Basey, 20 Wall., 679, appealed from the supreme court of this territory to that court, says: "By the organic act of the territory the district courts are invested with chancery and common law jurisdiction. The two jurisdictions are exercised by the same court, and under the legislation of the territory the modes of procedure, up to the trial or hearing, are the same, whether a legal or equitable remedy is sought. The suitor, whatever relief he may ask, is required to state, in ordinary and concise language,' the facts of his case upon which he invokes the judgment of the court. But the consideration which the court will give to the questions raised by the pleadings when the case is called for trial or hearing, whether it will submit them to a jury, or pass upon them without any such intervention, must depend upon the jurisdiction which is to be exercised. If the remedy sought be a legal one a jury is essential, unless waived by the stipulation of the parties; but if the remedy sought be equitable, the court is not bound to call a jury, and if it does call one, it is only for the purpose of enlightening its conscience and not to control its judgment. The decree which it must render upon the law and the facts must proceed from its own judgment respecting them, and not from the judgment of others. * * * The formal distinctions in the pleadings and modes of procedure are abolished; but the essential distinction between law and equity is not changed. The relief which the law affords must still be administered through the intervention of a jury, unless a jury be waived; the relief which equity affords must still be applied by the court itself, and all information presented to guide its action, whether obtained through masters' reports or findings of a jury, is merely advisory. Ordinarily, where there has been an examination before a jury of a disputed fact, and a special finding made, the court will follow it. But whether it does so or not must depend upon the question, whether it is satisfied with the verdict? This discretion to disregard the findings of the jury may undoubtedly be qualified by statute; but we do not find anything in the statute of Montana regulating proceedings in civil cases which affects this discretion. That statute is substantially a copy of the statute of California, as it existed in 1851, and it was frequently held by the supreme court of that state, that the provision in that act requiring issues of fact to be tried by a jury, unless a jury was waived by the parties, did not require the court below to regard as conclusive the findings of a jury in an equity case, even though no application to vacate the findings was made by the parties, if in its judgment they were not supported by the evidence:" Still v. Saunders, 8 Cal., 287; Goode v. Smith, 13 Id., 81; Duff v. Fisher, 15 Id., 376; Weber v. Marshall, 19 Id., 447.

The provision of our code of civil procedure is the same as that of California and provides that in all cases issues of fact must be tried by a jury: Rev. stats., 183, sec. 251; but the decision of the supreme court of the United States since the act of congress of 1874, validating and confirming the codes and rules of practice in

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the territories which prescribe a uniform course of proceeding in all cases, whether legal or equitable, and the decision of our own supreme court before that act, under a code containing the same provision as to the trial of questions of fact, ought to be conclusive upon the question that an equity case should be tried by the court, and that it is discretionary with the court whether special issues be submitted to a jury to aid the court in arriving at the facts, and that such special issues and findings may be adopted or rejected by the court, as the evidence may require.

2. Was it necessary for the court to have found that the defendant knew of the existence of the Pay Streak location and claim, at, or before the date of his application for a patent to placer ground, in order to have rendered a judgment in favor of respondents?

The statute of the United States providing the manner and mode of proceeding to obtain a placer patent to ground that does or does not contain within its boundaries a lode mining claim, is as follows: Rev. stats., U. S., sec. 2,333, "When the same person, associa tion or corporation is in possession of a placer claim, and also, a vein or lode, included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs and proceedings; and where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim, which does not include an application for the vein or fode claim, shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral or other deposits within the boundaries thereof."

Section 2,320 defines the extent of a lode mining claim, and provides that, unless controlled by the customs and regulations of the miners, or the local laws, such lode claim may extend one thousand five hundred feet in length along the vein or lode, and three hundred feet on each side of the middle of the vein at the surface. This is the kind of a lode mining claim referred to in the section above quoted, and which, if known to exist within the boundaries of a placer claim for which application is being made for a patent, and which does not include an application for such vein or lode claim, shall be construed as a conclusive declaration that the placer claimant has no right to the possession of the vein or lode claim.

There is a vast difference between a vein or lode and a vein or lode mining claim. A vein or lode may be entirely concealed be

neath the earth's surface, and unknown to exist, while a lode mining claim is on the surface, exposed to view, designated by stakes and monuments, so that its boundaries may be readily traced, besides a notice posted on the claim and a record of the location in the proper county. By the terms of the statute, it is a vein or lode in a placer claim, the existence of which is not known, that the placer patent carries with it. There is no provision in the statute which authorizes the placer claimant to acquire title to a lode mining claim by virtue of his placer patent. If the lode mining claim is known to exist, the placer applicant must also apply for a patent for such lode mining claim. He acquires no title to the lode claim by virtue of his placer patent; and if he makes no application for the lode claim, he is conclusively presumed to have no right to or interest in it. The theory of the statute is, that a vein or lode of quartz may exist in placer ground that is unknown, because it may be concealed beneath the surface, and afterwards uncovered by working the placer claim; but no such presumptions can arise as to a lode mining claim, which must exist on the surface, and be distinctly marked and bounded, so that the same may be designated and distinguished from all other property. A lode mining claim is a definite, distinct and certain tract or parcel of land, the same as is a farm or a town lot, and a location according to law, and the record thereof, is the title by which it is held and owned. The location of a quartz lode mining claim, perfected according to law, creates an existing outstanding grant of the exclusive right to the possession and enjoyment of all the surface ground included within the boundaries of the claim; and such a location is just as much a withdrawal from the public domain, of the right to the possession of the property located, as is the fee withdrawn by a valid grant from the United States under the authority of law, or the possession by a valid and subsisting homestead or pre-emption entry. Such a location when perfected has the effect of a grant by the United States of the right of present and exclusive possession: Belk v. Meagher, 104 U. S., 279.

In the case of the Silver Bow Mining Co. v. William A. Clarke et al., 5 West Coast Rep., 403, decided at the present term, this court used the following language: "Having discovered a vein or lode and made a location thereon according to law, the locator then becomes entitled to the exclusive right to the possession and enjoyment of all the surface ground included within the lines of his location. This is the express provision of the statute, section 2,322, and is in harmony with section 2,319, which declares that the ground in which the mineral deposit may be found shall be open to occupation and purchase. The right to acquire the full title which attaches to, and accompanies every valid location of a mining claim, ought to be, and is, followed by the right to the exclusive possession and enjoyment of the soil of such claim. * * * This statute is a pre-emption law, and by the location of a mining claim under it, the grounds included within the boundaries of the location are just as much

withdrawn from the public domain as the fee is by a valid grant from the United States under the authority of law, or the possession under a valid and subsisting homestead or pre-emption entry. This statute is an offer to sell the public mineral lands by the owner thereof, and the locator, by making a location thereon, accepts the offer, thereby closing the contract of purchase, and the purchaser becomes entitled to a conveyance when he has complied with the terms of the contract. *** If the location of a mining claim has the effect of a grant by the United States to the locator, of the right to the present and exclusive possession of the ground located, it follows that there could not be a like grant of the same property to any other person."

The land included within the boundaries of the Pay Streak mining claim having been thus sold and withdrawn from the public mineral lands, by what law or authority is it included in a placer patent and sold again to some other person? If the government issues a patent for lands that have been previously sold or reserved for sale, the patent is so far void: Steel v. Smelting Co., 106 U. S., 450; Patterson v. Winn, 11 Wheat., 380; New Orleans v. U. S., 10 Peters, 662; Reichart v. Felps, 6 Wall., 160; Best v. Polk, 18 Wall., 112; Morton v. Nebraska, 21 Wall., 660; Stoddard v. Chambers, 2 How., 284; Polk's Lessee v. Wendell, 9 Cranch, 99; Polk's Lessee v. Wendell, 5 Wheat., 293; U. S. v. Tichner, 12 Fed. Rep., 415; Smelting Co. v. Kemp, 104 U. S., 664; Capp's Mineral Land Laws, 282.

And whether the elder title or grant is "known" to the subsequent claimant is wholly immaterial. A lode claim location being perfected according to law and recorded in the proper county as the law directs, and not abandoned or forfeited in any way, is a title that the locator, or his grantees in good faith, may hold and defend against every other person or claimant by a subsequent acquired title. His right to the ground located is property which he may dispose of at pleasure. He holds it by virtue of his location, which becomes a contract of sale and purchase between the locator and his grantees and the government. This is his title, the means by which he holds possession and the right of possession to his ground; and, when thus held, the ground cannot be relocated, claimed or taken from him in any way, so long as he complies with the law. A mining claim thus located, owned and held, is "known" to exist, within the meaning of the statute. It is "known" as any other title is, by the record, and better, for the location is so distinctly marked and designated on the ground that its boundaries may be readily traced. The law presumes that such a title is "known" to exist, and whether it is known or not, no other person can acquire any title or interest in the property so located, granted and sold. The government cannot sell to a placer claimant property that it has already sold to a quartz locator, as a lode mining claim. And whether the placer claimant "knows" that the government has sold the property to another, is immaterial. The title of the purchaser cannot depend on his knowledge. The purchaser holds by virtue of a grant from

the government, and if this grant is evidenced by a perfected location, any other person attempting to obtain title to the same ground is presumed to "know" of the prior grant. A patent to one person for a portion of the mineral lands of the United States already sold by the government to another person, is void; and the knowledge of the patentee does not affect the matter one way or another. And so, whether the appellant knew of the existence of the Pay Streak mining claim or not, he could not acquire any title to such mining claim by virtue of his placer patent. The government could not convey to him what it had already sold to the respondents and their grantors. It is claimed that the reservations in the placer patent of all quartz leads known to exist therein are void. This patent is not before us; but if it contains these reservations, it shows that the land department did not inquire and adjudicate upon the question as to the existence of lode mining claims within the boundaries of the placer patent. If it had, it would have excepted them from the grant by specific boundaries and by name. But whether the patent makes such exception or not is immaterial. The grant of the placer patent only attaches to such of the public mineral lands as the government had the right to sell, and had not sold or withdrawn from sale before. Lode mining claims are excepted from the placer patent by the statute, and it is impossible for the land department to grant the title to such claims in a placer patent. It is held by all the authorities that the action of the land department in issuing a patent for the public lands, subject to sale by pre-emption or otherwise, when acting within the scope of its authority, is conclusive upon the legal title, but whether the land so conveyed was public land and subject to sale, or, in other words, what is conveyed by the patent, under the statute by which it was issued, may be inquired into even in an action at law: Iron Silver Mining Co. v. Sullivan et al., 16 Fed. Rep., 829; 108 U. S., 550. "These presumptions as to the conclusiveness of a patent and the title it conveys are confined to matters over which the land department has jurisdiction. It must act within the scope of its authority, and as authorized by law. If it goes beyond its jurisdiction, the patent would be so far void; and this may be shown in an action at law:" Silver Bow Mining and M. Co. v. Clarke, supra. "Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would, in that event be like that of any other special tribunal not having jurisdiction of a case which it assumed to decide. Matters of this kind disclosing a want