NORTHERN PAC. RY. CO. v. SODERBERG, 104 F. 425

GILBERT, ’Circuit Judge, after stating the case as above, delivered the opinion of the court. The question presented in this case is whether lánd which is chiefly valuable for granite of a good, merchantable quality is mineral land within the meaning of the exception from the grant of lands to the Northern Pacific Railroad Company.

Section 3 of the act of July 2, 1864, grants to the railroad company certain- odd-numbered sections not mineral, “and whenever on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office.” There is a proviso that “all mineral lands” are excluded from the operations of the act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands in odd-numbered sections nearest to the line of said road may be selected.

There is a further proviso “that the word ‘mineral,’ when it occurs in this act, shall not be held to include iron or coal,”

Section 2 of the act confers upon the railroad company power and authority to take from the public lands adjacent to the line of - said road materials of earth, stone, timber, etc., for the construction thereof. It is contended by the appellant that in all the congressional legislation relating to minerals and mineral lands prior to and including the grant to the Northern Pacific Railroad Company the terms “mineral” and “mineral land” were used in their proper and ordinary-sense, and were intended to embrace only such substances as were obtained from mines.

Reference is made to the ordinance of May 20, 1785, for the disposal of lands in the Western territory, in which there was .reserved “one-third part of all gold, silver, lead, and copper mines, to be sold or otherwise disposed of, as congress shall hereafter direct,” and to acts of congress in which lead mines and salines were reserved in the disposition of public lands, and especially to the act of September 4, 1841, the first general pre-emption law granting to settlers on public domain the right to purchase land to the extent of 160 acres each, in which it was provided in

section 10 that no lands on which are situated any known salines or mines should be allowed efi-try under the provisions of the act. We do not, however, discover from the earlier statutes any definite light as to the meaning of the word “mineral” as the same is used in the grant to the Northern Pacific Railroad Company. In the pre-emption act of 1841 the reservation was of lands on which are situated any known “salines of mines.” In the act of September 27, 1850, commonly known as the “Donation Act,” the exception is of “mineral lands” and lands reserved for salines.

What is meant by the term “mineral lands” is not defined in the act, but the act contains provisions stating that portions of the public lands which seem unfit for cultivation purposes may be surveyed into, townships only. Subsequently congress by statute repealed so much of the donation act as provided that none except township lines shall be surveyed where the lands are mineral, thus applying the term “mineral” to lands which seem unfit for cultivation.

So the act of March 3, 1853, directing the survey of public lands in California, provided that “none other than township lines shall be surveyed where the lauds are mineral.” The act of July 1, 1864 (13 Stat. 343), enacted one day prior to the date of the grant to the .Northern Pacific Railroad Company, has been regarded as a legislative

interpretation of the words “mines” and “'mineral lands” as they had been used by congress in prior legislation, and more especially in the pre-emption act of 1841. The act declared that “'any tracts embracing coal beds or coal fields, constituting portions of the public domain, and which as ‘mines’ are excluded from the pre-emption act of 1.841, and which under past legislation are not liable to ordinary private entry,” might be offered at public sale. This legislation expresses the meaning of congress in reserving “mines” in the pre-emption act.

It declares that mines of coal, which is not a metallic substance, and had not been specified in the reservations of gold, silver, copper, lead, etc., had been included in the word “mines” in the reservation of the pre-emption act. Mullan v. U. S., 118 U. S. 271, 6 Sup. Ct. 1041, 30 L. Ed. 170. Contemporaneous construction of the word “mineral” by the executive officers whose duly it was to consí rue ¡he land laws is, in a case of ambiguitv, of persuasive force. U. S. v. Moore, 95 U. S. 760, 24 L. Ed. 588; Brown v. U. S., 113 U. S. 568, 5 Sup. Ct. 648, 28 L. Ed. 1079; Pennoyer v. McConnaughy, 140 U.

S. 23, 11 Sup. Ct. 699, 35 L. Ed. 363; Barden v. Railroad Co., 154 U. S. 288, 14 Sup. Ct. 1030, 38 L. Ed. 992. In the case of In re Hooper, 1 Land Dec. Dep. Int. 560, the land department approved the rule which had been promulgated in a circular from the general land office That “whatever is recognized as a mineral by the standard authorities on the subject, where the same is found in quantity and quality to render the land sought to be patented more valuable on this account ¡han for purposes of agriculture, should be treated as coming within the purview of the mining act of May 10, 1872.” In Maxwell v.

Brierly, 1 Brainard, Leg. Pree. 98, it was held that land more valuable for its deposits of stone, or whatever is recognized as mineral, than for agriculture, is mineral land. In the case of In re Bennet, 3 Land Dec. Dep. Int. 116, it was held that mountain land covered with granite cliffs and rocks, the value of which was in the quarry in the face of the cliff, was mineral land, and might be entered as a placer claim. This ruling was adhered to until 1891, when an apparent departure was made in the case of Conlin v. Kelly, 12 Land Dec. Dep.

Int. 1, where it was held that stone useful only for general building purposes does not except land from pre-emption entry. In that case Kelly, the pre-emptioner, had made final payment for the land seven years before Conlin filed his contest claiming that the land was valuable for mineral. Decision seems to have been controlled by that fact, together with the further fact, as found by the secretary, that the stone in the tract in controversy had no peculiar property or characteristic to give it special value otherwise than for general building purposes. But in McGlenn v. Wienbroeer, 15 Land Dec. Dep.

Int. 370, it was held that .land which contains a valuable deposit of stone useful for special purposes might be entered as a placer claim. The secretary distinguished the case of Conlin v. Kelly, and declared that the ruling in that case rested upon equitable as well as legal considerations, and that the department declined to cancel an entry which had existed for seven years upon the plea that it was fraudulently made, on the ground that common building.rock, used for general-purposes, is mineral. Shortly after the decision of the case of Conlin v.

Kelly, and apparently for the purpose of disapproving the rule there announced, and of re-establishing the former ruling of the land department, congress enacted the law of August 4, 1892, permitting stone to be taken under the placer mining laws. In a case arising before the date of that law (South Dakota v. Vermont Stone Co., 16 Land Dec. Dep. Int. 263) it was held, following Conlin v. Kelly, that lands chiefly valuable for ordinary building stone are not excepted as mineral lands from the grant to the state for school purposes. But in Van Doren v.

Plested, Id. 508, it was held that land containing a deposit of sandstone of a superior quality for building and ornamental purposes, valuable only as a stone quarry, may be entered as a placer claim under the general mining laws. This also was held of an -entry made prior to the act of 1892. In the. case of In re Gibson, 21 Land Dec. Dep. Int. 329, it was held that land embraced within a placer entry of a tract chiefly valuable for ordinary building stone, made in 1889, is excepted from the subsequent operation of the grant of school lands to the state.

In that case the secretary declined to approve the ruling in the case of South Dakota v. Stone Co. In Pacific Coast Marble Co. v. Northern Pac. R. Co., 25 Land Dec. Dep. Int. 233, it was held that lands valuable only on account of the marble deposit contained therein did not pass to the Northern Pacific Railroad Company under its grant of July 2, 1864, but were subject to placer entry under the mining laws. These rulings of the land department are, in the main, in harmony with the definition of the word “mineral” as the same is popularly and generally accepted.

A mineral is defined by the Century Dictionary to be: “Any constituent of the earth’s crust;- more specifically an inorganic body-occurring in nature, homogeneous, and having a definite chemical composition which can be expressed by a chemical formula, and further having certain distinguishing physical characteristics.” Bainb.

Mines (4th Ed.) p. 1, defining the term “mineral,” says: “The term may, however, in the most enlarged sense, be described as comprising all the substances which now form or which once formed a part of the solid body of the earth, both external and internal, and which are now destitute of or incapable of supporting animal or vegetable life.

In this view it would embrace as well the bare granites of the mountains as the deepest hidden diamonds and metallic ores.” • There is authority in the earlier English decisions for holding that minerals signify that which is obtained from mines, from underground workings, as distinguished from that which is quarried. Davvell v. Roper, 24 Law J. Ch. 779; Rex v. Sedgley, 2 Barn. & Adol. 65; Rex v. Brettell, 3 Barn. & Adol. 424. But the weight of English authority includes under the term “mineral” that which is quarried as well as that which is obtained from mines. In Railway Co. v. Checkley, L.

R. 4 Eq. 19, Lord Romilly, M. R., held that stone was a mineral under a reservation of mines and minerals. He said: i "Stone Is, in my opinion, clearly a mineral: and In fact everything except the merest surface, which is used for agricultural purposes. Anything beyond that which is useful for any purpose whatever, whether it is gravel, marble, fire clay, or the like, comes within the word ‘mineral’ when there is a reservation of the mines and minerals from a grant of land.” In Earl of Rosse v.

Wainman, 14 Mees. & W. 859, Parke, B., said: “Beds of stone, which may he dug by winning or quarrying, are, therefore, properly minerals.” Similar views are expressed in Midland Ry. Co. v. Haunchwood Brick & Tile Co., 20 Ch. Div. 552; Micklethwait v. Winter, 5 Eng. Law & Eq. 526; Hext v. Gill, 7 Ch. App. 699; Jamieson v. Railway Co., 6 Scot. L. R. 188; and Attorney General v. Granite Co., 35 Wkly. Rep. 617. In the case last cited it was held that the term “mineral” included granite. In Pennsylvania the ruling in Earl of Rosse v. Wainman was followed in Griffin v. Fellows, *81 Pa.

St. 114, where it was said: “The term ‘mineral’ embraces everything not of the mere surface which is used for agricultural purposes. The granite of the mountain as well as metallic ores and fossils are comprehended within it.” In Hartwell v. Cammon, 10 N. J. Eq. 128, it was held that paint stone found in strata below the surface of the soil is included in the terms “mines” and “minerals.” Under the authority of these decisions and

definitions, we entertain no doubt that in the reservation of mineral lands from the grant to the Northern Pacific Railroad Company the granite quarry in controversy was included.

But if, indeed, the reservation of mineral lands, as the term “mineral” was used and understood at the time of the grant to the Northern Pacific Railroad Company, was insufficient to exclude from the grant lands valuable principally for granite quarries, congress nevertheless retained the power to subsequently enlarge the reservation, and make it more comprehensive, at any time before rights were vested by the definite location of the road. The grant was a grant of lands that were not otherwise reserved or appropriated at the time of the definite location of the line of the road. Menotti v. Dillon, 167 U.

S. 703, 17 Sup. Ct. 915. 12 L. Ed. 333; Railroad Co. v. Sanders, 1 C. C. A. 192, 202, 49 Fed. 129, 134. In the ease last cited this court said: “Although there was no statute providing' for the sale or bestowal of mineral lands at the time of the grant to plaintiff, congress had the right to, and did afterwa-rds, make such a law; and under it claims could be and were lawfully initiated prior to the definite fixing of the line of plaintiff’s road.

We think that the reservations in the plaintiff’s grant were made in contemplation of future legislation as well as the then existing laws.” Soon after making the grant, congress enacted the first mining act. 14 Stat. 251. The first

section provides: “That the paineral lands of the public domain, both surveyed and unsur-veyed, are hereby declared to be free and open to exploration and occupation-by all citizens of the United States,” etc. On May 10, 1872, it was enacted (17 Stat. 91): “That all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase,” etc.

On June 3, 1878, congress enacted a law providing for the sale of lands valuable chiefly for timber or stone. 20 Stat. 89. These statutes define the status of the mineral lands included within the territorial limits of the railroad grant at the time when the grant took effect, the date of the definite location of the road. The land in controversy was land valuable chiefly for stone, and as such was offered for sale. The decree of the circuit court is affirmed.