Morrison Waite

“ It remains to consider whether, since the land was in fact listed to the state by the proper officers of the government, the selection can be vacated, and the titles under it annulled, in a suit in equity brought by the United States directly for that purpose; and about this we have no more doubt than the circuit court seems to have had. The lands were, as we have seen, known coal lands. No one seriously disputes that now, and, in our opinion, upon the well-established facts, Mullan and Avery occupy no better position than the state would if no patent had been issued to Avery. ”

“ The surveyor general at first objected because the land was coal land. After some conversation on the subject, in which Mullan was told that the lands were in the neighborhood of the Mount Diablo coal mine, and were probably coal lands, his application for the purchase was accepted, he insisting that the lands were state lands, and that the register of the land-office had acknowledged the right of the state to make the selection. ”

“ But the evidence satisfies us entirely that they were not ignorant. The assignment of Mullan to Avery of his claim against the company for coal taken out, made at the same time that he transferred the certificate of purchase, shows the knowledge of all the facts by both when Avery acquired his interest, and Mullan's information on the subject is shown by what took place between him and the surveyor general of California when he made his purchase. ”