true state of the title, but he must also fix a fraudulent intent or culpable negligence on the applicant and prove that he was induced to remain in possession on account of the applicant's acquiescence, and that he will be injured by allowing his possession to be denied. But these facts are necessary to be proven in every case of fraud.1 If the applicant for a patent deeds his interest in the land sought to be patented by a deed containing covenants of title, he is afterwards estopped from dispossessing his grantee; but where he only attempts to convey a possessory right, and covenants for a future estate in the land, conditioned on his acquisition of the same, he would not be estopped from setting up a future title, unless he acquired it direct from the government, and this rule would apply whether the patent had been applied for or not.2 § 67. Mining claim on school lands. Congress, at an early day, granted certain lands for school purposes to the different Western States,3 reserving to the government the right to grant other lands in lieu thereof, in case such lands should subsequently be found rich in mineral deposits. The courts, in construing such grants, have held, that the State, in accepting the land granted, consented to the reservation by Congress of the mineral lands, and took the grant subject to all the conditions and reservations annexed by Congress.5 The government would have the right to dispose of such land, or change the terms of the grant, any time before a survey, and disposal by the State, and a government patent to a mining claim on school land, loca 1 Wade Amer. Min. Law, p. 95; Chapman v. Fay Long, 4 Saw. (U. S.) 28. But see Atty.-Gen. v. Smith, 31 Mich. 359. 2 Ante, idem. But see, Mor. Min. Rts. (10 Ed.) 406. 3 14 U. S. Sta. 85-6, Sec. 5 (approved July 14, 1866). Ante, idem. 5 Higgins v. Houghton, 25 Cal. 255; Copp's U. S. Min. Dec., pp. 105-109; Doll v. Meador, 16 Cal. 296; Van Valkenburg v. McCloud, 21 Cal. 330; Foley v. Harrison, 15 How. 447. ted prior to the survey of such land, would relate back to the original location and pass the title to such land as against an intervening patent from the State.1 But where land is located under a State school warrant and a patent is issued, after a full compliance with the law, the patent is sufficient evidence that the land is not mineral land, within the meaning of the section reserving such land from sale, and the fact that mineral is subsequently discovered on the land conveyed, in sufficient quantities to justify the patentee to work the same, would not justify the court in finding such land to be mineral land, or in interfering with the vested rights acquired by the patent, for the fact whether the land contained mineral or not, should have been ascertained before the same was offered for sale.2 § 68. Contests between mining and town-site patentees. In conveyances of land under town-site patents the government does not convey any right or interest in the mines or minerals located upon the land granted, and as this exception is one required by law, it is impossible under the patent to a town-site, to acquire any interest in any mine or mining claim upon the lands so granted.3 The 1 Heydenfeldt v. Doney G. & S. Min. Co., 10 Nev. 290; Blanchard & Weeks Lead. Cases, p. 656. 2 Ah Yew v. Choate, 24 Cal. 562. "After the title has passed from the government to individuals, and the question has become one of private right, the jurisdiction of courts of equity may be invoked to ascertain if the patentee does not hold in trust for other parties. If it appear that the party claiming the equity has established his right to the land to the satisfaction of the Land Department, in the true construction of the acts of Congress, but that by an erroneous construction, the patent has been issued to another, the court will correct the mistake. (Minnesota v. Batchelder, 1 Wallace, 109; Silver v. Ladd, 7 Wallace, 219)." B. & W. L. C. 311. See People v. Morrill, 26 Cal. 337. See Adverse Claims and Contests. 3 Butte City Smokehouse Lode Cases, 6 Mont. 397; King v. Thomas, 6 Mont. 409. "Issuance of a patent, after dueļnotice, for a mining claim, conclusively determines its priority, as to the surface and the incident extra-lateral rights, over claims whose surface lines conflict therewith." owner of a mining claim over which a town-site is extended is not bound to file an adverse claim to such of his land as is covered by the town-site patent, for his claim is expressly excepted by law, and such exception is usually inserted in town-site patents from their operation. But one who claims title under a town-site patent to the surface ground of a mining claim, over which the town-site is extended, is not relieved by such town-site patent from the necessity of setting up his adverse claim, on notice of an application for a patent to the mining claim, and a failure to assert his claim before such patent is issued, would bar the claimant from doing so thereafter. The rights of a patentee, under a prior mining patent, to the possession of the surface of the ground covered by his claim, cannot be defeated by one claiming under a subsequent town-site patent, by showing that he was in possession of the land previous to the location of the mining claim; nor can he show that the location of the claim upon which the patent was based was void by reason of the failure of the locator to observe the requirements of the local statutes, for such defects, if any existed, in the location, would be cured by the issuance of the patent.3 Empire State-Idaho Mining & Developing Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 114 Fed. Rep. 420. 1 Boggs v. Merced Co., 10 M. M. R. 334. Agricultural patent void as against pre-existent mining claim. Gold Hill Co. v. Ish, 11 M. M. R. 635. 2 Butte City Cases, supra, 6 Mont. 409; King v. Thomas, Id.; Baker v. King, 14 M. M. R. 404. Talbot v. King, 6 Mont. 76. Nor could the patent be assailed, collaterally, for fraud. Boggs . Merced Co., 10 M. M. R. 334; St. Louis Smelting Co. v. King, 11 M. M. R. 673. CHAPTER VI. MINING RULES AND CUSTOMS. SECTION 69. Mining customs on government land. 70. Same-Ratification by government. 71. How far governed by State laws. 72. Must be reasonable. 73. Judicial recognition of rules and customs. 75. How rules and customs are established. 83. Will not justify deposit of tailings or refuse on adjacent land. 84. Property in fixtures sometimes determined by. 85. Right to surface support not dependent upon. 86. How rules and customs are construed. 88. Relative value and conflict between rules and customs. gov § 69. Mining customs on government land. The ernment reserves the title to precious metals and minerals on the public land, and since the government is the proprietor of such lands, no right or title can be claimed by a private individual, as to such public mining land, without the direct or implied consent of the government. The rights of such claimants were recognized in the districts where they were exercised and although in apparent conflict with the theory of absolute ownership by the government, the recognition of such rights is in consonance with the more liberal idea that the government holds land for the interest of its individual citizens, rather than the benefit of its own patrimony. The mining customs of this country have been justly referred to as a part of the American common law. They are also an apt illustration of the supreme power of the people to shape and control legislation by their conduct and their habits. Those rights, therefore, having been recognized by the people before there was any legislation on the subject, necessity compelled that the miners adopt certain rules for the government of their camp or district and to adjust the rights of adverse claimants to such property by appealing to the usages of the district where the dispute occurred, or the rules that had been adopted by the camp or district, as applicable to the question in dispute.2 § 70. Same ConRatification by the government. gress recognized the possessory rights of individual claimants under these local rules and customs, by providing that no possessory action between persons, in any court of the United States, should be affected by the fact that the paramount title to the land was in the government.3 But that the same was subject to the regulations prescribed by law, and the local rules and customs of miners in the district where the action is * 1 King v. Edwards, 1 Mont. 235. See interesting opinion of Justice Miller in Mining Co. v. Keystone, 102 U. S. 167, for history of the origin of Western rules and customs. See also Bar. & Adams on Mines and Min. in U. S., Chaps. 6 and 10. 2 Mining rules and customs, however, were not wholly unknown, prior to the discovery of precious metals in the United States, but many of the local customs obtaining there had, ages before, been recognized and applied under similar conditions, in England. MacSwinney on Mines, Chap. 6. Congress has provided that: "The miners of each district may make regulations not in conflict with the laws of the United States or the laws of the State or Territory in which the district is situated, governing the location, etc," of claims upon the public land. R. S. U. S., Sec. ® See Secs. 2319, 2320 and 2324, R. S. U. S. |