David Josiah Brewer

“ The fact remains that, under the law, the duty of determining the character of the lands granted by congress, and stating it in instruments transferring the title of the government to the grantees, reposes in officers of the land department.'
But, it is said, no patent was issued in this case, and therefore the holding in the Barden Case that the issue of a patent puts an end to all question does not apply here. But the significance of a patent is that it is evidence of the transfer of the legal title. There is no magic in the word 'patent,' or in the instrument which the word defines. ”

“ The general statutes of congress in respect to homestead, pre-emption, and townsite locations provide that they shall be made upon lands that are nonmineral; and, in approving any such entry and issuing a patent therefor, could it be tolerated for a moment that the land department might limit the grant and qualify the title by a stipulation that, if thereafter mineral should be discovered, the title should fail? It cannot in that way avoid the responsibility of deciding and giving to the party seeking to make the entry a full title to the land, or else denying it altogether. ”

“ It is undoubtedly true that settled rules of law cannot be ignored because, in any particular case, their application works apparent harshness. At the same time, the result to which the contentions of the defendant lead may well compel a careful examination of them.
These contentions are that congress granted only nonmineral lands; that this particular tract is mineral land, and therefore, by the terms of the act, is not within the grant; that no patent has ever been issued, and therefore the legal title has never passed from the government ”