections bearing indications of oil, although other parts of the same sections were actually producing oil.

The land must be known not only to be mineral, but to be valuable for mineral.

"The exceptions of mineral lands from-grants to States for universities and schools are not held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure for its extraction and known to be so at the date of the grant." (Davis v. Weibbold, 139 U. S. 507, 519; approved in Burke v. Southern Pacific, 234 U. S. 669, 700.)

Under this definition of our Supreme Court was section 16 in this same township "known mineral land" in 1903? Three dry holes have been drilled on that section.

We submit that as the State could not have successfully surrendered this section as mineral land in exchange for other land, so it can not now be deprived of title thereto on the ground that it was mineral land.

5. THE RULING AND REGULATIONS OF THE LAND OFFICE CONSTITUTE A RULE OF PROPERTY FOR THIS SECTION

At the date of the survey in 1903 the doctrine of the Diamond Coal & Coke case (decided in 1914) and of the Elk Hills case was not applicable to this section; as a section in place title to this section vested under the prevailing rules and decisions of the department, no mineral having been discovered on the section in place; and this became and is the rule of property for this case.

The Supreme Court of the United States has repeatedly held that long standing rulings of the Land Department and the construction of the Land Department in respect to granting statutes become a rule of property. (Barden v. Northern Pacific, 154 U. S. 288. Daniel v. Wagner, 237 U. S. 547, California v. Deseret Water, etc., Co., 243 U. S. 415.)

In the latter case the Supreme Court said:

66

'It is set forth that the rule laid down in State of California, 28 L. D., supra, is still adhered to by the Land Department; that selections aggregating many thousands of acres have been made in reliance upon it, and that no doubt large expenditures of money have been made in good faith upon the selected lands. It is therefore urged that such construction has become a rule of property. In this situation we should be slow to disturb a ruling of the department of the Government to which is committed the administration of public lands." (McMichael v. Murphy, 197 U. S. 304.)

This principle was also declared in Central Pacific v. Valentine, 11 L. D. 238, a decision of this department, which was quoted with approval in the case of Wyoming v. United States, decided at the present term of the Supreme Court, March 28, 1921. In the Wyoming case the court referred to the practice of the department by which the character of railroad lands was determined as of the date of patent. The court said that this was an exception to the general rule as to the time as of which the character of the land is to be determined. The Supreme Court quoted the language of Secretary Noble in the Valentine case: "This practice, having been uniformly followed and generally accepted for so long a time, there should be, in my judgment, the clearest evidence of error, as well as the strongest reasons of policy and justice controlling, before a departure from it should be sanctioned. It has, in effect, become a rule of property."

6. THE SURVEYOR GENERAL'S MINERAL RETURN

We pointed out at the argument that the surveyor general's mineral return was based on the erroneous assumption that the well-known asphaltum outcroppings of the adjoining township occur in this township. That the surveyor fell into this error is an undisputed fact. But in any event a surveyor general's mineral return does not establish the character of the lands. It is of little weight and scarcely informative. (State of Utah, 32 L. D. 117; State of California, 39 L. D. 158.)

"It is well settled that the return of the surveyor general as to the character of the land constitutes but a small element of consideration when the question as to the true character of the lands is at issue." (Kinkade v. California, 39 L. D. 491, 494; Barden v. Northern Pacific R. R., 154 U. S. 288.)

In the latter case the Supreme Court of the United States, speaking of a surveyor's report, said:

"It is merely a statement of the officer, more or less valuable, according to his opportunities of observation, and ought not to preclude the assertion of any right or the proof of the facts of the case as they really exist.

"It has been seen how limited are these opportunities of observation; the officer merely passing over the confines of the section, with his attention more directly absorbed by the duties of his scientific profession and the necessity for absolute accuracy in his courses and distances. Even were he a geologist or mineralist, his opportunities of observation along the course of his lines would be the scantiest; and beyond those lines, or on either side of them, his duties do not carry, but prohibit him from going. So that, practically, the interior of the section, or that portion thereof not immediately along the line being run, is beyond the observation or knowledge of the surveyor, and his opinion in relation