be known at the time of the entry to contain minerals of such character and value as to justify expenditures for the purpose of extracting them. In the later decision no reference is made to the act of March 3, 1891. The general mining laws having been put in force by the act of 1884,2 the townsite provisions, subsequently made applicable by section eleven of the act of 1891, are necessarily to be construed in the light of the mining laws theretofore in force. It follows that the rules of construction, as applied by the courts to the system thus extended to Alaska, have the same controlling force there as elsewhere. The act seems to be clear and unambiguous in this respect.3

173. The object and intent of section sixteen of the act of March 3, 1891.-We think that an analysis of this act, when considered with reference to the state of the law as it existed at the time of its enactment. viewed in connection with those statutes in pari materia remaining in force, justifies us in deducing the following as the true object and intent of the law:

(1) The old law inhibited the acquisition of title to mineral lands under townsite laws, whether located as such under the mining laws at the time of the proposed townsite entry or not. The land department at the time application was made to enter under the townsite was called upon to investigate the character of the land. If its mineral character was established, patent could not issue, although it might be unoccupied or unclaimed by any one under the mining laws. The new law permits mineral lands within incorporated towns, if so unoccu

1 Harkrader v. Goldstein, 31 L. D. 87.

The act of June 6, 1900, making further provision for a civil government for Alaska, re-enacts this provision, subject to certain limitations not necessary to here note. (See appendix.)

See Young v. Goldsteen, 97 Fed. 303.

pied and unclaimed, to be entered under the townsite law. It would therefore scem that, as to future entries applied for by this class of towns, the character of the land, if unoccupied and unclaimed under the mining laws, is not a fact necessarily to be passed upon by the department. If mineral, the fact of the existence or non-existence of such occupancy or claim must necessarily be adjudicated prior to the issuance of a patent. The probable force of such a patent and its unassailable character on collateral attack will be considered in a subsequent section. This much may be here said, however. The issuance of such patent to an incorporated city or town is no longer a conclusive determination that the land was non-mineral in character, as the department has now, under a certain state of facts, the power to issue townsite patents for mineral lands. It may be that such patent would be conclusive evidence of the patentability of such lands under the townsite laws.

(2) The provisions of section twenty-three hundred and ninety-two of the Revised Statutes, that—

"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 under existing laws,"

and of section twenty-three hundred and eighty-six, that

"where mineral veins are possessed, which pos"session 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,"

are re-enacted. To this last provision, which, as we have heretofore shown,' was passed prior to the enactment of the lode law of July 26, 1866, is added the following:

1See, ante, § 166.

"and when entry has been made or patent issued "for such townsites 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." 1

The purpose of this supplemental clause is evidently to relieve the land department from embarrassments caused by their previous construction of the prior existing law. That department had held that with the issuance of a townsite patent their jurisdiction as to all land embraced therein terminated, and that, although the law as well as the patent contained the proviso that no title should be thereby acquired to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws, and although it may be sufficiently established that at the date of the issuance of the patent there existed within the limits of the townsite as patented such a mine or claim as was clearly within the proviso, yet it had no power to issue a patent to such claim; that the only remedy was by a proceeding in equity, brought by the United States to annul the townsite patent.2

At one time a contrary rule obtained, and in 1897 the department again announced the rule that it had power to issue a patent for mineral veins expressly excepted from a townsite patent previously issued. The decisions in Pacific Slope Lode and Cameron Lode (supra) were overruled. While the department in the cases last cited

126 Stats. at Large, p. 1095, § 16.

Pacific Slope Lode, 12 L. D. 686; Cameron Lode, 13 L. D. 369; Protector Lode, 12 L. D. 662; Plymouth Lode, Id., 513. And see Horsky v. Moran (Mont), 53 Pac. 1064.

3 South Comstock G. and S. M. Co., 2 Copp's L. O. 146; Townsite of Butte, 3 Copp's L. O. 114; Id., 130.

Pacific Slope Lode v. Butte Townsite, 25 L. D. 518. Followed in Gregory Lode, 26 L. D. 144; Brady's Mortgagee v. Harris (on review), 29 L. D. 426.

did not base its conclusions upon the act of 1891, in a later case its decision was directly referable to that act.1

The correctness of this interpretation by the land department of its reserved powers in this regard depends upon the effect to be given a townsite patent, a question which is discussed in succeeding sections.2

(3) As to placers, if they are unclaimed under the mining laws, they may be patented by an incorporated city or town. Patents may issue on valid placer locations within such limits, independently of prior occupation, for purposes of trade or business; but only one patent may issue, as no correlative rights between townsite and mineral claimants are possible.

(4) Where the right to a lode claim within the limits of an incorporated town or city originates after settlement within the surface boundaries for townsite purposes, the prior townsite occupant is entitled to be protected in his surface rights, if they are not on the vein or lode; and it is probable that the extent and boundaries of such surface occupation will be required to be shown through adverse proceedings. Heretofore such adverse proceedings were not sanctioned, as nothing could inure to the townsite claimant by virtue of such proceedings. He could obtain no patent, and the law made no provision for the severance of any portion of the surface for his benefit.3

The provisions of the law of March 3, 1891, in this

1 Hulings v. Ward Townsite, 29 L. D. 21. See, post, §§ 175, 177.

We are aware that there are several cases arising under the law as it existed prior to March 3, 1891, which, in discussing mining patents within townsites, seem to lay some stress upon the failure of the townsite claimant to adverse the mineral applicant. But, as we understand the cases, such ruling was not necessary for the purpose of the case under consideration. We shall discuss this question further when dealing with the subject of adverse claims. See post, § § 722, 723.

behalf will require either a segregation of such surface at the time lode patents are issued or the insertion of reservation clauses, protecting prior surface occupants, and defining the extent of such occupancy. The act undoubtedly gives sanction to a practice as to lode claims within townsites which has heretofore been declared by the courts to be improper.

The department has announced the rule that under this act a townsite entry should not be permitted to include lands theretofore patented under the mining law.1

Except as herein stated, we do not understand that the townsite laws, as they existed prior to March 3, 1891, have been modified.

174. The act of March 3, 1891, not retroactive.There is nothing in the terms of the act making it retrospective in its operation. The language clearly indicates that it was intended to apply only to entries made after its passage. This is the view taken by the land department, and it is manifestly correct.2

% 175. Effect of patents issued for lands within townsites. It is difficult to intelligently discuss the force and effect of patents for any particular class of lands without involving the consideration of the general principles of law applicable to all land patents issued by the government. We appreciate the fact that at some place in this treatise the full consideration of such general principles will be a necessity; but we doubt the propriety of doing so every time we are called upon to deal with patents to an individual class. When we shall have passed that portion of the work dealing with the method

Hulings v. Ward Townsite, 29 L. D. 21.

Plymouth Lode, 12 L. D. 513; Protector Lode, Id. 662; Pacific Slope Lode, Id. 686.