Chapman, 101 U. S. 755, and cases cited in the opinion; Hamblin v. Western Land Company, 147 U. S. 531, and cases cited in the opinion. It has also been held that such a withdrawal is effective against claims arising under subsequent railroad land grants. St. Paul & Pacific Railroad v. Northern Pacific Railroad, 139 U. S. 1, 17, 18; Wisconsin Central Railroad v. Forsythe, 159 U. S. 46, 54; Spencer v. McDougal, 159 U. S. 62.

All that we here hold is, that when a withdrawal of lands within indemnity limits is made in aid of an earlier land grant and made prior to the filing of the map of definite location by a company having a later grant-the latter having such words of exception and limitation as are found in the grant to the plaintiff-it operates to except the withdrawn lands from the scope of such later grant." The doctrines of these cases were recognized in the recent case of Northern Pacific Railway v. Lacey, 174 U. S. 622.

In view of these decisions it is clear that as the lands in dispute were, at the date of the grant to the Northern Pacific Railroad Company, withdrawn, of record, for the benefit of the Lake Superior and Mississippi Railroad, under a prior grant, they were not public lands within the meaning of the later grant, and did not come under it, when or because it was subsequently ascertained that they were without the line of the definite location of the road of the Lake Superior Railroad Company, and within the place limits of the Northern Pacific as defined by its map of definite location. When freed from the operation of the accepted map of general route filed by the Lake Superior and Mississippi Railroad Company, they did not come under the operation of the later grant to the Northern Pacific Railroad, but became a part of the public lands constituting the public domain and subject only to be disposed of under the general laws relating to the public lands. If, by the act of July 2, 1864, or before the line of the Northern Pacific Railroad was definitely located, Congress had, in terms, appropriated, for the benefit of that road, any of the lands embraced in the general route of the

other road, a different question would be presented. But it did not do so. It only granted for the benefit of the Northern Pacific Railroad lands which then, July 2, 1864, were public lands, and no lands were public lands, within the meaning of Congress, which, at that time, were withdrawn by the Land Department; that is, reserved for the purposes of a prior grant although such reservation turned out to have been a mistake.

The suggestion is made in this connection that the order of the Land Department was too uncertain and indefinite to have any legal force, because the direction to the local land office was to suspend from preëmption, settlement and sale "a body of land about twenty miles in width." We deem this suggestion without merit. The order for withdrawal referred to the diagram or map showing the road's probable route; and it is agreed that the lands in dispute are coterminous and within ten miles of the line of the general route of the Lake Superior and Mississippi Railroad, as defined by the diagram or map filed. The map, however indefinite, was intended to cover these lands. It sufficiently indicated these lands and the probable route of the road, and that was enough.

Many cases are called to our attention which are supposed to militate against the views we have here expressed. We have examined those referred to and do not perceive that any one of them decided the particular question now before us. No one of them holds that a grant, in præsenti, of public lands, with the ordinary reservations, embraces lands which, at the date of such grant, are under the operation of a formal order of the Land Department, of record, withdrawing them for the benefit of a prior grant in the event they should be needed for the purposes of such grant. Nor do any of them hold that the subsequent cancellation of such withdrawal order had the effect to bring them under the operation of a later grant of public lands. It is said that United States v. Oregon & Cal.. R. R. Co., 176 U. S. 28, and Wilcox v. Eastern Oregon Co., 176 U. S. 51, should be regarded as controlling and decisive of this case for the appellant. We do not think so. The

principal point decided in those cases was that nothing in the act of 1864 prevented Congress by legislation from appropriating for the benefit of other railroad corporations lands that might be or were embraced within the general route of the Northern Pacific Railroad; and this for the reason that an accepted map of general route only gave the company filing it an inchoate right and did not pass title to specific sections until they were identified by a definite location of the road. Besides, in neither case was there in force, at the date of the later grant, an accepted, effective order of the Land Department withdrawing the lands there in dispute pursuant to an accepted map of the general route of the Northern Pacific Railroad. If there had been an order of that kind, it would still have been competent for Congress to dispose of the lands, within such general route, as it saw proper, at any time prior to the definite location of the road under the later grant. In conformity with prior decisions it was so adjudged in the two cases above cited. Those cases did not adjudge that a grant of "public land," with the usual reservations, embraced any lands which, at the time, were formally withdrawn by the Land Department from preëmption, settlement or sale, for the benefit of a prior grant.

We are of opinion that the Circuit Court and the Circuit Court of Appeals correctly interpreted the decisions of this court and did not err as to the law of the case. The judgment below must, therefore, be affirmed.

It is so ordered.

MONTANA MINING COMPANY, LIMITED, v. ST. LOUIS MINING AND MILLING COMPANY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT.

No. 402. Argued December 10, 11, 1906.-Decided January 14, 1907.

Where there is a question whether the jurisdiction of the Circuit Court depended entirely on diverse citizenship making the judgment of the Circuit Court of Appeals final, but a petition for writ of certiorari is pending, and the writ of error had been allowed prior to the filing of the record in the first instance, and the case is of such importance as to demand examination by this court, the question of jurisdiction of the Circuit Court need not be determined but the case reviewed on certiorari. In this case a bond to convey, and a conveyance, made thereafter in pursuance thereof, conveying mining lands in Montana, the title to which was in dispute between the grantor and grantee (owners of adjoining claims), together with all the mineral therein and all the dips, spurs, angles, etc., were construed as not simply locating a boundary between the two claims, leaving all surface rights to be determined by the ordinary rules recognized in mining districts of Montana and enforced by statutes of Congress, but as conveying all mineral below the surface including that in a vein therein which apexed in the unconveyed land of the grantor. The common law has been kept steadily in force in Montana and under it a deed of real estate conveys all beneath the surface unless there be words of exception or limitation.

A conveyance of mineral land adjoining land of the grantor which grants all the mineral beneath the surface will not be construed as not granting the mineral in a vein apexing in the grantor's unconveyed land because such vein may extend across the conveyed land to other land belonging to the grantor.

Quare whether there would not be a reserved right in the grantor to pass through the conveyed land to reach the further portion of such a vein. A contract and conveyance of lands and subsurface minerals made in settlement of a dispute will be construed in the light of facts known at the time to the parties rather than of possibilities of future discoveries.

THE litigation between these parties has been protracted through a series of years. A brief history will help to an understanding of the present questions. Prior to 1884 Charles

Mayger had located the St. Louis lode claim in Lewis and Clarke County, Montana Territory, and William Robinson and others had located, adjoining thereto, the Nine Hour lode claim. These claims conflicted. Mayger made application for a patent. Thereupon adverse proceedings were commenced by Robinson and his associates against Mayger in the District Court of the Third Judicial District of Montana. For the purpose of settling and compromising that action on March 7, 1884, a bond was executed by Mayger to the other parties, in which he agreed to proceed as rapidly as possible to obtain a patent, and then to execute and deliver to Robinson a good and sufficient deed of conveyance of a tract described as "comprising a part of two certain quartz lode mining claims, known as the St. Louis lode claim and the Nine Hour lode claim, and particularly described as follows, to wit." Then follows a description of what is known as the compromise ground, a tract including an area of 12,844.5 square feet, "together with all the mineral therein contained." Mayger proceeded to obtain a patent for the St. Louis claim, including the compromise ground, as did also Robinson and his associates, a patent to the Nine Hour claim, omitting the compromise ground. Thereafter the plaintiff in error acquired the interest of Robinson and his associates and the defendant in error the interest of Mayger. The former company demanded a conveyance of the compromise ground in accordance with the terms of the bond executed by Mayger, which, being refused, suit was brought in a District Court of the State, which rendered a decree in its favor. That decree having been affirmed by the Supreme Court of the State, the St. Louis company brought the case to this court, and on October 31, 1898, the judgment of the Supreme Court of Montana was affirmed. 171 U. S. 650. In pursuance of the decree the St. Louis company deeded the tract described in the bond, giving its boundaries, the number of square feet contained therein, and adding, "together with all the mineral therein contained. Together with all the dips, spurs and angles,