below, she is barred when the year has elapsed. But it seems clear that by the "right of suit" spoken of in section 494, is meant a present right to resort to the courts for redress. Such a right did not accrue to the plaintiff till she had been an inhabitant of this state for one year, or less than two months before she filed her complaint. Whether the provisions of section 494, above quoted, could be held to bar a suit in any case, when not pleaded by the defendant, it is not necessary now to decide. Let a decree be entered in accordance with the prayer of the complaint. (3 Wyo. 133) SUPREME COURT OF WYOMING TRABING and others v. MEYER. Filed January 29, 1885. WRIT OF ERROR-FAILURE TO FILE ABSTRACT-DISMISSAL-COSTS. When plaintiff in error fails to file the abstract of the record within the time prescribed by rule of court, the case will be dismissed, with costs. J. W. Blake, for plaintiffs in error. Downey & Groesbeck, for defendant in error. LACEY, C. J. For the failure of plaintiffs in error to file the abstract of the record within the time prescribed by rule 12 of this court, the motion of defendant in error to dismiss the writ of error and strike this cause from the docket is sustained. Costs against plaintiffs in error. (All concurring.) (3 Wyo. 133) COLLINS and others v. JOHNSON. Filed January 29, 1885. M. M. Corlett, for plaintiffs in error. J. W. Blake, for defendant in error. LACEY, C. J. For the same cause as in Trabing v. Meyer, supra, the writ of error is dismissed and this cause is stricken from the docket. Costs against plaintiffs in error. (All concurring.) SUPREME COURT OF MONTANA. (5 Mont. 378) SILVER BOW MINING & MILLING Co. v. CLARKE and others. Filed January 7, 1885. 1. MINING CLAIMS-RIGHTS OF OWNERS UNDER ACT OF 1865. By acquiring a mining claim under the statute of 1865 the only right the miner had was possession and the necessary use of his vein, and this right that statute protected. 2. SAME-RIGHTS OF OWNERS UNDER ACT OF 1972. In enacting the statute of May 10, 872, congress designed to sell the mineral lands. This land is declared " open to occupation and purchase," and this language will not bear the interpretation that the government intended thereby to sell to the purchaser of a mining claim a mining easement therein, or simply the right to occupy and possess the mining claim for the necessary use of the mineral vein. The right to occupy and purchase, means the right to acquire the full title to the land. 3. SAME POWER OF LAND-OFFICE OVER LAND ONCE SOLD. 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. It is already sold, and has become private property. 4. SAME-SUBSEQUENT TOWN-SITE APPLICATION-DUTY OF MINING CLAIM OWNER AS TO OPPOSING A GRANT. The town-s.te application and entry not being applicable to, or in any manner affecting a prior mining claim located according to law, there is no obligation upon the owner of the mining claim to file an adverse claim to the entry of the town-site. 5. SAME-SCOPE OF A PATENT-UNAUTHORIZED ACT OF LAND-OFFICER. A patent relates back to the right. A patent to a mining claim relates back to the location, and is the consummation of the purchase then made. No unauthorized act of the land-officer in issuing a patent can affect this right. 6. SAME-DEPARTMENT MUST ACT WITHIN ITS AUTHORITY. The action of the land department in issuing patents for the public lands is conclusive as to the legal title, when acting within the scope of its authority. 7. SAME-TOWN-SITE PATENTS-MINING CLAIMS EXCEPTED FROM THEM. The land department is only authorized to issue patents to the probate judge for town-site purposes on the public lands, not lands previously granted and sold or reserved from sale. And the act authorizing the issue of such patents forbids the department to include in the patent any mines, mining claim, or possession. Appeal from Silver Bow county. WADE, C. J. This is an action in the nature of ejectment, in which the respondent seeks to recover the possession of a certain miningclaim location, known as the "Pawnbroker Lode Claim," situate in Summit Valley mining district, Silver Bow county, claimed by appellants as a part of the Butte town-site. There was but little controversy at the trial as to the facts, which are, in substance, as follows: That the Pawnbroker mining claim was located and claimed on the sixteenth day of November, 1875, on what was then the public and unappropriated mineral lands of the United States; that at the time of such location and claim the grantors of plaintiff had discovered, within the limits of said claim, a vein or lode of quartz, in place, containing silver and other valuable deposits, with at least one well-defined wall; that at the time of such location the same was distinctly marked on the ground, so that its boundaries could be readily traced, and a notice of the claim posted on the ground; and that within 20 days after said discovery and location a declaratory statement, in due form of law, was filed and recorded in the proper county, and a duplicate thereof posted at discovery shaft on said claim at the time of said location; that said location and claim were made under the act of congress of May 10, 1872, and the laws of the territory; that there was not, at the time of said location and claim, or since, any local rules, laws, customs, or regulations of miners in force in Summit Valley mining district, and that the location and claim of the Pawnbroker claim was in all respects regular, and according to the laws of the United States and the territory of Montana, and everything necessary was done to make the same a valid mining location and claim at that time; that the locators and their grantees, as to work on said claim, and in all other respects, complied with the law, so as to preserve whatever title to said claim was acquired by said location; that in the month of May, 1878, an application, in due form of law, for a patent was made for said Pawnbroker mining claim, under and by virtue of the location thereof made November 16, 1875; that notice of said application was given as provided by law; that no protest or adverse claim was made thereto; that upon said application a patent dated January 15, 1880, was issued for said Pawnbroker mining claim, which is the patent mentioned in the answer and replication, and under which respondent claims; that said patent contained a clause "excepting and excluding from said patent all townsite property rights upon the surface, and all houses, buildings, lots, blocks, streets, alleys, or other municipal improvements on the surface of said Pawnbroker mining claim;" that the proceedings upon. the application for the patent for the Butte town-site mentioned in the answer and replication were in due form of law, and that no protest against or adverse claim to any part of the Pawnbroker claim, which was embraced in said town-site patent, was made against or to said application by any one claiming title to the Pawnbroker claim; that the defendants have and own all the right and title which was acquired by law, or could be legally conveyed by the probate judge, under the patent to the probate judge for the Butte town-site, dated September 26, 1877, in and to all those portions of the surface ground of the Pawnbroker mining claim which are embraced within the limits of said town-site patent; that said patent contains in it a provision as follows, to-wit: "No title shall be hereby acquired to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws of congress;" that the Pawnbroker claim, described in the complaint herein, was at the time of the issuance and date of said town-site patent, and before and since, a valid mining claim and possession, held under existing laws of congress,-to-wit, under the act of May 10, 1872,-and the laws of Montana territory, by the grantors and predecessors in interest of the plaintiffs. Under this state of facts, was any title or right of possession to the Pawnbroker mining claim, or any part thereof, conveyed or passed by the town-site patent, or by any deed made by the probate judge in pursuance thereof? What are the rights of the respective parties to the land and premises in dispute? These rights must be determined by an interpretation of the acts of congress in relation to the acquisition of title to the public mineral lands, and to town-sites situate on the public lands, which statutes are as follows: Rev. St. U. S. § 2386: "When 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." Section 2387 provides for the entry of town-sites on the public lands in trust for the use of the occupants thereof. 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.” Sec. 2318: "In all cases, lands valuable for mineral shall be reserved from sale, except as otherwise expressly directed by law." Sec. 2319: "All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found, to occupation and purchase, by citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs and regulations of miners in the several mining districts, so far as the same are applicable, and not inconsistent with the laws of the United States." Section 2320 regulates the size of mining claims, and provides, among other things, that no claim shall extend more than 300 feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than 25 feet on each side of the middle of the vein at the surface. Section 2322 provides that the locators of all mining locations hereafter made on any mineral vein, lode, or ledge, "shall have the exclusive right of possession and enjoyment of all surface ground included within the lines of their locations." Section 2324 regulates the manner of locating, recording, marking the boundaries of the claim, and the amount of work necessary to hold possession of the claim. Section 2325 points out how a patent to a mining claim may be obtained; and section 2326 provides for filing an adverse claim, and the proceedings to determine the right of possession to the ground in dispute. |