ministerially. In U. S. v. Stone, 2 Wall. 525, the supreme court say: "The patent is but evidence of a grant, and the officer who issues it acts ministerially, and not judicially."

More faith and credit should be given to the solemn judgment of a court having jurisdiction than to the acts of the land-officers who made this survey, and who issued the patent. To hold that defendant, after receiving notice, might discharge itself of the legal effect thereof by relying on the patent and survey, and by purchasing, notwithstanding the notice, and thus place itself in the position of an innocent. purchaser, would be to give to the act of the officers who make the survey and issue the patent as much legal and binding force as a judgment of a court in adversary proceedings. Suppose some officer of the United States, authorized in the premises, had called upon the defendant's board of directors, while in session, negotiating for the purchase of the grant in question, and then had notified the defendant, through its board, that the government was not satisfied with the survey, that it had been fraudulently made, so as to extend the boundaries, and that, if defendant bought, it must do so at its peril, what would be the legal effect of such a notice if so given? Could the defendant, under such circumstances, take up the grant papers, the survey, and Burdett's action thereon, and the patent, and say: "Here is a patent. It is the highest evidence of title. To it full faith and credit should be given. It is not probable the patent can be successfully assailed in a direct attack, and so the purchase will be made and the risk assumed,”—and thereby, because it chose to place such great faith in the patent, place itself in the position of an innocent purchaser? If it could, then there can be no such a thing as a direct attack on a survey to overthrow it for. fraud, if the land described in it is in the hands of one who has paid value, and read the patent, and presumed the notice given to him was not well grounded. It seems to us there is a clear distinction between the weight which should be given to the judgment of a court having jurisdiction and adversary parties, and that to be given to officers intrusted with duties not so clearly judicial in character. If the acts of the officers of the land department are to have the force and effect of judgments in a court, with adversary parties before it, practically the power of a court of equity would be limited, in proceedings to set aside for fraud or mistake, to those cases where the land was yet in the hands of first holders; because, under such a rule, the reading of the patent, and presuming it to be correct, would place the party contracting, after his purchase, as an innocent purchaser, beyond the reach of a court of equity. It seems to us the rule is that when the purchaser, before the conclusion of his purchase, or the payment of the purchase money, has notice of an alleged equity in another, it then becomes inequitable for the purchaser to buy, and thus embarrass the true owner in the assertion of his right.

The action of Pelham, and of the confirmatory act, are not in this proceeding to be vacated; but it is the act of the officers in carrying such act into effect which is attacked. If Pelham's act is a judgment, it fixes the land west of the spring; and it would be a hard rule to say the survey is a judgment which cannot be attacked in a direct proceeding. Such a principle would conclude the government where the confirmation was for the N. E. 4 of a tract, and the patent, by fraud or mistake, conveyed another and different tract, as, for instance, the S. W. 4. If the confirmation is a judgment, it is for land west of the spring, and there is no power to convey land east of that point. The action of the officers in this case, in issuing a patent, does not protect one who buys with notice, either in fact, or from the record, which he is bound to examine; so that he cannot be affected by notice of fraud in the survey. Under the circumstance of this case, the defendant is not an innocent purchaser.

The application for perpetual injunction will now be considered. There is a branch of this case not much discussed in the briefs filed, and which is of as

high importance as any other contention in the record. It arises on the following allegations of the supplemental bill: "That said defendant is now and has been in possession of large portions of said tract of land mentioned and described in said original bill of complaint as being the property of the United States, and by said fraudulent survey now included and embraced within the. boundaries mentioned and described in the patent of the United States, as set forth in said bill of complaint; and that said defendant is now in possession of many mines, leads, lodes, and veins of mineral-bearing quartz or rock belonging to the United States, and situated upon the said tract of land, the property of the United States. The said mines, leads, lodes, and veins are very rich and valuable for gold, silver, copper, and other valuable ores. The said defendant claims said land, with its mines, leads, lodes, and veins of mineralbearing rock and mineral deposits, as your orator is informed and believes, by and under the said patent of the United States." After making other averments, there is a prayer that defendant be forever prohibited and enjoined from mining or using or appropriating said ores. The defendant, in its answer to the supplemental bill, admits that it is so mining at what is known as the "Big Copper Mine," and claims said mine to be within the lines of the land conveyed to it, and that, under the patent and survey, it is the legal owner of such mine, and all other minerals within the said tract, and has the legal right to hold, mine, control, and use the same, as against the government of the United States. This supplemental bill, and the admissions in the answer thereto, present an entirely different question from the others which are heretofore discussed. The supplemental matter proceeds in part upon the theory that, even though the whole relief prayed for may not be granted, yet, if the court should hold that the survey and patent cannot under the evidence be set aside, it then must give construction to the patent, and say to whom the mines of gold, silver, and copper lying within the grant lines belong, and whether the defendant shall be enjoined perpetually from working them, and especially from mining in the Big copper mine, which defendant admits it was working when the supplemental bill was filed. This question must depend upon the rights which passed to Ramirez by the patent from the United States; and, as that patent only relinquished to him his right as it existed at the date of the session, it is necessary to examine briefly the law of Mexico, to determine what, as between Ramirez and that government, he then actually owned,-whether only the surface of the land; or that, and also the mines of gold and silver beneath the surface. Certain decrees were in force at the time of the separation of Mexico from Spain, whereby the mines of gold, copper, and silver were held by the crown of Spain. Upon the separation, which resulted in creating Mexico a separate government, the title to all mines within her territory passed to and vested in the Mexican government, including therein what is now New Mexico. A grant of land by the Mexican government did not carry such mines. It did not require a reservation by the government of such mines to prevent them from passing. No interest in such mines, whether in granted or ungranted land, could be acquired by the individual citizen, under the Spanish or Mexican law, except through mining ordinances. The law of those countries recognized the title to all such mines, whether in public or granted land, as in the government, and not subject to be passed out of it by a mere grant. Rock. Sp. & Mex. Law, 124-127, 130, 131,411; Hall, Mex. Law, §§ 1210-1213, 1235; Moore v. Smaw, 17 Cal. 199, 12 Min. R. 418, 424-428. We conclude, then, that by the grant of the land in controversy by the Mexican government to Jose Serafin Ramirez of the Canon del Agua no interest and title in and to such mines therein contained was vested in him; and as it does not appear by the record that any individual interest in such minerals had been obtained by him, or those claiming under him, by virtue of the mining ordinances of the Mexican government prior to the cession of the territory of New Mexico to the United States,

that these minerals were at that date the property of the Mexican nation, and by the cession passed, with all other property of Mexico within the limits of New Mexico, to and became the property of the United States. Moore v. Smaw, 17 Cal. 199.

When, then, the lands contained within the limits of this grant passed, by its cession, under the dominion of the government of the United States, the title to such minerals therein contained became vested in the government of the United States. Was such title to those minerals within the Ramirez grant divested by the act of confirmation, passed June 12, 1866? Ramirez had no claim to any more interest than he had obtained by virtue of the grant. It was only the right in the land which had passed by the terms of the grant to the grantee, and which, as we have seen, did not include such minerals therein contained, that congress was asked by him to confirm. The Spanish and Mexican governments reserved the right to the minerals in their lands, unless expressly granted, and they were not by the Mexican government expressly granted to Ramirez. The treaty under which Ramirez had the right to have his interest in the land in question confirmed by our government only contemplated the confirmation by congress of such title thereto as had been conveyed to Ramirez by the government of Mexico, and which did not confer upon him the title to such mines therein contained. These Ramirez did not own when confirmation by congress of this grant was asked, and given by that body. If such confirmation passed the title to these minerals to the grantee, then it not only made good the grant made by Spain and Mexico, but also conveyed additional rights and interests to which he was not entitled, and for which he had not asked, and which, it is believed, was contrary to the whole public policy of the government in respect to its mineral lands and mineral interests. This will be made more apparent by an examination of our laws respecting this interest in the mineral lands of the government. From the date of the ordinance of May 20, 1785, providing for the disposal of the public lands in the "Western Territories," and reserving the interest of the government in the minerals therein, to the present time, through all the acts of congress in any way affecting the public domain, this interest in the mineral wealth of the public lands has been carefully guarded, and special legislation, as applicable to mineral. lands, in contradistinction to all other lands, enacted for its protection and preservation; while our present laws governing the acquirement of mineral lands clearly contemplate the disposal of such lands in small quantities, and not in large bodies or tracts, so as to encourage and induce prospectors to make discoveries, and extend and increase the means of their development when made, and the consequent enrichment of the country. Donald. Pub. Dom. c. 26, p. 306 et seq.

In his report as secretary of the interior, Mr. Ewing, on December 3, 1849, said: "The right to the mines of precious metals which, by the laws of Spain, remained in the crown, is believed to have been also retained by Mexico while she was sovereign of the territory, and to have passed by the transfer to the United States. It is a right of the sovereign in the soil, as perfect as if it had been expressly reserved in the grant; and it will rest with congress to determine whether in those cases where land duly granted contains gold, this right shall be asserted or relinquished. If relinquished, it will require an express law to effect the object, and, if retained, legislation will be necessary to provide a mode by which it shall be exercised." In Moore v. Smaw, 17 Cal. 216, what seems to us to be the true doctrine, amply sustained by authority, is stated as follows: "The minerals were vested under the Spanish monarchy in the crown, and-after the separation from Mexico, in that nation-did not pass, as we have already stated, by the ordinary grant of land without express words of designation. Such grant transferred only an interest in the soil, distinct from that of the minerals. The interest in the minerals was conveyed through the operation of the mining ordinances, by registry of discovery, or by pro

ceedings upon denouncement, when a mine once discovered had been forfeited or abandoned. * * * They constituted, therefore, at that time, the property of the Mexican nation, and by the cession passed to the United States." According to the common law of England, mines of gold and silver were the exclusive property of the crown, and did not pass under a grant by the king under the general designation of lands or mines." Hicks v. Bell, 3 Cal.

220.

It thus follows, at the time of the session, that there was a dual interest in the property of the Ramirez grant,-his title or equity in the land, and the paramount title which the United States held in the mines. What title to the mines, under his grant, could Ramirez have asserted against the Mexican government? None. Neither could he have asserted any against the United States as to the mines. The past policy of the government, which has continued without interruption to the present, has been to preserve and protect its interest in the mineral wealth in the public domain. A résumé of the legislation of congress respecting the mineral lands will be found in Donald. Pub. Dom. cc. 26 and 32. In Deffeback v. Hawke, 115 U. S. 401, 6 Sup. Ct. Rep. 95, is a very full recital of congressional legislation respecting mineral lands. The pre-emption act of 1841 excepts from pre-emption and sale “lands on which are situated any known salines or mines." The act extending to California the privilege of settlement on unsurveyed lands contains a clause that the provisions of the act "shall not be held to authorize pre-emption and settlement of mineral lands." Similar exceptions were made in grants to different states, and in grants to aid the construction of railroads. California was granted 10 sections of land for the purpose of erecting public buildings of that state, but there is a proviso that "none of said selections shall be made of mineral lands." In the grant to the Union Pacific Railroad and its associated companies, all mineral lands other than coal and iron are excepted from the grant. A similar exception is made in grants for universities and schools; and, in the law allowing homesteads, mineral lands are not liable to exemption. It is believed a detailed examination of the several acts of congress will fully establish that in June, 1866, when this grant was confirmed, that it was the settled policy of congress to reserve and protect the mineral interest of the government, and, as time advanced, this policy became more firmly established. So clearly does the legislation of congress evince an intent to reserve the mineral wealth from the operation of the general laws respecting lands, that the supreme court of the United States, after a review of this clearly-de- ' fined congressional policy, say: "It is plain, from this brief statement of the legislation of congress, that no title from the United States to land known at the time of sale to be valuable for its minerals of gold, silver, copper, or cinnabar can be obtained under the pre-emption or homestead laws, or the town-site laws, or in any other way than as prescribed by the laws specially authorizing the sale of such lands, except in the states of Michigan, Wisconsin, Minnesota, Missouri, and Kansas." This early and continuous manifestation by the law-making department of its purpose to reserve mines should weigh heavily in determining whether, under a general act of confirmation, they intended to direct the conveyance of well-known and long-established mines of gold and silver, thus placing a claimant under a Mexican grant not only in a better position than he had a right to ask, but in a better position than grantholders from the government. There are California and perhaps other cases holding to the contrary, notably Moore v. Smaw; but a careful study of them will prove that there were circumstances in the grant confirmation indicating an intent not disclosed in this case. Here it is well proven that all the country about San Francisco, and east and north-east of the spring, was, in the language of the court in Deffeback v. Hawke, supra, "well-known mineral land," -not only to Ramirez, who had mined all about that region, but to hundreds of miners engaged at and in the region from 1842 continuously down to the

present day. It is not to be considered in the light of a grant where the mines were undiscovered and unknown, but in the light of a conveyance, covering a valuable mineral belt, mined over for over half a century, and with miners working openly and notoriously with claims for years, at the very time of the confirmation, survey, and patent; and right at this point the thought will intrude itself that it is passing strange that with this as a well-known mining camp, and the survey as embracing mineral lands well known and very valuable, that such facts were not reported by the surveyor general with the survey, for the consideration of the department, when the survey was extended to embrace mineral land.

The supreme court of the United States in Deffeback v. Hawke, supra, quite clearly make a distinction between the rule which should be applied to lands well known to be valuable for gold and silver mines, and those where there is at the time of the patent no reason to anticipate such a condition. The policy of this government and that of Mexico we believe to be substantially alike in respect to such mineral. In Mexico, such lands and the mines therein were governed by the mining ordinances, and were taken out of the operation of the general laws for the disposition of agricultural lands. So, also, here, one set of laws apply to the sale of land not mineral, and another to the sale of those known to be full of gold and silver. We think the patent sought to be affected in this case stands on an entirely different principle from those referred to in either Moore v. Smaw, the Tameling Case, or the Maxwell Land-Grant Case. In the first of these cases, the patent seems to have been the result of a judicial inquiry. The court in that case say, (17 Cal. 223:) "The object of the act is to ascertain and settle private land claims in the state of California. This object is declared in the first section. It is not merely to ascertain, but to settle, them; that is, to place them beyond controversy." In the Tameling Case, 93 U. S. 662, in referring to the same act, the court say: "It will thus be seen that the modes for the determination of land claims of Spanish and Mexican origin were radically different. Where they embraced lands in California, a proceeding essentially judicial in character was provided, with the right of ultimate appeal. No jurisdiction over such claims was conferred on the courts in New Mexico." It was principally upon this theory that Moore v. Smaw was decided. It is true that an additional view was also stated on another point; but the soundness of that view, with due respect to the learned court that made the ruling, may well be doubted. So far as it was there held that the principles which apply against a private individual grantor shall also apply to public grants against the government, we are inclined to question its legal accuracy, and to believe that a grant from the government, unlike that of an individual, should be construed strictly against the grantee, and not liberally in his favor. “According to the common law of England, mines of gold and silver were the exclusive property of the crown, and did not pass in a grant of the king under the general designation of lands or mines." It is also the doctrine in the case of Queen v. Earl of Northumberland, 1 Plow. 310, that, while mines may pass by the king's patent, they will not do so without the use of "apt and precise words." The great body of our law comes to us from that source, and we can see no reason why this construction as to patents by the government should not also be adopted. "It is an old principle of law that exceptions in a deed and every uncertainty are to be taken favorably for the grantee; but this rule has no application to grants of the sovereign." 2 Devl. Deeds, § 848. See also there a large citation of authorities under note 4. "The manner of granting by the king does not more differ from that by a subject than the construction of his grant when made. (1) A grant made by the king shall be taken most beneficially for the king, and against the party, whereas a grant of the subject is taken most strongly against the grantor." 1 Bl. Comm. 347. "Public grants are to be construed strictly." Railway Co. v. Railway Co., 97 U.S. 497; Bridge v. Bridge, 11 Pet. 544. Other