CHAPTER VII.

THE RELATION BETWEEN MINERAL LANDS AND TOWNSITES.

28.

Lands Subject to Townsite Entry.

29. The Location of Known Veins in Townsites.

"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 incorporated, 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 proceeds 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." Rev. St. U. S. § 2387 (U. S. Comp. St. 1901, p. 1457).

"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, 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." Act March 3, 1891, c. 561, § 16, 26 Stat. 1101 (U. S. Comp. St. 1901, p. 1459).

LANDS SUBJECT TO TOWNSITE ENTRY.

28. Under the early townsite acts, townsites could not be located on mineral lands; but under the act of 1891 townsite entries may be made on mineral lands by incorporated towns and cities. Townsite patents do not, however, carry title to mineral veins which at the time of entry are known to exist. Minerals not known to exist at the time of townsite entry pass to the town.

While there are other methods of acquiring townsites, the one set forth in Rev. St. U. S. § 2387 (U. S. Comp. St. 1901, p. 1457), and in the act of 1891,1 above quoted, is the one prevailing in the mining region. And it should be noted that the act of 1891 applies expressly only to incorporated towns and cities, and therefore appears not to cover townsite entries made by the judge of the county court, as authorized by section 2387, Rev. St. U. S. Both section 2387 and the act of 1891 must be read and considered in connection with the whole general land law system, and with the mining law as a special, but integral, part of that general system. As was inevitable, the mining regions and the towns have been closely associated. "Some of the most valuable mines in the country," said Mr. Justice Field, "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 government 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 immediate neighborhod, 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 the newcomers with vigor, and is often rewarded with the discovery of valuable claims." In the case in which Mr. Justice Field made the above statements, the United States Supreme Court held that a miner who had located a mining claim within the limits of a new town prior to a patent for a townsite had a valid location superior to any claim of the town. Prior to the act of 1891 it is hard to see how the matter could ever have been in doubt, where the location was made peaceably, as was true in the case mentioned, and the actual surface ground thus obtained without the actual occupation of the rest of the land by the townspeople for town purposes being interfered with.

"2

1 26 Stat. 1101, c. 561, § 16 (U. S. Comp. St. 1901, p. 1459).

2 STEEL v. ST. LOUIS SMELTING & REFINING CO., 106 U. S. 447, 449,

1 Sup. Ct. 389, 27 L. Ed. 226.

3 See Poire v. Wells, 6 Colo. 406.

Effect of Actual Occupancy of Public Land for Town Purposes. Yet with reference to the actual occupation by the townspeople some very perplexing problems have arisen under the act of 1891. Those problems seem to grow out of the concurrence of two doctrines: (1) That by settling on land not known at the time to be mineral the townsman initiates, under the act of 1891, a right which, taken with the rights of his fellow townsmen, will lead on to a townsite patent, and which, when so initiated, takes the occupied surface; and (2) that the mining act of May 10, 1872 (17 Stat. 91, c. 152), and the revision contemplate no mining location unless a surface containing a lode can be located. The validity of the second doctrine seems not to be questioned, but even prior to the act of 1891 the first doctrine was never satisfactorily discussed by the courts. Certainly the cases of Steel v. St. Louis Smelting & Refining Co., Deffeback v. Hawke, and Davis v. Weibbold left the question in a far from satisfactory shape.

The problem of actual occupancy by the townspeople is discussed in Bonner v. Meikle, a case arising under the act of 1891. It should be noticed that Bonner v. Meikle was technically an adverse suit, under the statute in reference to the patenting of mining claims, and as such necessarily litigated priority of interest in the surface.10 Moreover, the case was decided in 1897, after the act of 1881,11 which required that if, in an adverse suit, it appeared that neither party established title to the ground in controversy, judgment should be entered accordingly. As the court rendered judgment for the townspeople, even though no townsite patent had yet been applied for by them, the conclusion is irresistible that the case stands for the proposition that the surface belongs to the townspeople, even though the town remains inchoate. The court said: "The citizens of a town have as much right to build houses upon the public domain in which to live as others have to locate mining claims upon which to work. One purpose is as

4 See BONNER v. MEIKLE (C. C.) 82 Fed. 697.

♪ TRAPHAGEN v. KIRK, 30 Mont. 562, 77 Pac. 58; Montana Ore Purchasing Co. v. Boston Mining Co., 20 Mont. 336, 51 Pac. 159; State v. District Court, 25 Mont. 504, 65 Pac. 1020. See Heill v. Martin (Tex. Civ. App.) 70 S. W. 430; Gleeson v. Martin White Min. Co., 13 Nev. 442.

6106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226. 7115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423.

8 139 U. S. 507, 11 Sup. Ct. 628, 35 L. Ed. 238.

(C. C.) 82 Fed. 697. See, also, Young v. Goldsteen (D. C.) 97 Fed. 303. 10 The land department, however, holds that an adverse suit does not dispose of the matter. See Ryan v. Granite Hill Mining & Development Co., 29 Land. Dec. Dep. Int. 522; Grand Canyon Ry. Co. v. Cameron, 35 Land Dec. Dep. Int. 495.

11 Act March 3, 1881, c. 140, 21 Stat. 505 (U. S. Comp. St. 1901, p. 1431).

COST.MIN.L..

necessary as the other. Both are entitled to the equal protection of the law. Although complainants have not connected themselves with any government title, nor sought in any manner to secure such title, yet they have such a possessory right to the land upon which their buildings have been erected as will prevent others, not having any title from the government, from entering thereon and taking their property from them without first establishing a superior right thereto. There are many cases where the owners of mining ground valued at millions of dollars have preferred to hold the same under 'a mere possessory right,' rather than to take any steps to secure a patent from the government. Would it not be absurd to claim that in such cases the owners of the possessory title under valid mining locations were not entitled to any protection, and could not even protest against the application of some subsequent locator, for a patent covering a portion or all of their ground, because they had never taken any steps to secure title to their property from the United States?" 12 The court then puts forward the idea of a "townsite location"; i. e., the idea that actual occupancy for business purposes is equivalent to a mining location, so far as to prevent a subsequent mining location of the same ground. from being made.18

Bonner v. Meikle would seem to announce sound doctrine with reference to occupation by inhabitants of incorporated towns and cities. under the act of 1891, but what about the previous acts? As to them, despite the somewhat ambiguous dicta to be found in the decisions, it seems as if Mr. Lindley's "conclusion that the Supreme Court of the United States never intended to establish the rule that prior occupancy of the public mineral lands for trade or business purposes operated to withdraw such lands prior to the issuance of a townsite patent from appropriation under the mining laws, provided, always, that such appropriation was effected by peaceable methods and without resort to force or violence," 14 is the proper one to draw."

Relation of Act of 1891 to Older Acts.

It must not be forgotten that the theory underlying the act of 1891 is very different from that underlying the old acts. Under the old acts title to mineral lands was not to be acquired by townsites, and if the land department, in its investigation of the character of the land.

12 BONNER v. MEIKLE (C. C.) 82 Fed. 697, 699.

13 Compare White v. Whitcomb, 13 Idaho, 490, 90 Pac. 1080, where there is a dictum that lands occupied for town purposes are not subject to homestead entry.

141 Lindley on Mines (2d Ed.) § 170. See Martin v. Browner, 11 Cal. 12. 15 Compare case of railroad grant. NORTHERN PAC. R. R. CO. v. SMITH, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157.

sought to be patented as a townsite, determined that the whole land was mineral, even though nobody else claimed it, it could not patent the land as a townsite, and when a patent issued known mineral land did not pass under it.16 But under the act of 1891 it is expressly provided that townsite entries may be made on mineral lands by incorporated towns and cities-the usual kind, of course, to-day. No longer, then, if the town or city applying for a townsite patent is incorporated, may the land department refuse the townsite patent because the land is mineral, though, of course, previous mining locations must be protected.17 In view of such a fundamental difference between the new act and the old, it is possible and proper to have a fundamental difference in the effect on attempted mining locations of a townsman's occupancy prior to townsite patent.

In still another respect the act of 1891 has changed things. Indirectly, if not directly, it changed a ruling of the land department. That department had held that after a townsite patent issued for a tract of land it could not issue a patent to a mining claim validly located prior to the issuance of the townsite patent, but that the mineral claimant must bring a suit in equity to set aside the townsite patent.18 Since the act of 1891, however, the holding has been reversed, and a patent will now issue for mining claims to which the townsite patent cannot apply.19 Whether the latest ruling of the land department is right or wrong depends upon whether a previously located mining claim is technically excepted from the townsite patent by virtue of the townsite acts and the reservations actually inserted in the townsite patents pursuant thereto. That it is such a technical exception, just as a lode known to exist in a placer at the time of the application for a patent of the placer is an exception, would seem to be true,20 though Mr. Lindley intimates, and whatever he says deserves serious consideration, that it is not an exception. "Logically," says Mr. Lindley, "we think the mineral claimant's remedy in this class of cases is in equity to erect

16 Moyle v. Bullene, 7 Colo. App. 308, 44 Pac. 69; Brady's Mortgagee v. Harris, 29 Land Dec. Dep. Int. 89, 426.

17 Nome & Sinook Co. v. Townsite of Nome, 34 Land Dec. Dep. Int. 102, 276; Telluride Additional Townsite, 33 Land Dec. Dep. Int. 542.

18 See Cameron Lode, 13 Land Dec. Dep. Int. 369; Board of Education v. Mansfield, 17 S. D. 72, 95 N. W. 286, 106 Am. St. Rep. 771.

19 NOME & SINOOK CO. v. TOWNSITE OF NOME, 34 Land Dec. Dep. Int. 276; Hulings v. Ward Townsite, 29 Land Dec. Dep. Int. 21.

20 See Silver Bow M. & M. Co. v. Clark, 5 Mont. 378, 5 Pac. 570; Talbott v. King, 6 Mont. 76, 9 Pac. 434; Butte City Smoke House Lode Cases, 6 Mont. 397, 12 Pac. 858. That a located mill site is also excepted, see Hartman v. Smith, 7 Mont. 19, 14 Pac. 648.