No action was taken by the Congress with respect to this procedure so reported, and it is to be assumed that they acquiesced in it as a sufficient compliance with the purposes of the act and with the intent of Congress.*

Under the facts in this case it would be manifestly unfair and unjust to hold that the failure to comply with the provisions of the statute in the manner referred to renders the contract invalid, and that therefore the Douglas Aircraft Co. cannot now receive payment for the airplanes which, in full compliance on its part with the contract, it has delivered to the Government and which the Government has accepted and continues to use in connection with the national defense. Apparently no one who could have successfully competed was prevented from competing by such failure. Certainly the Fairchild Aircraft Corporation cannot be heard to complain since it was given the opportunity to, and did in fact, enter the competition. Nor would it appear that the failure to require the submission of prices at which the designs as such could be purchased by the Government was material, since a design, as such, would not have been purchased in any event, even if prices therefor had been submitted, because from experience and from the necessities of the occasion the purchase of such a design would have been impracticable and not in the interest of the Government.

I am constrained to hold, therefore, that in this particular case non-compliance with the provisions of the statute in the respect mentioned does not defeat the right of the contractor to demand and receive payment in accordance with the terms of the contract after it has fully and satisfactorily performed the contract and the Government has accepted the benefits thereof. It is my opinion, therefore,

United States, v. Jackson, 280 U. S. 183; United States v. Midwest Oil Co., 236 U. S. 459. In the latter case, which involved an administrative practice reported to Congress, the Supreme Court said at p. 481: "Congress with notice of this practice and of this claim of authority, received the report. Neither at that session nor afterwards did it ever repudiate the action taken or the power claimed. Its silence was acquiescence. Its acquiescence was equivalent to consent to continue the practice until the power was revoked by some subsequent action by Congress."

that the Douglas Aircraft Co. is entitled to be paid in accordance with the terms of the contract.

Respectfully,

HOMER CUMMINGS.

TITLE TO OIL AND GAS DEPOSITS IN FORMER FORT HAYS MILITARY RESERVATION

The doctrine that in the absence of express reservation a grant of the title to land carries with it everything embraced in the land beneath its surface is applicable to grants by the United States. The grant of the abandoned Fort Hays Military Reservation by the United States to the State of Kansas conveyed a fee simple title in praesenti, subject to a condition subsequent; and the ownership thus acquired can be terminated only by a breach of the condition and subsequent enforcement of the forfeiture. The United States has no present interest in the land, and applications filed in the Department of the Interior for permits to prospect for oil and gas deposits were properly rejected.

The SECRETARY OF THE INTERIOR.

APRIL 19, 1937.

MY DEAR MR. SECRETARY: Reference is made to your letter of February 13, 1937, in which you request my opinion upon certain questions considered in your Solicitor's opinion of February 10, 1937, a copy of which accompanies your letter.

The questions with which you are concerned involve the title to oil and gas deposits in certain land comprising the former Fort Hays Military Reservation which was granted to the State of Kansas upon condition by act of Congress of March 28, 1900, 31 Stat. 52. The pertinent part of that act, as amended by act of August 27, 1914, 38 Stat. 710, is as follows:

"That the abandoned Fort Hays Military Reservation and all the improvements thereon, situated in the State of Kansas, be, and the same are hereby, granted to said State upon the conditions that said State shall establish and maintain perpetually thereon, first, an experiment station of the Kansas Agricultural College or a State agricultural college and experimental station; second, a western branch of the

Kansas State Normal School or a State normal school, and that in connection therewith the said reservation shall be used and maintained as a public park: Provided, That said State shall within five years, from and after the passage of this Act, accept this grant, and shall by proper legislative action establish on said reservation an experiment station of the Kansas Agricultural College or a State agricultural college and experimental station, and a western branch of the State Normal School or a State normal school; and whenever the lands shall cease to be used by said State for the purpose herein mentioned the same shall revert to the United States."

It appears that the State of Kansas accepted the grant, and has complied with the terms and conditions imposed by the statute.

In June 1936 three applications were filed in your Department for permits to prospect for oil and gas deposits upon the land in question, the applications being made under section 13 of the act of February 25, 1920, 41 Stat. 441, as amended by the act of August 21, 1935, 49 Stat. 674, which provides for the granting of such permits by the Secretary of the Interior upon lands "wherein such deposits belong to the United States."

The Commissioner of the General Land Office rejected the applications upon the ground that the title to the land was in the State of Kansas, and that the United States had only a reversionary interest therein. On appeal by the applicants, the Department of the Interior affirmed the action of the Commissioner in rejecting the applications. Your Solicitor agrees that the applications were rightly rejected, expressing the opinion that the State of Kansas has title to all minerals in the land and may mine and remove them so long as the United States is unable to establish a "right of reverter". You desire my opinion in the matter.

It is familiar law that a grant of the title to land carries with it everything embraced within the land beneath its surface, and this doctrine is applicable to grants made by the United States as well as to private grants. It has been held in numerous cases that the ownership of minerals in

lands of the United States passes with the title to the lands unless such ownership is expressly reserved. Moore v. Smaw, 17 Cal. 199, 79 Am. Dec. 123; Pacific Coast Mining & Milling Co. v. Spargo, 16 Fed. 348; Shoemaker v. United States, 147 U. S. 282; Dower v. Richards, 151 U. S. 658; Wyoming v. United States, 255 U. S. 489, 501. And oil and natural gas are minerals. Ohio Oil Co. v. Indiana, 177 U. S. 190; Kentucky Coke Co. v. Keystone Gas Co., 296 Fed. 320. The grant here involved does not contain any reservation of title to oil and gas deposits. Apparently the land was not regarded as valuable for minerals, and no suggestion was ever made that it contained oil and gas deposits until 1936. Furthermore, by the act of May 5, 1876, 19 Stat. 52, mineral deposits in the State of Kansas are excluded, generally, from the operation of the laws pertaining to mineral lands. It seems clear, therefore, that the validity of the grant is not affected in any way by any possible mineral character of the land.

There remains to be considered the nature of the title or estate conveyed to the State of Kansas by the above-quoted act of March 28, 1900, as amended. The language of the enactment is that the lands "be, and the same are hereby, granted" to the State upon condition that the State shall use the lands for the purposes stated, and that if it shall cease to use the lands for such purposes they shall revert to the United States. The effect of this language is to convey to the State a fee simple title in praesenti, subject to a condition subsequent. The ownership thus acquired by the State can be terminated only by a breach of the condition on its part and the subsequent enforcement of the forfeiture by the United States. Mere breach of a condition subsequent does not work a forfeiture, and so long as the United States does not establish a forfeiture for condition broken, the State of Kansas has the same rights and powers relative to the land as it would have if the condition did not exist. Furthermore, only the United States may take advantage of a breach if one should occur.

These principles are firmly established by the leading case of Schulenberg v. Harriman, 21 Wall. 44, in which the grant

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involved (from the United States to the State of Wisconsin) is similar in all essential respects to that now under consideration. See, also: Opinion of Attorney General to Secretary of War, March 24, 1937 (39 Op. 3); Vail v. Long Island R. Co., 106 N. Y. 283, 12 N. E. 607; Methodist Protestant Church v. Young, 130 N. C. 8, 40 S. E. 691; Leavenworth, etc., R. R. Co. v. United States, 92 U. S. 733; Lake Superior &c. Co. v. Cunningham, 155 U. S. 354; New York Indians v. United States, 170 U. S. 1.

In the case last cited, the Supreme Court in considering the meaning of a granting clause like the one under consideration stated (p. 17):

"In the cases arising under the railroad land grants, of which Schulenberg v. Harriman, 21 Wall. 44, is a leading one, the language of the granting clause was in the present tense, 'there be, and hereby is, granted, etc.; and it has always been held that these were grants in praesenti, * The doctrine of this case has been affirmed so many times that the question is no longer open to argument here."

*

It follows from what has been said that the United States has no present interest in the land in question and that the applications for permits to prospect for oil and gas deposits therein were properly rejected by your Department.

Whether the use of the land in this case by the State of Kansas for the mining of oil and gas would conflict with its use for the educational and public park purposes specified in the grant so as to justify the United States in declaring a forfeiture is a question of fact for administrative determination if necessity therefor should arise.

Respectfully,

HOMER CUMMINGS.

TRADE AGREEMENTS ACT-THE WORD "EXISTING" DEFINED The word "existing" as used in the provisions of the Trade Agreements Act quoted herein, means existing at the time a given trade agreement is concluded; but it does not apply to duties proclaimed under the act, being applicable only to "basic" duties referred to herein.