that the land department, in granting that patent, committed some error of law whereby the defendants' rights were prejudiced, that presumption is conclusive. The patent is evidence of a perfected right established by the final adjudication of the tribunal erected for the especial purpose, and carries with it the presumption that every requisite prescribed by law for the acquisition of title has been duly performed. Smelting Co. v. Kemp, 104 U.S. 636; Steel V. Smelting Co. 106 U. S. 447, S. C. 1 Sup. Ct. Rep. 389, and cases cited.

Its

It will be observed, as implied in this proposition, that, in order to avail himself of any error which may have been committed by the department, the defendant must show some legal or equitable right in himself; such that if the error should be corrected he would be entitled to the land in controversy. Cases above cited; also, Johnson v. Towsley, 13 Wall. 72. Such an error, the defendant claims, was committed by the department in restricting the hearing, upon the controversy above referred to, to the question of the mineral or non-mineral character of the land, and in ignoring the proof submitted of the prior occupancy of the premises for town-site purposes; and the defendant, therefore, claims that the plaintiff should be adjudged to hold the premises as his trustee, and decreed to convey the same to him accordingly. The propriety of this species of relief, in a proper case, may be conceded. It is in accordance with the doctrine of numerous cases in the state and United States courts. Stark v. Sturrs, 6 Wall. 418; Quinby v. Conlan, 104 U. S. 420. applicability to the present case is the main ground for contention. Passing by, for the present, the question whether the defendant could, in this indirect way, acquire a title, for town-site purposes, to land not in fact embraced within the limits of any patented town-site, or whether the desired relief should not be sought in the name of the probate judge as trustee for all of the town-site occupants, I proceed to consider the main question arising upon this demurrer. The policy of the government to reserve from sale and from the operation of ordinary grants, general and special, its mineral lands, has been declared in so many statutes, and by so many adjudications of the supreme court of the United States, that it is unnecessary, at this time, to enter upon an extended review of the history of its legislation in this regard. One or two citations will be sufficient to show with what emphasis the policy referred to has been declared. In the case of U. S. v. Gratiot, 14 Pet. 538, decided in 1840, the court say: "It has been the policy of the gov ernment at all times, in disposing of the public lands, to reserve the mines for the use of the United States; and their real value cannot be ascertained without causing them to be explored and worked under proper regulations." And again, in the case of Mining Co. v. Consolidated Min. Co. 102 U. S. 174, decided in 1880, the court, after speaking of the government in respect to its mineral lands, say: "Congress enacted, in 1866, a complete system for the sale and other regulation of its mineral lands, so totally different from that which governs other public lands, as to show that it could never have been intended to submit them to the ordinary laws for disposing of the territory of the United States."

Prior to the year 1866, although the privilege of exploring the public lands for mineral deposits, and of extracting and appropriating the precious metals, had been conceded in various ways by the government, no statutory regulation of the privilege had been adopted, nor had the government indicated any general purpose to part with its title to mineral lands upon any conditions. In 1866, however, a statute was enacted, (14 U. S. St. at Large, 251,) which, as has already been stated in the decision of the supreme court last quoted, provided a complete system for the sale and other regulation of these lands. The mineral lands of the public domain were thereby declared to be free and open to exploration and occupation, under certain conditions therein mentioned, and provision was made for the issuing of patents to those who might desire to purchase. This latter provision, in terms, applied only to veins or

lodes of quartz, or other rock in place. By the amendment of 1870, however, (16 U. S. St. at Large, 217,) the right of the purchase was extended to placer claims; and by the act of 1872, entitled "An act to promote the development of the mining resources of the United States," (17 U. S. St. at Large, 91,) both of the preceding acts were practically revised and consolidated, and it was enacted that “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," as therein provided; and this is the law as it stands in the Revised Statutes, § 2319. Section 2318 of the Revised Statutes is as follows: "In all cases, lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law." By section 2325 it is provided that "a patent for any land claimed and located for valuable deposits, may be obtained in the following manner: ** * And [the applicant] shall thereupon be entitled to a patent for the land."

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Thus it will be seen that after providing that lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law, and that all valuable mineral deposits in public lands are open to exploration, occupation, and purchase under regulations prescribed by law, congress proceeds to prescribe how these valuable lands may be occupied and purchased, and under what terms they will be sold and title to them conveyed by the United States. And it should be noticed that the patent, when issued, is for the land, and that it conveys to the patentee not only the common-law right to the full enjoyment of the surface and all below it, but also the right, in the case of a vein, to pursue that vein throughout its entire depth, even though it may pass beyond the vertical side lines of the surface location.

Such being the law in relation to mineral lands, it is contended by the defendant that such lands are nevertheless subject to entry for town-site purposes, and that if the town-site occupant has selected and occupied, for purposes of business or trade, any mineral land before it has been located or occupied for mining purposes, he is entitled to have it included in the town-site entry, and to receive a deed for it from the trustees; and that, where mining claims have been located prior to the actual entry of the town-site, patents should issue to both parties, with the respective reservations indicated, protecting such mining claims and possession on the one hand, and the surface proprietorship and improvements of the town-site occupants on the other. These propositions are based mainly upon the construction given by defendant to sections 2386 and 2392 of the Revised Statutes, which constitute part of the present chapter relating to town-sites upon the public lands, although not of the law of 1867 as first enacted. Section 2386 is as follows: "When mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the titles 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."

It is argued by defendants' counsel that the section is a legislative recognition of and provision for cases where mineral lands are embraced within the limits of town-sites, and that it follows from such recognition and provision that the legislature did not intend to reserve mineral lands from town-site entry, but only to protect existing possessory rights of miners in vein or lode claims. This argument is doubtless based upon, and derives some support from, a decision of the honorable secretary of the interior, of June 6, 1876, in the case of the Town-site of Central City, Colorado, v. Mineral Claimants, to the effect that the mineral and town-site laws, referring to section 2386, permit town-site entries overlaying lode claims, and that a surface proprietorship by the town is compatible with an adverse ownership of veins of ore

beneath. In accordance with this decision, patents for vein or lode claims within the limits of town-sites have been and are issued, with a clause excepting and excluding all town-property rights upon the surface, and all houses, buildings, structures, lots, blocks, streets, alleys, or other municipal improvements on the surface, not belonging to the patentees, and all rights necessary or proper to the occupation, possession, and enjoyment of the same; and townsite patents are issued embracing the same land, with the reservation of mining rights above referred to. In other words, as it seems to me, a precautionary enactment, obviously designed for the protection of the miner in pursuance of the then already well-defined policy of the government to encourage the development of its mineral resources, is so construed as not only to deprive the miner of some of the most valuable rights and privileges expressly secured to him by other statutes, but to confer upon the town-site occupants rights and privileges, from which by other statutes they are expressly excluded; for this land, being "valuable for mineral," is by the statute reserved from sale unless expressly directed by law. Not only the mineral deposit, but the land itself, is so reserved, and is open to exploration, occupation, and purchase by the miner. A price is fixed for the land much beyond the demand for town-site lands, which may be entered at the minimum price, and the patent which the law provides conveys the land in fee.

Moreover, it is expressly provided by section 2322 that the locators of mining claims shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations. And surely it cannot be contended that one who purchases and receives the patent of the United States for his mining claim, acquires by that deed rights less extensive than those which he has heretofore held by mere location and occupation. A sale is as much prohibited by law of congress, when to allow it would defeat the object of that law, as though the inhibition were, in direct terms, declared. Shepley v. Cowan, 91 U. S. 336.

I know of no rule of construction which would give to this section 2386 the effect claimed for it, or disclose in it any purpose to permit town-site entry upon known mineral lands. On the other hand, I think the construction insisted upon by the defendants opposed to the letter and whole spirit of the laws relating to the disposal of the mineral lands of the United States. The case of U. S. v. Gear, 3 How. 120, is instructive upon this point. By the act of 1807 it was provided that the several lead mines in Indiana should be reserved for the future disposal of the United States, and any grant which might thereafter be made for a tract of land containing a lead mine, which had been discovered previous to the purchase of such tract from the United States, should be considered fraudulent and null. By another act, passed in 1834, authority was given to the president to cause to be offered for sale all the lands lying in certain land-districts, (within the former territory of Indiana,) reserving only section 16 in each township, with certain other specified reservations, and concluding with the words, "any law of congress heretofore existing to the contrary notwithstanding."

It was contended by the defendant that, as certain reservations were made in the statute of 1834, lead mines not being among them, and as the act contained a general disaffirmance of all previous conflicting acts, lands containing lead mines were open for entry. But the court say: "The reservations in the fourth section of the act of 1834 are limitations upon the authority to sell, and not an enlargement of the general power of the president to sell lands which by law he never had a power to sell, which have always been prohibited from being sold, and which never have been sold, except under the authority of some special statute." "Authority, then, to sell all lands in these districts, though coupled with the concluding words of the fourth section, can only mean all lands not prohibited by law from being sold, or which have been reserved from sale by force of law." And, again, after stating

that these two statutes did not present a case where the later act must be held to modify or repeal the earlier, the court proceeds as follows: "The rule is that a perpetual statute, (which all statutes are unless limited to a particular time,) until repealed by an act professing to repeal it, or by a clause or section of another act, directly bearing in terms upon the particular matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject-matter, is considered still to be the law in force as to the particulars of the subject-matter legislated upon."

Perhaps the pertinency of the foregoing observations to the case at bar may be somewhat more apparent when we consider the circumstances under which section 2386 was enacted. It is true that it now forms a part of the entire system of laws designated as the Revised Statutes, approved June 22, 1874, of which the laws hereinabove cited, relating to the disposition of mineral lands, are also a part; and this fact alone may be considered to forbid the idea that this section was intended to operate as a removal or modification of the limitations imposed by those laws upon the sale of mineral lands. But I think we are not precluded from an examination of the original statute, and ascertaining from it, if possible, its primary purpose. McDonald v. Hovey, 110 U. S. 619; S. C. 4 Sup. Ct. Rep. 142. This section was first enacted as the concluding proviso of an act approved March 3, 1865, (13 U. S. St. at Large, 529,) supplemental to an act approved July 1, 1864, for the disposal of coal lands and town property in the public domain. The act of 1864, (Id. 343,) among other things, provided that upon the establishment of a town upon the public lands in the manner therein prescribed, it should be lawful for the president to cause the lots to be offered at public sale to the highest bidder, subject to a minimum price of $10 per lot, and that such lots as might not be disposed of at such sale should thereafter be liable to private entry. The supplemental act contained some further provisions as to the price of such lots, and concluded with a proviso in the words which now constitute section 2386.

It seems clear, therefore, in the first place, that this section applies only to town lots acquired under the provisions of the preceding sections of this chapter, comprising the acts of 1864 and 1865, just referred to. See McDonald v. Hovey, supra. And in view of the fact that at the time the section was first enacted no provision whatever had been made for the acquisition of title to mineral lands, nor had there been any statutory regulation of the possessory rights of miners, I think it equally clear that the purpose of this section was precautionary, to protect any mining rights which might be found to exist within any such town-site under these local customs and regulations, which have been frequently recognized by the government. If it be asked why congress did not then expressly prohibit the acquisition of title to mineral lands under the provision of that act, it may be answered, for the same reason, that the act of 1834, above referred to, contained no such prohibition,-none was necessary. The president was authorized to cause these lots to be offered for sale, and it was not to be supposed that he would offer for sale, as town lots, any lands known to be valuable for minerals, in opposition to the well-established policy of the government; yet many cases might arise to call into operation the provisions of this section; for instance, land might be claimed as non-mineral which was actually in possession of a miner; or a miner's claim, located and worked in accordance with local customs and regulations, might embrace more of the surface than the town-site claimants should deem necessary; or the miner, in pursuit of his vein or lode, might find it extending beyond the surface lines of his claim, and under the surface of an adjoining town lot. In all such cases the possessory rights of the miner would be protected by this statute; and in this connection it is significant that by section 2 of the act of 1866, (14 U. S. St. at Large, 251,) it is expressly provided that land adjoining any lode claim shall be sold subject to this consideration.

I can find no warrant whatever in this section for the claim of the defendant, that lands known to contain valuable mineral deposits are, nevertheless, open to town-site entry. The construction I have given it is in harmony with the entire policy of the government respecting its mineral lands, and, at least, does not lead to the anomaly of two conveyances of the same land to different parties for different purposes, each requiring, for that full enjoyment contemplated by the law, the exclusive possession of the entire surface. But it is insisted by the defendant that section 2392 affords further manifestations of the legislative intent to permit town-site entries upon mineral lands; and this for substantially the same reason before urged, viz., that because certain specified mining rights are expressly protected, mineral lands in general are thereby opened to entry,-a sort of reversal of the old maxim, which would make it read, exclusio unius est expressio alterius, with a new and enlarged meaning. Let us examine this section. Its first sentence was enacted March 2, 1867, as the concluding proviso of an act for "the relief of the inhabitants of cities and towns upon the public lands." 14 U. S. St. at Large, 54, the townsite law under which the Deadwood entry was made. It then comprised only the first sentence of the present section, viz., "that no title shall be acquired, under the provisions of this act, to any mine of gold, silver, cinnabar, or copper." There was considerable discussion, upon the argument of this case, as to the meaning of the word "mine" in this section; the defendant insisting that it must be limited to veins or lodes of minerals. But, upon a careful examination of the statutes, I am satisfied that the word "mine," in this section, is nearly synonymous with the word "deposit," or, possibly, with the words "land containing deposits."

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Section 2318 speaks of "lands valuable for minerals;" section 2319, of "valuable mineral deposits;" section 2323, of tunnels run * for the discovery of mines," (here equal to mineral deposits;) section 2325, of land located for "valuable deposits;" and section 2392, of "mines of gold," etc.; and all these, I think, refer to substantially the same thing, and embrace both veins or lodes and placers. I think it clear, also, that the proviso was inserted solely in pursuance of the usual policy of reservation and exception of lands valuable for minerals, to prevent the acquisition of title to such lands under the provisions of the town-site act, which designates as open to entry for town-site purposes thereunder "any portion of the public lands * * settled upon and occupied as a town-site, not subject to entry under the agricultural pre-emption laws." Rev. St. § 2387. So far, therefore, from strengthening the claim of the defendant, this proviso, as it seems to me, utterly defeats it, for it makes it incumbent upon him, before he can obtain a patent for this land for town-site purposes, to show affirmatively that the land does not contain mines of gold, etc. So, at least, the supreme court of the United States has held, in a case which seems to present just this question,—the case of Secretary v. McGarrahan, 9 Wall. 298. The act to quiet land titles in California, July 23, 1866, provided that "where persons in good faith, for valuable consideration, have purchased lands of Mexican guaranties, which grants have been subsequently rejected, and have used, improved, and continued in the actual possession of the same, and where no adverse right or title exists, such purchaser may purchase the same under regulations, etc.: provide i, that the right to purchase, herein given, shall not extend to lands containing mines of gold, silver, copper, or cinnabar." The court held that it was necessary for a claimant under this act to aver and prove that the lands did not contain mines of gold, silver, copper, or cinnabar, as necessary for him to aver and prove that he was a purchaser in good faith and for a valuable consideration, and that if the lands did in fact contain such mines he was not entitled to a patent. It is difficult to distinguish that case in principle from the one at bar. The remaining words of this section, "or to any valid mining claim or possession held under existing laws," are first found in the act