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mining claimants and of town site claimants are to be decided by the courts. Esler v. Town Site of Cooke, 4 L. D. 212.

32. Patents may be issued for a town site and for a mining claim covering the same land, with a reservation in each of the rights of the other claimant. Rico Town Site, 1

AN ACT to repeal timber-culture laws, and for other L. D. 556; M. A. Hickey, 3 L. D. 83. Contra,

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SEC. 16. That 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.

27. As to town sites under section 16, act of March 3, 1891, see Com'r to Del Norte Office, Dec. 28, 1893.

28. Previous to 1891, mineral lands could not be acquired under town site laws. Hawke v. Deffeback, 22 N. W. Rep. 480. (See 115 U. S. 392.) Pierce v. Sparks, 22 N. W. Rep. 491. (See 115 U. S. 408.)

29. Section 16, act of March 3, 1891 (26 Stat. 1095), relative to the allowance of town site entries of mineral lands, is not retroactive. Protector Lode, 12 L. D. 662; Pacific Slope Lode, 12 L. D. 686.

30. When application for patent is made for a lode claim embraced within a patented town site, the town site claimants should protect any rights they may have by filing an adverse claim and securing a judicial determination thereof. If they fail so to do, the United States will not bring suit to vacate the lode patent. Thomas Starr, 2 L. D. 759; Smoke House Lode, Butte City, 4 L. D. 555.

31. A town lot owner must adverse a mineral application for patent. Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434.

Deffeback v. Hawke, 115 U. S. 392; Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858; W. A. Simmons, 7 L. D. 283; Antediluvian Lode and Mill Site, 8 L. D. 602.

33. Instructions as to reservation in patents under the decision in Deffeback v. Hawke, 115 U. S. 392; 5 L. D. 256.

34. Where a mineral patent has been issued containing a clause reserving the rights of a town site claimant (unwarranted by law), and the patentee refuses for that reason to accept the patent, it may be canceled and a hearing ordered to determine the rights of the parties. Harry Livingston Lode, 7 L. D. 319.

35. In an ejectment suit, where plaintiff shows title by patent for a mining claim, and defendant admits possession for town site purposes, plaintiff is entitled to judgment without showing that the surface is necessary to the working of his mine. Abbott v. Primeaux, 16 Nev. 361.

36. The owner of a town lot under a patent issued prior to 1872 has absolute fee-simple title to all of the lot in which known mines did not exist. A mine owner has no right to tunnel or work on portions of the lot where a mine does not exist. Dower v. Richards, 73 Cal. 477; 15 Pac. Rep. 105.

37. Where, prior to application for patent, the owner of a mining claim conveys a part thereof as a town lot, the grantee is not bound to adverse the application, but the patentee takes title subject to a trust in favor of his grantee. Suessenbach v. First National Bank, 5 Dak. 477; 41 N. W. Rep. 662.

38. A lode is located, but the location certificate is defective for uncertainty. A town site entry is then made. Then the location is amended. Two patents issued. Held, that the location, being invalid, might not be amended after the intervention of adverse town site rights. Tombstone Town Site Case, 15 Pac. Rep. 26.

39. The Land Department cannot include in a town site patent any mine, mining claim or possession. If such is included in the patent, the same to that extent is void. Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434; Silver

Bow M. & M. Co. v. Clark, 5 Mcnt. 378; 5 Pac. Rep. 574.

40. The fact that land on which the discovery and location of a mining claim are made is within the patented limits of a town will not affect the title of the locator where it was known prior to the issuance of town site patent that a mineral vein existed where the discovery and location were made. Moyle v. Bullene, 44 Pac. Rep. 69 (Colo.).

41. Upon a sufficient showing to the effect that a lode applied for within a patented town site was known to be valuable for its minerals at date of the town site entry, the Department may order an investigation with a view to the recommendation of suit to vacate the town site patent to such lode. Thomas J. Laney, 9 L. D. 83; Plymouth Lode, 12 L. D. 513; Pacific Slope Lode, 12 L. D. 686; Protector Lode, 12 L. D. 662; Cameron Lode, 13

L. D. 369.

42. A patent issued for a town site conveys no title to a known mining claim situate within the town site, but such patent, while outstanding, removes the land and the title thereto from the jurisdiction of the Department and precludes the issuance of a patent for said claim. Pacific Slope Lode, 12 L. D. 686. Contra, South Star Case, 20 L. D. 204.

43. Where the applicant for a patent for a lode claim situate within a patented town site shows such lode to have been known at the date of the town site entry, he may procure a reconveyance of the conflict by the

town site to the United States, and thus reinvest the Land Department with jurisdiction to patent the claim. Pederson Lode v. Black Hawk Town Site, 14 L. D. 186; Com'r to Denver Office, July 10, 1896, In re Dump Lode.

44. If a mine was known at date of town site entry covering the same, it was excepted from the patent issued on the town site entry and may be patented to the mineral claimant. Com'r to Denver Office, Nov. 16, 1895, Antediluvian Lode. (Applying South Star Case, 20 L. D. 204.)

45. Where a mining claim is located upon

land afterwards entered as a town site, the prior issuance of the town site patent does not affect the mining location, since the mining patent, when issued, takes effect from the date of the location of the claim by relation. Chambers v. Jones, 17 Mont. 156.

46. A town site entry may be allowed to embrace non-contiguous tracts where the original town site application was for contiguous lands and the subsequent non-contiguity is caused by the exclusion of land decided, on hearing had, to be mineral in character and covered by a mining claim. McChrystal v. Eureka Town Site, 21 L. D. 478.

47. A person who makes improvements upon public land, knowing that he has no title, and that the land is open to exploration and sale for its minerals, and makes no effort to secure the title to it as such, under the laws of Congress, or a right of possession under the local customs and rules of miners, has no claim to compensation for his improvements as an adverse holder in good faith, when such sale is made to another and the title is passed to him by a patent of the United States. Sparks v. Pierce, 115 U. S. 408.

48. A mill site location does not reserve the land covered thereby from town site entry. Rico Town Site, 1 L. D. 556.

49. A mill site is a mining claim or possession under section 2392, United States Revised Statutes, and is excepted from town site patent if located prior to town site entry. Hartman v. Smith, 7 Mont. 19; 14 Pac. Rep.

648.

50. Proof of the sale of a mining claim two years after the issuance of town site patent

is not evidence of the known mineral value at date of said patent. Richards v. Dower, 81 Cal. 44; 22 Pac. Rep. 304. See S. C., 151 U. S.

658.

TRESPASS.

(See ADVERSE and SUIT, pp. 284 and 445.)

1. In actions of ejectment or trespass, possession by plaintiff has always been held prima facie evidence of the legal title, and, as against a mere trespasser, it is sufficient. Campbell v. Rankin, 99 U. S. 261; 12 Mor. Min. Rep. 257. (Citing 2 Greenl. Ev., sec. 311; Atwood v. Fricot, 17 Cal. 37; 2 Mor. Min. Rep. Min. Rep. 202; Hess v. Winder, 30 Cal. 349; 12 305; English v. Johnson, 17 Cal. 107; 12 Mor. Mor. Min. Rep. 217.)

2. Mere possession of mineral land is good as against a mere intruder, but not against one who has complied with the law and made a legal location. Atwood v. Fricot, 17 Cal

37; 2 Mor. Min. Rep. 305; English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217; Du Prat v. James, 65 Cal. 556; 4 Pac. Rep. 562; Garthe v. Hart, 73 Cal. 541; 15 Pac. Rep. 93; 15 Mor. Min. Rep. 492; Neuebaumer v. Woodman, 89 Cal. 310; 26 Pac. Rep. 900; Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450.

3. Mere possession of mineral land is sufficient upon which to recover in trespass or ejectment against one having no title, but not as against one having the right of possession. Noyes v. Black, 4 Mont. 527; 2 Pac. Rep. 769.

4. A possessio pedis of mining land is good as against a mere trespasser, but, in absence thereof, claimant must show a legal location to succeed in a suit against a trespasser. Funk v. Sterrett, 59 Cal. 613.

5. To support an action of trespass, personal possession, possessio pedis, on the ground, is not necessary. McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076; Neuebaumer v. Woodman, 89 Cal. 310; 26 Pac. Rep. 900.

6. In an action of trespass on a mining claim the plaintiff need show only that he has possession, unless the defendant shows some sort of title superior to that of mere possession. Patchen v. Keeley, 19 Nev. 404; 14 Pac. Rep. 347; Courchainer v. Bullion M. Co., 4 Nev. 369.

7. An alien in actual possession of public land will be protected against a naked trespasser not claiming under government title. Courtney v. Turner, 12 Nev. 345.

8. In the description of the boundaries in a conveyance, monuments designated as the corners of the tract conveyed will prevail over designated measurements, and parol evidence is admissible for the purpose of pointing out these monuments and showing the identity of the land conveyed with that upon which trespass was committed. Stinchfield v. Gillis, 107 Cal. 84; 40 Pac. Rep. 98; S. C., 96 Cal. 33; 30 Pac. Rep. 839.

9. A complaint in a mere action of trespass need only allege in general terms ownership of the mining property. Allegations of location, etc., are not required. McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076; Souter v. Maguire, 78 Cal. 543; 21 Pac. Rep. 183.

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10. In a suit for trespass upon a mining location the plaintiff must show citizenship, and if the defendant justifies under another location he must show his citizenship, as no rights could be acquired by location without it. Bohanon v. Howe, 2 Idaho, 417; 17 Pac. Rep. 583. Contra, Jackson v. Dines, 13 Colo. 90; 21 Pac. Rep. 918; McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1070. (In the last case the Supreme Court of Colorado expressly refuses to follow the rule laid down by the Supreme Court of Idaho, in Bohanon v. Howe.) 11. A tortious entry is unavailing for the purpose of making a valid location of a mining claim. Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65.

12. A location of a mining claim made by one whose entry upon the claim was a trespass is illegal and confers no rights. Aurora Hill Cons. M. Co. v. 85 M. Co., 12 Sawy. 355; 34 Fed. Rep. 515; 15 Mor. Min. Rep. 581.

13. Entering upon premises in the actual possession of another, for the purpose of performing the acts necessary to constitute location and possession, amounts only to trespass, and cannot form the basis for the acquisition of title. Lebanon Mining Co. v. Cons. Republican Mtn. M. Co., 6 Colo. 381; Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496.

14. "When one has discovered a vein and has complied fully with the law in locating a claim thereon, the territory inclosed within his surface boundaries is segregated from the

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public domain in so far as all parties except the government, are concerned. * The prospector cannot go within such surface boundaries to prospect for mineral veins, and his act, if he do so, is as much trespass as though the land was patented." Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. (Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.) See Branagan v. Dulaney, 2 L. D. 744.

15. The marking of a claim by a trespasser may be adopted by the discoverer. Miller v. Taylor, 6 Colo. 41; 9 Mor. Min. Rep. 547.

16. Improvements made by a trespasser upon a mining claim may not be purchased by a claimant after suit brought to determine the right of possession, and considered as having been made, originally, by claimant. Little Gunnell M. Co. v. Kimber, 1 Mor. Min. Rep. 536.

17. If plaintiffs performed the acts required by law to locate a quartz claim except the labor, the year not having expired, and the defendants undertook to take possession of the ground, they were trespassers. Atkins v. Hendree, 1 Idaho, 95; 2 Mor. Min. Rep. 328.

18. Annual labor may be performed at any time during the year, and a relocator for abandonment before the expiration of the year is a mere trespasser. Atkins v. Hendree, 1 Idaho, 95; 2 Mor. Min. Rep. 328.

19. Where two conflicting claims are located, neither based on a valid discovery of mineral, the superior right is with him who first makes a discovery, but the first locator, before a discovery by either, may prevent entry upon the land in his possession. Crossman v. Pendery, 2 McCrary, 139; 8 Fed. Rep. 693; 1 Colo. Law Rep. 496; 4 Mor. Min. Rep.

431.

20. As between two conflicting locations, both defective, the prior locator has the superior right of possession, and may enforce it in an action of trespass against the other. Neuebaumer v. Woodman, 89 Cal. 310; 26 Pac. Rep. 900.

21. "If after one has discovered a lode, and set up a notice of his claim to it, and within the time fixed by law, for doing the work necessary to a valid location, another, coming to the same place and taking possession thereof to the exclusion of the first, shall not have advantage of his own wrong; nor shall the subsequent locator be permitted to allege anything against the right of the first locator." Erhardt v. Boaro, 3 McCrary, 19. See 2 McCrary, 141; 8 Fed. Rep. 692; 2 Colo. Law Rep. 89; 1 Mor. Min. Rep. 452. (Affirmed, 113 U. S. 527; 4 Mor. Min. Rep. 432.)

22. The forcible ouster by a trespasser of one who has discovered a mineral-bearing lode, and has posted a notice of his claim thereon, during the time allowed the discoverer by law to perfect his location, and the prevention of the discoverer from compliance with the law in that regard, excuse him, at least as against such intruder, from a performance of the various acts necessary to a legal location. | Erhardt v. Boaro, 113 U. S. 527; 4 Mor. Min. Rep. 432.

23. One who, by force and intimidation, has prevented the discoverer of a lode from perfecting his location, will not be heard to set up the discoverer's failure so to do, as that

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would be to allow him to profit by his own wrong. Miller v. Taylor, 6 Colo. 41; 9 Mor. Min. Rep. 547.

24. The fact that no work is done on a mining claim during the year, will not operate as an abandonment where the claim is adversely held by a trespasser. Mills v. Fletcher, 100 Cal. 143; 34 Pac. Rep. 637.

25. Locators of mining claims, so long as they comply with the law, have "the exclusive right of possession and enjoyment of all the surface included within the lines of their location." This is a right of property, and the claimant must protect himself from trespassers by proceedings in court. Lewis Smith, 1 L. D. 615.

26. The holder of a mining claim upon which trespasses are committed should protect himself by an action before the local courts, as the Land Department is powerless to give relief. Com'r to H. Clendenen, June 24, 1891.

27. A mine owner holding under possessory right in compliance with law may maintain an action of trespass against one who removes timber from the claim. McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076.

28. The owner of a valid location is entitled to its exclusive use and possession, and a stranger who enters thereon for the purpose of mining, cutting timber or otherwise interfering with the owner's use or possession is a trespasser. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240. See, also, Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

29. A coal declarant in possession may sue for the value of stone removed from the land by one without title. Johnston v. Harrington, 5 Wash. St. 73; 31 Pac. Rep. 316.

30. Damages for trespass are measured by the value of gold taken, less the expense of digging the gold-bearing earth and separating it from the realty so as to make it personal property. Maye v. Yappen, 23 Cal. 306; Goller v. Fett, 30 Cal. 481; 11 Mor. Min. Rep. 171.

31. The cost of production of ore wrongfully taken from a mining claim may be set off by the defendant from the value of ore taken from the plaintiff's claim. Hawkins v. Spokane Hydraulic M. Co., 28 Pac. Rep. 433; 33 Pac. Rep. 40.

32. The owner of a mining claim who sues in trespass, if he wishes damages further than

to the value of the ore taken, should set forth the special damages in his complaint. Patchen v. Keeley, 19 Nev. 404; 14 Pac. Rep. 347.

33. In an action of trespass to recover damages, the plaintiff may recover although the trespass was not wilful. Maye v. Yappen,

23 Cal. 306.

34. A locator working subterraneously into the dip of a vein belonging to another locator, who is in possession of his location, is a trespasser and liable in an action of trespass for ore taken therefrom. Flagstaff S. M. Co. | v. Tarbett, 98 U. S. 463; 9 Mor. Min. Rep. 607.

35. Injunction is a proper remedy for the illegal interference with the working of a mining claim. Fuller v. Swan River Placer M. Co., 19 Pac. Rep. 836.

36. Entry on land held by another under assertion of title is an ouster, otherwise a mere trespass. West v. Lanier, 9 Humph. 762; 12 Mor. Min. Rep. 184.

37. A United States patent is not to be collaterally attacked. It is not to be impeached by trespassers. Cowell v. Lammers, 10 Sawy. 246; 21 Fed. Rep. 200; 3 West Coast Rep. 504.

38. A miner has no right to dig or work within the inclosure surrounding a dwellinghouse, corral and other improvements of another. Burdge v. Underwood, 6 Cal. 45 (1856).

TRUST-TRUSTEE.

(See ENTRY and PATENT, pp. 239 and 277.) L REGULATIONS. II. DECISIONS.

I. REGULATIONS.

93. A party who is not an applicant for patent under section 2325, Revised Statutes, or the assignee of such applicant, is not entitled to make entry under said section, and in no case will the name of such party be inserted in the certificate of entry. This regulation has no reference to proceedings under section 2326.

94. Any party applying to make entry as trustee must disclose fully the nature of the trust and the name of the cestui que trust; and such trustee, as well as the beneficiaries,

must furnish satisfactory proof of citizenship; and the names of beneficiaries, as well as that of the trustee, must be inserted in the final certificate of entry.

II. DECISIONS.

1. After a legal entry and payment for public lands the United States holds only the naked legal title in trust for the entryman, the patent when issued relating back to the date of entry. Carroll v. Safford, 3 Wall. 441; Witherspoon v. Duncan, 4 Wall. 210; Hughes v. United States, 4 Wall. 232; Wirth v. Branson, 98 U. S. 118; Union M. & M. Co. v. Danberg, 2 Sawy. 450; Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; Hamilton v. Southern Nevada G. & S. M. Co., 13 Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min. Rep. 314; People v. Shearer, 30 Cal. 648; Astrom v. Hammond, 3 McLean, 107; Carroll v. Perry, 4 McLean, 26; United States v. Freyberg, 32 Fed. Rep. 195; Jones v. United States, 35 Fed. Rep. 561; Montgomery v. United States, 36 Fed. Rep. 4; Alta M. & Sm. Co. v. Benson M. & Sm. Co., 16 Pac. Rep. 565; Goodlett v. Smithson, 5 Port. (Ala.) 246; 3 Am. Dec. 561; Gwynne v. Niswanger, 15 Ohio, 368; Ross v. Supervisors, 12 Wis. 38.

2. An entry of lands is equivalent to the issuance of patent therefor as between the entryman and third persons, the government thereafter holding only the naked legal title in trust for the entryman. The patent when issued relates back to the inception of the right of the patentee. Deffeback v. Hawke, 115 U. S. 392.

3. A legal entry of public land vests the equitable title thereto in the entryman, the United States thereafter holding the legal title in trust for the entryman until a patent issues; and this right cannot be defeated by an order of the Land Department, issued without warrant of law, canceling the entry. Cornelius v. Kessel, 128 U. S. 456.

4. A patent issued to a citizen as trustee for an alien may not be attacked collaterally by a third person. Justice M. Co. v. Lee, 40 Pac. Rep. 444.

5. A mineral entry made by a citizen as a trustee for an alien corporation will be canceled. Capricorn Placer, 10 L. D. 641.

6. Where an application for patent is made by a trustee, the citizenship of the beneficiary must be shown. Capricorn Placer, 10 L. D.

641.

7. A purchase of coal lands from the United States by one authorized so to do, even if for the benefit and at the expense of a corporation unable to make the purchase for itself,

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