effect, covered claims for lands bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, the words in italics not appearing in either the act of 1866 or the townsite laws.

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As thus outlined, these laws stood, and were construed and interpreted by the highest courts in the land, and a fair understanding of their provisions was about being reached, when congress, by a provision inserted in the "Act to repeal the timber-culture laws, and for other purposes," passed March 3, 1891, (principally for other purposes,)1 injected some new elements into the townsite laws which thus far have not received the attention of the courts. The provisions referred to are found in section sixteen of the act in question, and are as follows:

"SEC. 16. That townsite 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, cin"nabar, 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 incorpo"rated 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 recog"nized possession and the necessary use thereof; and "when entry has been made or patent issued for such "townsites to such incorporated town or city, the pos"sessor 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 ap"plicant."

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126 Stats. at Large, p. 1095.

To what extent this act is an innovation upon the system theretofore existing, and how far the rules of law theretofore established by the current of judicial authority are strengthened, weakened, or have become obsolete, will be noted as we proceed.

It appears, however, that the act is limited in its application to incorporated cities or towns, and its provisions do not apply to cases of townsite entries made by the county judge or the judicial officer performing his functions for the use and benefit of the occupants, or entries made by trustees appointed by the secretary of the interior. In enumerating the minerals, the act adds lead to the category, as found in section twenty-three hundred and ninety-two of the Revised Statutes.

? 167. Rules of interpretation applied to townsite laws. It is not to be inferred from the caption to this section that in construing the townsite laws we are authorized or required to invoke any rules of interpretation peculiar to this branch of the public land laws. We are called upon simply to apply general rules, and note the instances where special application of these rules to the laws under consideration has been made by the courts.

The townsite laws, as they now exist, consist simply of a chronological arrangement of past legislation, an aggregation of fragments, a sort of "crazy quilt," in the sense that they lack harmonious blending. This may be said truthfully of the general body of the mining laws. The rules adopted for the interpretation of the one apply with equal force to the other.

We have endeavored to formulate these rules in a preceding section. We may supplement these with another rule specially applicable; i. e. the townsite laws 'See, ante, § 96.

Lindley on M.-18

are to be read and construed in connection with all the existing legislation of congress regulating the sale and disposal of the public lands-that is, these laws are to be considered with all other laws which are essentially in pari materia.

2168. Occupancy of public mineral lands for purposes of trade or business.-Important mineral discoveries in new quarters, however remote from civilized centers, are invariably followed by a large influx of population. The advance-guard sets its stakes upon the most convenient spot, erects tents, or constructs primitive habitations, which form the nucleus of the future town. As was said by Judge Field, speaking for the supreme court of the United States,

"Some of the most valuable mines in the country are "within the limits of incorporated cities which have grown up on what was, on its first settlement, part of "the public domain; and many of such mines were "located and patented after a regular municipal gov"ernment had been established. Such is the case with "some of the famous mines of Virginia City, in Nevada. "Indeed, the discovery of a rich mine in any quarter "is usually followed by a large settlement in its immedi"ate neighborhood, and the consequent organization of "some form of local government for the protection of "its members. Exploration in the vicinity for other "mines is pushed in such case by new-comers with vigor, and is often rewarded with the discovery of "valuable claims." 1

That conflicts should arise between mineral claimants and occupants of lands for purposes of business and trade in the newly discovered mineral regions is but natural. Frequently these controversies are of an aggravated nature, and resort to force is a matter of

Steel v. St. Louis Smelting Co., 106 U. S. 447, 449, 1 Sup. Ct. Rep. 389; Deffeback v. Hawke, 115 U. S. 392, 406, 6 Sup. Ct. Rep. 95.

common occurrence, particularly so before the organization of any form of local government. But eventually the more important ones find their way into the courts, whose decisions have resulted in establishing certain definite rules of law, governing the respective rights of the miner and the merchant within the limits of the settlement. These limits are not always well defined. Until application is made to enter and purchase the townsite, the exact area which may properly be considered as within the site of the future town may be limited by the extent of actual occupancy. In some instances, some enterprising individual surveys a tract of land into lots and blocks, streets and alleys, thus giving a semblance to a claim within the exterior limits of the survey. When such town is incorporated, the territorial limits over which municipal jurisdiction is asserted are, of course, defined by the act of incorporation. When application is made to enter the townsite by the town authorities, if incorporated, or by the county judge, if unincorporated, the area which may be thus entered will depend upon the number of inhabitants, the maximum area allowed being twenty-five hundred and sixty acres.1

It frequently happens that a large portion of this area, as finally entered and patented, is unoccupied, and remains so indefinitely. We are called upon to determine the respective rights of the two classes of claimants within the asserted limits of the townsite, both before and after patents are issued to one or the other.

169. Rights of mining locator upon unoccupied lands within unpatented townsite limits.-It is hardly necessary to state that the owner of a valid and subsisting mining location which had its inception at a time

1 Rev. Stats., § 2389.

prior to any occupancy within the surface limits of his claim, for purposes of trade or business, cannot be deprived of any of his rights flowing from such location by settlement thereon of later arrivals desiring to engage in commercial traffic or to assist in the founding of a city. The land embraced within the mining location is just as much withdrawn from the public domain as the fee is by a valid grant from the United States under authority. Such location is a grant from the government.2

There is no room for a further grant; for the government would have nothing to convey.3

That the mining location is within the claimed or actual limits of the unpatented townsite is therefore of no moment. As was said by the supreme court of the United States,

"To such claims, though within the limits of what may be termed the site of the settlement or new town, "the miner acquires as good a right as though his discovery was in a wilderness.'' 4

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170. Prior occupancy of public mineral lands within unpatented townsites for purposes of trade, as affecting the appropriation of such lands under the mining laws-The rule prior to the passage of the act of March 3, 1891.-In discussing the effect of a prior occupancy of public mineral lands for townsite purposes, upon the right of subsequent appropriation under

1 Silver Bow M. and M. Co. v. Clark, 5 Mont. 406, 5 Pac. 570.

Butte City Smokehouse Lode Cases, 6 Mont. 397, 12 Pac. 858; Belk v. Meagher, 104 U. S. 284; Gwillim v. Donnellan, 115 U. S. 45, 49, 5 Sup. Ct. Rep. 1110. See, also, Noyes v. Mantle, 127 U. S. 348, 8 Sup. Ct. Rep. 1132; Teller v. United States, 113 Fed. 273; Stratton v. Gold Sovereign M. and T. Co., 1 Leg. Adv. 350. See, post, § 322.

3 Silver Bow M. and M. Co. v. Clark, 5 Mont. 406, 5 Pac. 570. Steel v. St. Louis Smelting Co., 106 U. S. 447, 449, 1 Sup. Ct. Rep. 389; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95.