The opinion
SLOAN, J.,
dissenting.
The majority ignore that it is public land that was conveyed by a deed from the United States which contained the reservation in question; that there is a hundred years of Congressional policy and intent regarding such lands and that the law is emphatic that a grant of the federal public lands must be clearly expressed, never implied. This is not a case for the application of the rule ‘ “that intent commonly prevalent among conveyors” ’ must be determined. United States v. Union Pacific R. Co., 1957, 353 US 112 , 77 S Ct 685 , 1 Led2d 693; Northern P. R. Co. v. Soderberg, 1903, 188 US 526 , 23 S Ct 365 , 47 Led 575; Dunbar Lime Co. v. Utah-Idaho Sugar Co., (CCA 8th Cir 1926) 17 F2d 351. The cited authorities establish that the reservation in the instant deed was intended to include the sand and gravel removed from this particular land.
It appears that the State Department of Geology and Mineral Industries defines sand and gravel as a mineral substance as did the legislature by definition in OES 516.010. Although the latter authorities are not, perhaps, compelling, their significance should be considered. By the definition of mineral found in 1 Bindley, Mines (3d ed 1941), § 98, the classification by the state department would be important, particularly *225 if such, a classification is recognized by the trade or industry, as it likely is.
In addition, Loney v. Scott, 1910, 57 Or 378 , 112 P 172 , 32 LRA(NS) 466, correctly states the law that the sand and gravel was mineral.
By refusing to heed the authorities cited — to accept or reject them — and to respond with indifference to the Congressional policy and intent in respect to a grant of public lands can very well warp the development of any cohesive and consistent mineral law in the state.
The judgment should be affirmed.