David Josiah Brewer

“ Now, the defect in this record which is fatal to the case of the plaintiff in error is that nowhere is it shown that all the testimony received on the trial is preserved. Under such circumstances, we are not at liberty to assume that there was in evidence a patent, or other instrument, of itself working a transfer of the legal title from the government to the railroad company, or evidence of any character removing all doubt as to the matter of exceptions, nor, on the other hand, that there was not testimony which conclusively established the existence of some one or more of those exceptions. ”

“ The grant, in terms, excepted such lands from its operation. There was no evidence of any adjudication by the land department, either through the issue of a patent or otherwise, that they were nonmineral lands. Barden v. ”