specifies a different period (as for example, the date of survey).1 Until patent is issued or selections are finally approved, the land department retains jurisdiction to pass upon the character of the land; and its judgment, culminating in the issuance of a patent or final approval of a selection, is conclusive, and not open to collateral attack. (4) The term "mineral land," as used in the reservation clauses of railroad grants, includes all valuable deposits, metallic and non-metallic, which are or may be subject to entry under the mining laws, except coal and iron, where these substances are excepted out of the mineral reservation.2 (5) Mineral lands within either the primary or indemnity limits of railroad grants, prior to patent or certification, belong to the public domain, and are open to exploration and purchase under the mining laws, the same as any other public mineral lands. ARTICLE V. TOWNSITES. § 166. Laws regulating the entry of townsites. § 167. Rules of interpretation applied to townsite laws. § 168. Occupancy of public mineral lands for purposes of trade or business. lands § 169. Rights of mining locator 170. Prior occupancy of public affecting the appropriation of such lands under the mining laws - The rule prior to the passage of the act of March 3, 1891. § 171. Correlative rights of mining and townsite claimants recognized by the land department prior to the act of March 3, 1891. § 172. Section sixteen of the act of March 3, 1891, is limited in its application to incorporated towns and cities. Bedal v. St. Paul, M. and M. Ky. Co., 29 L. D. 254. Northern Pac. Ry. Co. v. Soderberg, 99 Fed. 506. § 173. The object and intent of § 176. What constitutes a mine or section sixteen of the act of March 3, 1891. 174. The act of March 3, 1891, not retroactive. § 175. Effect of patents issued for lands within townsites. 175a. Difficulty in the application of principles suggested. valid mining claim within the meaning of section twenty-three hundred and ninety-two of the Revised Statutes. § 177. In what manner may a townsite patent be as sailed by the owner of a mine or mining claim. § 178. Ownership of minerals under streets in townsites. 166. Laws regulating the entry of townsites.-The laws of the United States providing for the reservation and sale of townsites on the public lands are found in title thirty-two, chapter eight, of the Revised Statutes, sections twenty-three hundred and eighty to twentythree hundred and ninety, supplemented by section sixteen of the act of March 3, 1891, entitled "An act to repeal timber-culture laws, and for other purposes. These laws provide three methods of acquiring title to town property on the public domain: 991 (1) Where the president of the United States has directed the reservation provided for by section twentythree hundred and eighty of the Revised Statutes; (2) In cases where towns have already been established, or parties desire to found a town under the provisions of section twenty-three hundred and eighty-two; (3) Under section twenty-three hundred and eightyseven, by the terms of which the entry of land settled and occupied as a townsite may be made by the corporate authorities if the town be incorporated, or, if unincorporated, by the county judge, for the use and benefit of the several occupants. We have no particular concern with townsites falling 126 Stats. at Large, p. 1095. within sections twenty-three hundred and eighty or twenty-three hundred and eighty-two. Section twenty-three hundred and eighty-seven is but a restatement or codification of the law as it existed at the time of the revision.1 It is under this section and the acts from which it was framed that most of the flourishing towns of the west have applied for and received patents, and it is the only one of the three methods of acquiring title to town property on the public lands which requires particular consideration at our hands, although the principles of law discussed apply to all classes of townsites, by whatsoever method they are sought to be acquired. Section twenty-three hundred and eighty-seven of the Revised Statutes is as follows: 66 66 "Whenever any portion of the public lands have been or may be settled upon and occupied as a townsite, not "subject to entry under the agricultural pre-emption laws, it is lawful, in case such town be incorporated, "for the corporate authorities thereof, and if not incor"porated, for the judge of the county court for the "county in which such town is situated, to enter at the "proper land office, and at the minimum price, the land "so settled and occupied, in trust for the several use. "and benefit of the occupants thereof, according to their respective interests; the execution of which trust, as "to the disposal of the lots in such town, and the pro"ceeds of the sales thereof, to be conducted under such "regulations as may be prescribed by the legislative "authority of the state or territory in which the same "may be situated." The townsite acts and the chapter of the Revised Statutes into which their provisions are incorporated contain certain restrictions and limitations upon the subject 'Act of March 2, 1867, 14 Stats. at Large, p. 541; Act of June 8, 1868, 15 Stats. at Large, p. 67. 'Public Domain, pp. 298, 299. of mineral lands, which are necessary to be considered for the purpose of obtaining a proper understanding of the adjudicated cases, and to enable us to draw correct conclusions as to the rules of interpretation to be applied. These restrictions and limitations are as follows: Section twenty-three hundred and eighty-six of the Revised Statutes provides that, — "where mineral veins are possessed, which posses"sion 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 posses"sion and the necessary use thereof; but nothing con"tained in this section shall be so construed as to "recognize any color of title in the possessors for min"ing purposes as against the United States." This is but a re-enactment of the proviso contained in the act of March 3, 1865,1 and, of course, its original enactment antedates all legislation of congress, granting in express terms the right to explore and acquire by location any class of public mineral lands. Considering the state of the law on the subject of this class of lands at the time of the revision of the federal statutes (December, 1873), it would seem that this section, framed to apply to conditions which no longer existed, was superfluous, and might with all propriety have been omitted. Since the original act was passed, congress, by its legislation, has given to valid mining locations the status of legal estates. As the law now stands, no possession of public mineral lands can be lawfully recognized by local authority which possession is not acquired and held under the sanction of the general mining laws. So far as an intelligent interpretation of the townsite laws is sought, under existing conditions, section twenty-three 113 Stats. at Large, p. 530. hundred and eighty-six performs but little, if any, function beyond that of an historical landmark or a link in the chain of evolution. 66 The act of March 2, 1867, entitled "An act for the "relief of the inhabitants of cities and towns upon public lands," contained the following provision:"No title shall be acquired under the foregoing pro"visions of this chapter to any mine of gold, silver, "cinnabar, or copper."1 At the time this act was passed, the first mining act of July 26, 1866, was in full force, which declared that the mineral lands of the public domain should thereafter be free and open to exploration and occupation, and provided for the acquisition of title to veins, or lodes, of quartz or other rock in place bearing gold, silver, cinnabar, and copper. It is obvious that the townsite act of 1867 was framed in the light of the first mining act. The act of June 8, 1868, added to the above quoted provisions of the act of March 2, 1867, the following clause: "or to any valid mining claim or possession held "under existing laws." 2 The foregoing provisions of the two acts were united and incorporated into the Revised Statutes, and are embodied in section twenty-three hundred and ninetytwo of the chapter relating to townsites, which now reads as follows: "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." It may be noted that the mining act of May 10, 1872, which was in force when the Revised Statutes went into 114 Stats. at Large, p. 541. 15 Stats. at Large, p. 67. |