Page:Federal Reporter, 1st Series, Volume 10.djvu/798

786 FEDERAL REPORTBB, �lands, and that the listing over to the state, and issuing of the patent, were by fraud, or mistake, or error in law; at all events, without authority, and unlawful. �The facts, as clearly shown by the uncontradicted evidence, are : �ihat the Black Diamond Coal Company took possession of this half section of land as early as 1861, and froin that time until after the patent issued, in 1871, continuee in the possession of said land, working a coal mine upon it. It had tunnels, drifts, hoisting works, and other machinery, coal bunkers of large capacity, etc., on it, costing many thousands of dollars, and had con- structed a railroad, operated by steam, to transport its coal to New Tork Land- ing, on the bay, some 12 miles distant, whence it was shipped to market. There was also a mining town built upon the land in question, occupied at different times by from several hundred to over a thousand inhabitants, all engaged in coal mining on this and adjacent lands, or in some way connected with the mining interests ; there being no other occasion for a town at that point, and no other occupation for its inhabitants. The lands were situated on the side of Mount Diablo, at au elevated point, the surface rough and bro- ken, of no use for agricultural purposes, and of inconsiderable utility even for pasturing, and of but trifling value for any purpose whatever, o*ber than for the coal mines situated and worked thereon. �The lands were surveyed and sectionized in March, 1864, the stirveyor pro- fessing to proceed under the act of 1853. The land was indicated on the plats and surveys as coal land. The land wasselected as school land at the instance of one Frank Barnard, and, at his suggestion, and osteusibly for his use, lo- cated by Leander Ransom, state loeating agent, on June 25, 1865. It was selected at the suggestion, and, doubtless, for the real benefit, of the Black Diamond Coal Company, which was at that time in occupation. But neither Barnard nor the company took raeasures to perfect the title. ' On August 28, 1868, the defendant Mullan, while the Black Diamond Coal Company was actually in possession, working the coal mine, both as is admitted in the answer and shown by the proofs, applied to John W. Bost, surveyor general of Cali- fornia, to purchase the land from the state, as having been selected by the state as school land, in lieu of a corresponding half of a section 16 not availa- ble. The surveyor general objected that it was coal land, and not subject to selection ; but said Mullan insisted that it was subjeot to selection, and that the selection had been approved by the register of the land-offlce; that he was entitled to purchase, having ofEered to comply with the state law upon the subject ; and that if the surveyor general should refuse to permit a purchase, he could compel him to do so by mandamus. Whereupon, on August 25, 1868, the surveyor general accepted the application to purchase. On April 27, 1869, he certified the selection to the United States land-ofHce, and on May 21, 1869, he issued a certiflcate of purchase to Mullan. On June 3, 1871, the secretary of the interior listed the land to the state "subject to any interfering rights that may exist to them." On Mardi 28, 1871, Mullan assigned liis rights to defendant Avery, but, as testified by Avery, he still retains an inter- est in the land. On the same day Mullan also assigned to Avery any and all right to any claim which had accrued to him against the Black Diamond Coa- ��� �