Rev. Stats., sec. 2386. "Where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof; but nothing contained in this section shall be so construed as to recognize any color of title in possessors for mining purposes as against the United States."

Sec. 2392. "No title shall be acquired under the foregoing provisions of this chapter, to any mine of gold, silver, cinnabar, or copper; or to any valid mining claim or possession held under existing laws." 1

Mineral deposits within town sites are therefore open to exploration and purchase in the same manner as elsewhere. In other words, mineral lands are reserved out of the grant of a town site. By patents of town sites they do not pass. And it only remains to determine what are mineral lands within the meaning of this reservation. These are valid mining claims or possessions under existing laws, and also "any mine" of the enumerated metals. This includes all land known at the time of the grant to be mineral land, i. e., available and valuable for its mines of gold, silver, cinnabar, copper, or lead. If mineral is not found in the land in sufficient quantities to justify the effort, or to make it profitable, to extract it, the land is not mineral. The land must also be known to be thus valuable at the time of the grant. A subsequent discovery of rich deposits will not bring it within the reservation; nor will its previous mineral character, if it has been worked out and abandoned.

It follows, therefore, that a town-site patent cannot divest the title of any locator of an existing mining claim within its boundaries, the location of which was made prior to the date of the patent;2 nor can a previous appropriation and use of land as a town site defeat a patent issued to a subsequent locator of the ground as a mining claim; nor can a town-site patent pass title to land which is claimed under a subsequent patent as mining ground, where any step toward acquiring title as mining ground was taken before the patent for a town site issued, unless it can be shown that at that time the land was not known to be mineral. But a

1 While the act of March 3, 1891, repeals these sections, it re-enacts them in substance.

2 See Montana Pol. Code 1895, sec. 5112.

patent for mineral land, the title to which was initiated after the date of the town-site patent, will not prevail over the latter unless the land was known to be mineral at the date of the town-site entry. The practice of the Land Office has been to allow townsite entries on land returned as mineral, and to refuse to decide conflicting claims of mineral claimants, on the ground that the question of rights was one of priority of occupation which should be decided by the courts. Neither the town-site patent, therefore, nor a subsequent mineral one, was conclusive of the character of the land, and did not preclude evidence of its character at the date of the town-site entry.

By the decisions of the Land Department a town-site patent is inoperative as to all land known to be valuable for its minerals. at the time of entry, or discovered to be such prior to occupation or improvement under the town-site laws. The Department hitherto has refused to issue a mineral patent for land within the limits of a previous town-site patent, but first requires proceedings for the vacation of the latter patent to the extent of the known mineral deposits. This practice, however, it would seem, has now been altered by the act of March 3, 1891, sec. 16, 1 Supp. Rev. Stats. 945, the terms of which are as follows:

"Town-site entries may be made by incorporated towns and cities on the mineral lands of the United States, but no title shall be acquired by such towns or cities to any vein of gold, silver, cinnabar, copper, or lead, or to any valid mining claim or possession held under existing law.

"When mineral veins are possessed within the limits of an incorporated town or city, and such possession is recognized by local authority or by the laws of the United States, the title to town lots shall be subject to such recognized possession and the necessary use thereof and when entry has been made or patent issued for such town sites to such incorporated town or city, the possessor of such mineral vein may enter and receive patent for such mineral vein, and the surface ground appertaining thereto : Provided, that no entry shall be made by such mineral-vein claimant for surface ground where the owner or occupier of the surface ground shall have had possession of the same before the inception of the title of the mineral-vein applicant."

This statute has not yet been the subject of judicial construction. It repeals Rev. Stats. 2386, 2392, re-enacting those sections

in substance, and making definite provision for the patenting of mineral lands within the lines of a town-site patent.

An exception in the mining patent of town property rights upon the surface and improvements thereon cannot avail the town lot owner. The exception is a nullity, as its insertion is unauthorized. It was the former practice of the Land Office to insert such a reservation in patents, but this has been discontinued, on the authority of Deffeback v. Hawke.

In California it has been held that in a town-site patent issued prior to 1872 only the ledge and not the surface was excepted from the grant.

In determining the question of the mineral character of the land, the burden of proof is on the party asserting it. This is subject to an exception in the case of a mining patent, which prima facie establishes the fact that the land was known at the inception of the title to contain minerals. The existence of an invalid location will not, however, establish this fact. And a valid location, if subsequently abandoned, will be insufficient to do so though the locator maintained an actual possession of the machinery of mining until the date of the town-site patent. His claim is not a valid claim or possession under existing laws.

The right of way in the streets of a city, which existed at the time of a location of a mining claim covering the same ground, is protected by Rev. Stats. 2477, which is a grant that cannot be divested by the subsequent patent of the mining claim.

Steel v. Smelting Co., 106, 447 (1882). Field, J.: United States. "Land embraced within a town site on the public domain, when unoccupied, is not exempt from location and sale for mining purposes; its exemption is only from settlement and sale under the pre-emption laws of the United States. Some of the most valuable mines in the country are within the limits of incorporated cities, which have grown on what was, on its first settlement, part of the public domain; and many of such mines were located and patented after a regular municipal government had been established."

"The acts of Congress relating to town sites recognize the possession of mining claims within their limits, and forbid the acquisition of any mine of gold, silver, cinnabar, or copper within them under proceedings by which title to other lands there situated is secured, thus leaving the mineral deposits within town sites open to exploration, and the land in which they are found, to occupation and purchase in the same manner as such deposits are elsewhere explored and possessed and the lands containing them are acquired. Rev. Stats., secs. 2386, 2392. Whenever, therefore, mines are found in lands belong

ing to the United States, whether within or without town sites, they may be claimed and worked, provided existing rights of others, from prior occupation, are not interfered with. Whether there are rights thus interfered with which should preclude the location of the miner and the issue of a patent to him or his successor in interest is, when not subjected under the law of Congress to the local tribunals, a matter properly cognizable by the Land Department, when application is made to it for a patent." And a patent having issued to the mine, it cannot be collaterally attacked by one claiming title under the townsite grant.

:

Deffeback v. Hawke, 115, 392 (1885). Field, J. "The principal question presented by the pleadings for our consideration, is whether, upon the public domain, title to mineral land can be acquired under the laws of Congress relating to town sites. The plaintiff asserts title to mineral land under a patent of the United States founded upon an entry by him under the laws of Congress for the sale of mineral lands. The defendant, not having the legal title, claims a better right to the premises by virtue of a previous occupation of them by his grantor as a lot on a portion of the public lands appropriated and used as a town site, that is, settled upon for purposes of trade and business, and not for agriculture, and laid out into streets, lots, blocks, and alleys for that purpose.

"In several acts of Congress relating to the public lands of the United States passed before July, 1866, lands which contained minerals were reserved from sale or other disposition. Thus the preemption act of 1841, 5 Stat. 453, excepts from pre-emption and sale 'lands on which are situated any known salines or mines.' Ib. 455, ch. 16, § 10; and the act of 1862, extending to California the privilege of settlement on surveyed lands, previously authorized in certain States and Territories, contains a clause declaring that the provisions of the act shall not be held to authorize pre-emption and settlement of mineral lands.' 12 Stat. 409, 410, ch. 86, § 7. Similar exceptions were made in grants to different States and in grants to aid in the construction of railroads. Thus in the grant to California of ten sections of land, for the purpose of erecting the public buildings of that State, there is a proviso that none of said selections shall be made of mineral lands.' 10 Stat. 244, 248, ch. 145, § 13. And in the grants to the Union Pacific Railroad, and its associated companies, to aid in the building of the transcontinental railroad and branches, there is a proviso declaring that all mineral lands other than coal or iron shall be excepted from them. 12 Stat. 489, ch. 120, § 3; 13 Stat. 356, 358, ch. 216, § 4. A similar exception is made in grants for universities and schools; and in the law allowing homesteads to be selected, it is enacted that mineral lands shall not be liable to entry and settlement for that purpose.

66

By the act of July 26, 1866, the policy of reserving mineral land from sale or grant was changed. That act declared that the mineral lands of the public domain were free and open to exploration and occupation by all citizens of the United States, etc. . . . The act of May 10, 1872, to promote the development of the mining resources of the United States, repealed several sections of the act of 1866, and,

6

among others, the first section, but enacted in place of it a provision declaring that all valuable mineral deposits' in lands belonging to the United States, both surveyed and unsurveyed, were 'free and open to exploration and purchase, and the lands in which they are found to occupation and purchase,' subject to the conditions named in the original act. ... By the act of February 18, 1873, mineral lands in the States of Michigan, Wisconsin, and Minnesota were excepted from the act of May 10, 1872, and those lands were declared to be free and open to exploration and purchase according to legal subdivisions in like manner as before. 17 Stat. 465, ch. 159. The provisions of the act of 1872, with the exceptions made by the act of 1873, were carried into the Revised Statutes, which declare the statute law of the United States upon the subjects to which they relate, as it existed on the 1st of December, 1873. Rev. Stats. 2345. All other provisions contained in the act of which any portion is embraced in this revision are in express language repealed.

"Turning to that portion of these statutes treating of mineral lands and mining resources which is contained in chapter six of title xxxii., we find that its first section declares that in all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.' § 2318. Title, therefore, to lands known at the time to be valuable for their minerals, could only have been acquired after December 1, 1873, under provisions specially authorizing their sale as found in these statutes, except in the States of Michigan, Wisconsin, and Minnesota, and after May 5, 1876, in the States of Missouri and Kansas. By the act of Congress of the latter date, deposits of coal, iron, lead, or other mineral' in Missouri and Kansas were excluded from the operation of the act of May 10, 1872, that is, from such provisions of that act as were re-enacted in the Revised Statutes. 19 Stat. 52, ch. 91. In those portions of the Revised Statutes which relate to pre-emption and to homestead entries the clauses from the original acts excepting mining lands are retained. §§ 2258, 2302.

"If now we turn to the laws relating to town sites on the public lands, and the provisions authorizing the sale of lands under them, or to the entry of town sites for the benefit of their occupants, as contained in the Revised Statutes, we shall find a similar exception from sale or entry under them of mineral lands. Title xxxii. of the Revised Statutes contains the law as to the public lands. Chapter eight of that title relates to the reservation and sale of town sites on the public lands. . . . In one section it declares that where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession, and the necessary use thereof,' with a reservation also that nothing in the section shall be construed to recognize any color of title in possessors for mining purposes as against the United States. § 2386. In another section, near the conclusion of the chapter and following all the provisions affecting the question before us, it declares that no title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws.' § 2392.