Show state school lands at issue bissu BY STERLING B TAIMAGE A case recently on trial before the register and receiver of the united states land office in this city decision on which is now pending promises when adjudicated to settle definitely and finally the vexing question of the title to land in school sections on which mineral of value is discovered this is the case of M P braffet braff et vs state of utah with the pleasant valley coal company a subsidiary of the utah fuel company being brought in as intervenor the case is in regard to the title to the southeast quarter of section 32 T 12 S R I 1 E situated in willow creek canyon carbon county utah in close proximity to the castle gate no 2 mine of the utah fuel company this school section was sold by the state at public auction in 1902 and subsequently purchased by the pleasant valle valley y coal company the applicant M P braffet mining geologist salt lake city utah has now filed on the southeast quarter of the section under the coal land laws alleging that on account of 0 its mineral c character the land never passed to the state under the school land grant status of the law stated briefly and technically non the law on the subject of school sections containing mineral is substantially as follows under the enabling act the state of utah was granted at the time of its admission to the union sections 2 16 32 and 36 of each township for school purposes nothing was said in the act expressly including or expressly excluding lands containing valuable mineral of any kind contests soon arose between mineral locators and purchasers from the state and the adjudication of these contests finally developed the now recognized principle that mineral lands not being expressly included in the grant were subject to the mineral land laws and did not pass to the state the state was allowed to select other lands of equal area in lieu of the mineral lands that might alight fall within the school sections the land office authorities and the courts in making the that did di decisions relative to mineral lands not pass to the state have referred ilvars for 10 ably to lands known to be valuable their mineral at the date of the grant carried to t the sweet case which was state sta e the supreme court of the united that t was decided squarely on this issue viz the lands in question were known to be bej val 4 la 1896 liable for their coal prior to january and a the date of admission of utah as a state not to the state with consequently did pass t subject suda the school land grant and were not this of to sale by the state the converse dafin 11 it 6 ly principle however has never been reasonable ab e stated although it would appear reason way n to believe that the decisions rendered land dot be interpreted as meaning that be va known at the time of statehood to udel un able for mineral passed to the state the grant and the states title cannot be voided by subsequent mineral discovery this principle not established this principle however has not been stated with in the olson case the final decision was on a compromise basis and did not squarely meet the issue mentioned above the case now on appeal was tried so briefly as to admit but very little of the available competent evidence in fact the decision of the local officials comments on the dearth of testimony along certain lines so the final decision in the case will probably be made on the testimony rather than on the full presentation of all available facts and apparently will not suffice to set at rest all questions relative to the matter in point evolution of land office regulations changes in the land office procedure and regulations complicate the problem still further the old regulations as to the location of coal land required actual discovery of coal on the ground and under the old procedure if interpreted strictly a coal outcrop only a f few ew feet or even a few inches outside the boundary lines of any tract of land could not be construed as having any bearing on that particular tract actual exposure of coal was insisted on these regulations by successive modifications have been virtually abrogated and today the government will receive coal entries on land which is shown by the observable geologic facts to be underlain by the coal horizon so under the old rules the land involved in the braffett case was not coal land under the present rules it is included in the coal land classification and has been appraised by the U S geological survey at about per acre the applicant and the state take widely divergent views as to which classification fi should govern the determination now on hearing claims of applicant the applicant bases his claim to the land on the following premises that the land has been classified as coal land by the united states geological survey and this classification made a matter of record in the land office that being coal land the title never passed to the state of utah and that consequently any title passed by the state is void that the mineral or non mineral character of any tract of school land is an open question until such time as a determination is made under the direction of the secretary of the interior and that the question should be governed by the regulations in force at the time of the determination that the land in question is within the area underlain by the coal bearing horizon as shown by outcrops of coal from one to three miles to the west and south in a sandstone belt that dips under the land in controversy tro versy that the land in question is in close proximity to operating coal mines and that there is reason to believe that the seams operated in these mines extend into and under the land claimed that the geological exposures on which the claim that the coal horizon underlies the land is based have not changed materially since 1896 and that the land should have been known to be valuable for its contained coal at that time claims of state the state or perhaps it would be more accurate to say the intervenor inasmuch as the part the state has taken in the trial has been purely perfunctory leaving the coal company unaided and unhindered to defend the title on which its title rests bases its claim to the land on the following premises that the land was not known to be valuable for its coal content on january 4 1896 that the title of the state attached on this date and cannot be voided by the subsequent discovery of mineral that if the regulations current january 4 1896 had continued in force the land could not be classified as coal land today that changes in the classification rules of the land office cannot be made retroactive that the grant of the school lands in place to the state of utah was both a grant and a conveyance and did not require the submission of proofs before passing of title that the sale by the state was at public auction and did not require the submission of proofs before passing of title that these two facts destroy any parallelism between this case and cases such as the diamondville Dia coal and coke case and the elk hills case where geological inference was admitted as pertinent testimony on account of alleged certain fraudulent features connected with the submission of proofs of the non mineral character of the land as required in obtaining title from the government facts developed at the hearing according to the testimony introduced by the applicant the land in question lies within the book cliffs escarpment on which at various points area are exposures of coal both natural and artificial no exposure of coal exists on the land in question and no exposure of commercial size is on the land in question and no exposure of commercial size is on any outcrop within a mile and a halt half of this tract prom prominent anent sandstone members of the formation certain of which act as key horizons or markers for some of the coal seams can be tr traced aced within and under the land in controversy these sandstone beds show a fair degree of regularity and are uninterrupted by faulting the castle gate no 2 mine is directly to the west of the tract and the kenilworth mine almost directly south both of these mines have extended their workings about a mile toward the tract in question and are pro coal in commercial quantities from lands near the land at issue witnesses for the applicant estimated a maximum depth of coal under this tract of from 1700 to 1800 feet and stated without reservation their belief as based on observations of the geologic structure that section 32 is underlain by merchantable quantities of good quality coal certain of the lands adjacent to the tract at issue are cut by deep ravines which while not extending down to the coal horizon are low enough to furnish in the opinion of the witnesses good places from which slope entries could be driven to cut the coal beds underneath the tract at issue several seams of coal are believed to exist under this land with a total thickness variously estimated at from forty to eighty f feet cross examination of the applicants witnesses developed the fact that only one seam of coal was known to exist in the castle gate district prior to 1905 when the first of the upper seams was discovered and that drilling operations as late as 1912 developed still other seams previously unknown the witnesses admitted that under the coal classification rules in force at the time of statehood the land at issue could vt not have been classified as coal land and that under the first revision of these rules in 1907 by which coal lands were defined as lands containing coal under not more than 1500 feet of cover this tract would still have been classed as non coal one witness admitted that basing his opinion solely on the one seam known to exist in 1896 he would not have advised the expenditure of the money necessary to open up the tract in question but that in the light of later developments as shown by mining operations in nearby lands he considered this tract to be a very valuable piece of coal land an interesting fact an interesting fact was developed in the examination of a witness brought from the office of the state board of land commissioners sio ners to testify to the sale of this section 32 to one laura J bird who it was alleged was war acting as the agent of the pleasant valley coal company examination of the record of the sale showed that this section with other tracts was sold at public auction by the state but that before the issuance of patent the state discovered that coal filings existed on two of the tracts sold along with the land at issue the land office records were brought in and with the land board records showed that the state had held up the issuing of patent to these lands pending adjudication by the land office of the mineral of the tracts on or non mineral character which coal filings had been made and that the commissioner of the general land office and later the secretary of the interior had refused to permit the state to initiate proceedings to quiet title with a view to selecting lieu lands landa iu in the event of the min eral classification being affirmed no question was raised at the time relative to the lands at issue in the present hearing and when the department of the interior refused to entertain a question as to the right of the state to sell and directed the local land office to cancel the coal filings on account of no sufficient showing having been made the state issued certificates of title the pleasant valley coal company soon afterward secured the lands from laura J bird the applicant endeavored to introduce a great deal of testimony relative to alleged fraud in the acquisition of adjacent lands by the pleasant valley coal company the register inquired directly as to whether fraud was alleged in this particular case and on receiving an answer in the negative ruled that any fraud by the company in securing other lands could not be considered in connection with an inquiry as to the states title to the tract at issue it will be remembered that the government some years ago attempted to void the title of the utah fuel company for alleged fraud in connection with the acquisition of certain lands in carbon and sevier counties and that the suits were settled on a compromise basis features of the case at the close of the testimony introduced by the applicant the attorney for the intervenor moved for a nonsuit non suit on the ground that nothing in the testimony tended to prove that the land at issue was known to be valuable for coal at the time the title of the state of utah attached if at all and that furthermore it was proved by the testimony of witnesses introduced by the applicant that the land was of such a character as would unquestionably have been classed as non coal land at the time of the admission of utah as a state during the argument of the motion for a no nonsuit non n suit the attorney for the applicant stated that his understanding of the law was that the grant to the state was analogous to a grant to a railroad in which a determination of the mineral or non mineral character of the land should be made under the direction of the secretary of the interior before the passing of title that the title to school lands never passes to the state until such a determination is made and that in the ease case on trial the determination is being made now and so is subject to the rules in force at present the attorney for the intervenor laid great stress on the claim that changes in departmental rules cannot be made retroactive and pointed out that governmental rules for classification have the effect while they are in force of legally defining ning the terms to which they relate that under the regulations of 1896 and under the change of 1907 the definitive nature of the rules ex crossly excluded the land at issue from the coal land classification at the close of the arguments on the mo tion for a nonsuit non suit the attorney for the intervenor inter ter venor announced rather unexpectedly unexpected lr that regardless of whether the motion was granted or not his side would rest this leaves the facts in the case unquestioned and in the event of an appeal which is almost certain to follow regardless of the decision of the local officers puts the question up to the land office and the department of the interior squarely on the basis of the law in the case unclouded by any conflict of testimony as to the facts moreover it appears possible that the courts may be asked to rule on the matter the department is supreme in its findings of facts but in this case where the facts are not disputed in the least degree it may be that an appeal from the decision of the secretary of the interior to the supreme court of the united states would stand effects of decision the decision when finally rendered by the highest authority should definitely settle the question that has been productive of so much litigation in the past the uncertainty of the law as it stands can be seen from the extremely wide divergence between the theories advanced by the two sides in this case this resulted in the somewhat unusual occurrence of each side admitting all the other claimed as to the facts both sides citing the same cases in support of their contentions at af to the law and both sides claiming to have won beyond a doubt if the theory advanced by the applicant proves to be correct it will cast a cloud over the title to every school section in the state on which a mineral hearing has not been had one of the witnesses stated that in his opinion the alkali content of the mancos underlying the coal horizon would at some future time prove to be of greater value than the coal contained in the beds above below the book cliffs escarpment are thousands of acres including many school sections underlain by a great thickness of the mancos but with absolutely no coal if the dema demand 1 1 d for alkali and the advance of chemical science e nee |