Statement of the Case. NORTHERN PACIFIC RAILWAY COMPANY v. SODERBERG. APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIR CUIT. No. 61. Argued December 12, 1902.-Decided February 23, 1903. 1. Although the jurisdiction of the United States Circuit Court be originally invoked on the ground of diverse citizenship, the attribute of finality cannot be impressed upon the judgment of the Circuit Court of Appeals unless it appear that the original jurisdiction was dependent entirely upon such diversity of citizenship, and where the case made by the plaintiff depends upon the proper construction of an act of Congress with the contingency of being sustained by one construction, and defeated by another, it is one arising under the laws of the United States, and this court has jurisdiction thereof under section 1 of the act of 1888. 2. Lands valuable solely or chiefly for granite quarries are mineral lands within the exception and the meaning of the provisions of the act of Congress of July 2, 1864, granting, under conditions therein stated, every alternate odd-numbered section of public land not mineral to the amount of twenty alternate sections per mile on each side of its line to the Northern Pacific Railroad Company. The word mineral need not be construed as synonymous with metalliferous. Land grant statutes should receive a strict construction, and one which supports the contention of the government rather than that of the individual-the sovereign rather than the grantee. Nothing passes by implication. THIS was a bill filed by the Railway Company in the Circuit Court for the District of Washington to enjoin the defendant Soderberg from taking, removing or disposing of granite from a quarter section of land of which he had taken possession under a mineral location, and for an account of the granite quarried or removed. The bill alleged the incorporation of the Northern Pacific Railroad Company under an act of Congress of July 2, 1864, with power to construct a railroad from Lake Superior to Puget Sound, with a branch line via Columbia River to Portland; the grant of every alternate odd-numbered section of public Counsel for Appellant. land, not mineral, to the amount of twenty alternate sections per mile, on each side of the line when passing through the Territories; acceptance of the act by the Railroad Company; a joint resolution of Congress approved May 31, 1870, authorizing the company to issue bonds for the construction of the road, with a privilege to the company of building its main road by the valley of the Columbia River, with a branch across the Cascade Mountains to Puget Sound; the definite location on March 26, 1884, of the Cascade branch of the road; the completion and acceptance of the road coterminus with its public lands; the conveyance on August 3, 1896, of all its property to the Northern Pacific Railway Company, which has since continuously operated such road. The bill further alleged that the quarter section in dispute was rough, mountainous land, the principal value of which consisted in the existence of a ledge of granite of good merchantable quality, and valuable for building stone; that the defendant in 1898 entered upon this quarter section and began to quarry, remove and dispose of such granite under a mineral location of the land in question, contending that such land is excepted from the general land grant, and that the question whether this land is mineral or non-mineral has not yet been determined by the department. Wherefore an injunction was prayed. The answer raised no issue of fact, but averred that the lands were mineral in character and as such excepted from the grant, and that defendant having complied with the rules and regulations of the Land Department and made the proper proof, it was assumed aud decided that the defendant was entitled to a patent. That he paid the proper fees to the receiver, who forwarded the proofs and records to the Land Department with a recommendation that a patent issue. The patent, however, does not seem to have been actually issued until after the beginning of this suit. The court heard the case upon a stipulation of facts and entered a decree dismissing the bill, and quieting the title of the defendant to the lands in question. 99 Fed. Rep. 506. On appeal to the Circuit Court of Appeals this decree was affirmed. 104 Fed. Rep. 425. Mr. C. W. Bunn and Mr. James B. Kerr for appellant. Opinion of the Court. Mr. R. A. Ballinger and Mr. J. T. Roland for appellee. Mr. Assistant Attorney General Van Devanter for the United States. Mr. Assistant Attorney Pugh was on the brief. MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court. 1. Motion was made to dismiss this appeal for the reason that, as the jurisdiction of the Circuit Court was invoked upon the ground of diverse citizenship, the decree of the Circuit Court of Appeals is final, under section 6 of the Court of Appeals act of 1891, as interpreted by the decisions of this court in Colorado Central Mining Co. v. Turck, 150 U. S. 138; Borgmeyer v. Idler, 159 U. S. 408, and Press Publishing Co. v. Monroe, 164 U. S. 105. But, to impress the attribute of finality upon a judgment of the Circuit Court of Appeals, it must appear that the original jurisdiction of the Circuit Court was dependent "entirely " upon diverse citizenship. That is not the case here. Plaintiff's bill does indeed set up a diversity of citizenship as one ground of jurisdiction, but as it appears that its title rests upon a proper interpretation of the land grant act of 1864 as to the exception of non-mineral lands, there is another ground wholly independent of citizenship under that clause of section 1 of the act of 1888, 25 Stat. 433, clothing the Circuit Court with jurisdiction of all civil suits involving over $2000, "and arising under the Constitution or laws of the United States." If the case made by the plaintiff be one which depends upon the proper construction of an act of Congress, with the contingency of being sustained by one construction and defeated by another, it is one arising under the laws of the United States. Doolan v. Carr, 125 U. S. 618; Cooke v. Avery, 147 U. S. 375. Under the allegations of the bill the fact that the Land Department had not determined whether the land in question was mineral or non-mineral, does not involve a question of fact, as the facts are admitted, but solely a question of law whether land valuable for its granite is mineral or non-mineral under the terms of the grant. Morton v. Nebraska, 21 Wall. 660. The fact that a patent issued pending suit is neither set up in the pleadings nor Opinion of the Court. noticed in the opinion of either court. The motion to dismiss must therefore be denied. And 2. We are thus brought to the main question in the case, viz. Whether lands valuable solely or chiefly for granite quarries are mineral lands within the exception of the grant of 1864 ? The third section of the act containing the granting clause of land "not mineral" also contains the following provisos: "Provided further, That all mineral lands be, and the same are hereby, excluded from the operations of this act. provided, further, That the word mineral,' when it occurs in this act, shall not be held to include iron or coal." The inference from this proviso is that in the absence of a special provision both iron and coal would be considered as minerals, and thus to repel the idea that only metals were included in the word mineral. This inference is strengthened by the fact that the day before this act was passed, July 1, 1864, 13 Stat. 343, another act was approved authorizing the public sale to the highest bidder of "any tracts embracing coal beds or coal fields," and providing that any lands not thus disposed of shall thereafter be liable to private entry. Relying largely upon act as a “legislative declaration" this court held in Mullan v. United States, 118 U. S. 271, that coal lands are mineral lands within the meaning of that term as used in the statutes regulating the disposition of the public domain. This effectually disposes of the argument that the word "mineral" must be construed as synonymous with metalliferous. this Upon the other hand, section 2 declares that “the right, power, and authority is hereby given to said corporation to take from the public lands, adjacent to the line of said road, material of earth, stone, timber, and so forth, for the construction thereof." There is a possible inference from this that stone was not to be regarded as mineral, although it is more likely that a grant was intended of all material serviceable in the construction of the road, even though it might otherwise be excepted from the grant as a mineral. Taking these two sections together, it would seem that the reason for providing in the third section that iron and coal lands should not be deemed mineral was the same as the liberty given by the second section to take VOL. CLXXXVIII-34 Opinion of the Court. materials of earth, stone and timber, namely, to facilitate the construction and operation of the railroad, in which large quantities of coal and iron would be required. The word "mineral" is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its signification in a given case. Thus the scientific division of all matter into the animal, vegetable or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom, and therefore could not be excepted from the grant without being destructive of it. Upon the other hand, a definition which would confine it to the precious metals, gold and silver, would so limit its application as to destroy at once half the value of the exception. Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as “any constituent of the earth's crust ;" and that of Bainbridge on Mines: "All the substances that now form, or which once formed, a part of the solid body of the earth." Nor do we approximate much more closely to the meaning of the word by treating minerals as substances which are "mined," as distinguished from those which are "quarried," since many valuable deposits of gold, copper, iron and coal lie upon or near the surface of the earth, and some of the most valuable building stone, such, for instance, as the Caen stone in France, is excavated from mines. running far beneath the surface. This distinction between underground mines and open workings was expressly repudiated in Midland Ry. Co. v. Haunchwood Co., L. R. 20 Ch. Div. 552, and in Hext v. Gill, L. R. 7 Ch. App. 699. The ordinance of May 20, 1785, authorizing the sale of lands in the western territory, with a reservation of "one third part of all gold, silver, lead and copper mines, to be sold or otherwise disposed of, as Congress shall hereafter direct," was evidently intended as an assertion of the right of the government to a royalty upon the more valuable metals-a prerogative which had belonged to the English Crown for centuries, though there confined to gold and silver, which were only considered as royal metals, and having its origin in the king's prerogative of coinage. 1 Black. Com. 394. While While intrinsically the precious |