23 IBLA 232

Decided Janary 9, 1976

Appeal from the rejection of an application for patent to public land pursuant to the Transportation Act of 1940.

Reversed and remanded.

1. Railroad Grant Lands

Legal title, although not record title, to granted lands passes to a railroad under a railroad land grant act upon the filing of a map of definite location of the railroad and such title is subject to divestiture by adverse possession under state laws prior to the issuance of patent to the granted lands.

2. Railroad Grant Lands

Where land within the primary limits of a railroad land grant is excluded or reserved by the terms of the granting act, the adverse possession of one who asserts only that he has satisfied the statute of limitations of a particular State will not divest the United States of its title or invest the adverse possessor with any interest in the land.

3. Railroad Grant Lands

Where land within the primary limits of a railroad land grant is not excluded or

reserved by the terms of the granting act, the statute operates to vest title in the railroad at the time the railroad qualifies to receive it. It is a grant in praesenti, regardless of whether the United States has issued its patent or certificate.

4. Mineral Lands: Generally-Railroad Grant Lands

Lands known to be mineral in character (except for coal or iron) at the time of definite location of a railroad are excluded from the grant of place lands to the railroad even though the lands may later lose their mineral character.

5. Mineral Lands: Determination of Character of-Railroad Grant Lands

The period for determination by the Department of the Interior whether public land included within the primary limits of a legislative grant-in-aid of the construction of a railroad which excepts mineral land is mineral in character extends to the time of issuance of patent to the railroad company.

6. Act of Sept. 18, 1940 (Transportation Act of 1940, 49 U.S.C. § 65 (b) (1970))-Conveyances: Generally— Railroad Grant Lands-Words and Phrases

Where the purchaser from the railroad of unpatented land believed at the time of his purchase that the land was min

83 I.D. No. 1