to be mineral, would result in about as much dispute as to land-titles within plaintiff's grant, as any other construction that could be made. As I understand the learned circuit judge, he does not say, that the land must be known to be mineral by any particular person, or any one person must have reasonable ground for believing it to be mineral, or it must be apparently mineral to any one person at the time the definite route of the road is fixed, but if upon inspection by any experienced person, such would be found to be the condition of the land, it should be classed as mineral. Some of our experienced prospectors have great confidence in their ability to determine whether or not land is apparently mineral from a very casual observation of the same. In questions arising upon disputes upon this point their services would be in great demand. The surest means of quieting titles would appear to be, the determining the question of the mineral character of the land upon issuing of patents to the same. As I have said, this would be conclusive upon all subsequent purchasers. It is perhaps true, that if it was determined that land was mineral, which was in fact agricultural, the railroad company would not be precluded thereby, as it is a prior, not a subsequent purchaser, to the issuing of the patent. But there would not be as much litigation arising from this source, nor so much anxiety about titles therefrom, as from the construction that would leave it an open question as to whether land was known to be mineral, or there was reasonable ground for believing it mineral, at the time the route of the road should be definitely fixed. I do not think it can be maintained, that a patent would determine these questions. It could only determine the nature of the land at the date it is awarded. The land department has always acted upon this theory. For more than 20 years it has been the practice of the land department, to recognize mineral locations and issue patents for mineral land found within the limits of the Northern Pacific Railroad Company's grant upon odd sections which have been discovered to be such since the date of that grant, and for about 10 years since the date of the definite fixing of the route of plaintiff's road, sometimes these patents have issued without any reference as to whether they were for lands upon odd, or even sections, the general surveys of the government not having extended to such locations. The land department has thus left it to the prospecting minor, up to this date, to identify the mineral lands, which are excepted and excluded from plaintiff's grant. Until patents are issued which will identify the lands granted to plaintiff, the government can perform any acts it may think necessary to enable it to identify the minerai lands

excepted from plaintiff's grant, and the government can avail itself of all information given it, even by prospecting miners, which has resulted in disclosing and identifying mineral lands within the limits of plaintiff's grant. A long and uninterrupted practice under a statute, by the officers of the executive department of the government who are compelled to act under it, is entitled to great weight in construing it, and in cases of doubt is controlling. McKeen v. Delancy, 5 Cranch, (U. S.) 22; U. S. v. Graham, 110 U. S. 219; The Laura, 114 U. S. 411: Brown v. U. S., 113 U. S. 568, 648; Peabody v. Stark, 16 Wall. (U. S.) 240.

It has

The action of the land department, which has been called upon to act under the land laws of the United States, shows that it has never considered that lands which were not known to be mineral at the date of plaintiff's grant, or at the time the route of its road was definitely fixed passed with it. recognized the location for mining purposes upon mineral lands upon odd sections which has been discovered to be mineral since the date of that grant, and since the date of the fixing of the definite route of plaintiff's road, and as I have said, has not hesitated to award patents for such mineral claims. Some of the most valuable mining properties in this state are upon odd sections of land within plaintiff's grant, the mineral character of which was discovered since the said dates. The filing of the list by plaintiff of the lands claimed by it, and for which it desired a patent, in my judgment, constitutes no element in determining the question at issue. That was the act of plaintiff, and no action which would amount to a determination of the character of the land claimed, appears to have been taken by the land department, and there was no law authorizing such action in filing a list of lands by plaintiff.

For these reasons, I hold that the defendants having discovered that the premises in dispute were mineral land, had a right to locate them as such, and that they are not lands granted to plaintiff, and that the demurrer of defendants ought to have been sustained to plaintiff's complaint.

Land Grants To Railroad Companies-Exception of Mineral Lands.-See note 46 Am. & Eng. R. Cas. 454; Francoeur v. Newhouse (C. C.,) 40 Am. & Eng. R. Cas. 439.

DESERET SALT Co.

ข.

TARPEY.

(142 U. S. 241.)

Land Grants-When Title Attaches.-The Act of Congress of July 1, 1862, granting land to the Union Pacific R. Co., transferred a present legal title as well as a beneficial title, and such title became attached to the specific sections of land as of the date of the grant when the lands were identified by the location of the road.

Withholding Patents until Cost of Surveying is Paid.-The amendment of 1864 to the Act of Congress of July 1, 1862, granting land to the Union Pacific R. Co., which directed the withholding of patents until the cost of surveying, selecting and conveying should be paid, did not alter the effect of the original grant; such amendment merely afforded a means of compelling the payment of such cost, and the patents issued were merely further assurances and evidence of the title granted by the Act.

IN error to the Supreme Court of the territory of Utah. This is an action of ejectment by D. P. Tarpey, the plaintiff below, against the Deseret Salt Company, a corporation created under the laws of Utah, for certain parcels of land in that territory, described in the complaint as the "northwest quarter of fractional section nine, (9,) in township eleven (11) north, range nine (9) west, Salt Lake base and meridian, and the northeast quarter and the southwest quarter of said section, in part covered with water; in all, three hundred and eighty acres, more or less." The greater part of these lands lie on the border of Great Salt Lake, a body of water in that territory of nearly 90 miles in extent, and in breadth varying from 20 to 30 miles, which holds in solution a large quantity of common salt. The remaining lands in the section are covered by the lake. In 1875 one Barnes took possession of a portion of these lands, and began the construction of improvements and the erection of machinery to raise the water of the lake and conduct it into ponds or excavations, partly natural and partly made by him, for the purpose of evaporating the water by exposing it to the sun, and thus producing salt. He commenced manufacturing salt in this way in 1876 or 1877, and continued in the business until September, 1883, when he sold and transferred the lands and improvements to the defendant, the Deseret Salt Company, which at once went into possession, and continued in the manufacture. The plaintiff derives his title from the Central Pacific Railroad Company, a corporation of California, to

which a grant of land was made by the act of congress of July 1, 1862, embracing the premises in controversy. A greater part of its lands, lying in Utah, was leased by the company to the plaintiff on the 7th of August, 1885, for five years, for the annual rent of $5,000, and in consideration of certain covenants in relation to the property which he undertook to perform. By one of these covenants he stipulated to begin to reduce the premises to possession, and to continue in that effort until he should be in the actual possession of the whole, and for that purpose to commence and prosecute any necessary or proper actions at law or other legal proceedings. This lease covered the premises in the controversy. On the 20th of October, 1868, the map of the definite location of the line of the railroad of the company to be constructed under the above grant was filed in the interior department, and accepted, as required by the act of congress. The premises in controversy constitute an alternate section of the land within 10 miles of the road, and its east, west, and north lines were surveyed by the United States in 1871. Its southern line, lying in the lake, had not been run. The selection list of lands for patent by the company, filed in the land office at Salt Lake City, which was produced in evidence, included the surveyed lands of the section, and showed that the costs of selecting, surveying, and conveying them had been paid. There was no evidence of any application for any other lands in the section, and no costs were paid or tendered for their selection, survey, and conveyance. The plaintiff also proved the incorporation in June, 1861, of the Central Pacific Railroad Company of California; its amalgamation and consolidation in June, 1870, with the Western Pacific Railroad Company, and, in August, 1870, with the California & Oregon Railroad Company, the San Francisco Oakland & Alameda Railroad Company, and the San Joaquin Valley Railroad. In the different articles of amalgamation a conveyance was made by the parties of their sev. eral interests to the new amalgamated company, as follows: "And the said several parties, each for itself, hereby, sells, assigns, transfers, grants, bargains, releases, and conveys to the said new and consolidated company and corporation, its successors and assigns, forever, all its property, real personal, and mixed, of every kind and description.' These instruments were all properly recorded. The court informed the jury of the general nature of the grant to the company by the act of congress of July 1, 1862, and the amendatory act of July 2, 1864, and instructed them, substantially, that the line of the road which the company was to construct under the grant, became definitely fixed upon its filing with

the department of the interior its map of definite location, designating the general route of the road, and that thereupon the beneficial interest in the land vested in the company by relation back to the date of the act of congress; and that, as it was agreed that the lands in controversy were a portion of an odd alternate section within the 20-mile limit of the grant, they passed to and vested in the company at the time of the filing of that map, unless they had been previously sold, reserved, or otherwise disposed of by the United States, or a pre-emption, homestead, 'swamp land, or other lawful claim had attached to them, or they were known to be mineral lands, or as returned were such; and further, that the lease bearing date the 7th day of August, 1885, from that company to the plaintiff, for five years from the 1st day of January, 1886, gave to him the right of immediate possession of the lands, unless they were within some of the exceptions of the grant. The defendant company denied that the title to the lands in controversy had passed to the Central Pacific Railroad Company, the lessor of the plaintiff, and requested the court to instruct the jury that the plaintiff had not shown any grant or conveyance by deed or other written instrument sufficient to invest him with title to the lands. This instruction was refused, and the defendant excepted. The jury returned a verdict in favor of the plaintiff for the possession of the lands described in the complaint, and for $500 for their use and occupation. Judgment being entered thereon, the case was carried to the supreme court of the territory, and there affirmed, From the judgment of the latter court the case is brought here on a writ of error.

P. L. Williams, for plaintiff in error.

W. H. H. Miller and J. B. Cotton, for defendant in error.

sented.

FIELD, J.-The only questions which appear in this case to have elicited much discussion in the court below relate to the title of the Central Pacific Railroad Company to Question pre- the lands granted by the acts of congress of July 1, 1862, and July 2, 1864, upon the filing of a map of the definite location of its contemplated road with the secretary of the interior, and its acceptance by him. Was it sufficient to enable the lessee of the company to maintain an action for the possession of the demanded premises? The lessee can, of course, as against a stranger, have no greater right of possession than his lessor. On the one hand, it is contended with much earnestness that upon the filing of the map of definite location of the proposed road, and its acceptance by the secretary of the interior, a legal title vested in the grantee to the alternate odd sections, subject to various