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as it passed at the time of the sale, but the question as to its mineral character must be determined according to the facts existing at the time of the sale.

Laney, In re, 9 L. D. 83, p. 84.

See Colorado Coal & Iron Co. v. United States, 123 U. S. 307.

SECTION 2387, REVISED STATUTES.

Whenever any portion of the public lands have been or may be settled upon and occupied as a town site, not subject to entry under the agricultural preemption 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 sale, 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.

A. TOWN-SITE ACT-PURPOSE.
B. TOWN-SITE ENTRY.

A. TOWN-SITE ACT-PURPOSE.

The town-site act opens to entry for town-site purposes any portions of the public land settled upon and occupied as a town site, not subject to entry under the agricultural or preemption laws, but lands valuable for minerals are expressly excepted from all town-site sections.

Hawke v. Deffeback, 4 Dak. 20, p. 33.

B. TOWN-SITE ENTRY.

1. EFFECT OF ENTRY ON MINING CLAIM.

2. ADVERSE CLAIM.

3. DOES NOT CARRY MINING CLAIMS.

1. EFFECT OF ENTRY ON MINING CLAIM.

A town-site entry can not affect a valid existing mining claim situated within the boundaries of the town site, as in such case the mining ground has been previously granted and has ceased to be a portion of the public lands, for which only a town-site entry can be made.

Silver Bow Min., etc., Co. v. Clark, 5 Mont. 378, p. 416.

2. ADVERSE CLAIM.

A town-site entry and patent can only embrace land not known to be mineral at the time of entry and therefore a town-site patentee has no standing as an adverse claimant against an application for patent by a mineral claimant, as this question must be decided by the Land Department, and a decision by a court on that question would not be binding or relieve the department from the duty of making its own decision.

Ryan v. Granite Hill Min., etc., Co., 29 L. D. 522, p. 524.
Wright v. Town of Hartville, 13 Wyo. 497, p. 507.

3. DOES NOT CARRY MINING CLAIMS.

A town-site entry and patent does not carry title to any mine of gold, silver, or copper, or to any valid mining claim or possession held under existing law.

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The fact that land was known at the date of a town-site entry to contain some mineral would not alone warrant a conclusion that it was excepted from the town-site patent.

Mill Side Lode, In re, 39 L. D. 356, p. 358.

SECTION 2392, REVISED STATUTES.

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.

See 14 Stat. 541, p. 541, p. 1376; 15 Stat. 67, p. 1377.

A. TOWN-SITE LAWS.

B. TOWN-SITE PATENT, p. 1371.

C. MINERAL PATENT, p. 1374.

A. TOWN-SITE LAWS.

1. CONSTRUCTION AND PURPOSE.

2. "MINES OF GOLD"-"LANDS VALUABLE FOR MINERALS" MEANING.

3. TOWN SITES LOCATED ON MINERAL LANDS- EFFECT.

4. EXISTING MINING RIGHTS PROTECTED.

5. TITLE TO MINERAL LANDS NOT ACQUIRED UNDER.

6. EXTENT OF PROHIBITION AGAINST TITLE TO MINES. 7. MINERAL CHARACTER

JURISDICTION.

OF LAND DETERMINATION

8. MINERALS IN TOWN-SITE LANDS OPEN TO EXPLORATION.

1. CONSTRUCTION AND PURPOSE.

AND

Congress, by these statutes relating to town sites, recognized the possession of mining claims within their limits.

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This section has no relation to a patent for a town site issued July 1, 1869.

Richards v. Dower, 81 Cal. 44, p. 49.

This section does not evince a legislative intent to permit town-site entries upon mineral lands.

Hawke v. Deffeback, 4 Dak. 20, p. 32.

It is proper for the Government to reserve to itself the title to any gold mine which may be known to exist in any part of a town-site lot.

Dower v. Richards, 73 Cal. 477, p. 478.

2. "MINES OF GOLD”—“LANDS VALUABLE FOR MINERALS"- -MEANING.

The term "mines of gold, silver, cinnibar, or copper," used in connection with town-site lands, refers only to known mines discovered prior to the issuance of the town-site patent.

Williams, In re, 9 C. L. Q. 147.

The term "mine of gold, silver, cinnabar, or copper," as used in the exception found in this section, means a paying mine known to exist at the time of the grant, or one which there was good reason to believe then existed.

Smith v. Hill, 89 Cal. 122, p. 125.

The words "mines of gold," used in this section, and the term "lands valuable for minerals" in section 2318 R. S., and the words “valuable mineral deposits" in section 2319, and the word "mine" in section 2323 R. S., all refer to substantially the same thing and embrace both veins or lodes and placers.

Hawke v. Deffeback, 4 Dak. 20, p. 33.

A town-site entry can not be made on lands known to contain minerals of such extent and value as to justify expenditure for the purpose of extracting them.

Callahan v. James, 141 Cal. 291.

See Smith v. Hill, 89 Cal. 122.

3. TOWN SITES LOCATED ON MINERAL LANDS- -EFFECT.

A town site may be located on mineral land.

Rico Townsite, In re, 1 L. D. 556, p. 558.
Townsite of Big Oak Flat, In re, 15 C. L. O. 3.

See Deffeback v. Hawke, 115 U. S. 392.

Town sites may be located on mineral land, but the town-site claimant will hold his claims subject to the rights of the mineral claimant.

Esler v. Townsite of Cooke, 4 L. D. 212, p. 214.

See Mining Co. v. Consolidated. Min. Co., 102 U. S. 167, p. 168.

Steel v. Smelting Co., 106 U. S. 447.

Rico Townsite, In re, 1 L. D. 556, p. 557.

Smith, In re, 7 L. D. 415.

Townsite of Butte, In re, 3 C. L. O. 131.

Vizina Consol. Min. Co., In re, 9 C. L. O. 92.

Papina v. Alderson, 10 C. L. O. 52.

4. EXISTING MINING RIGHTS PROTECTED.

Congress intended by this section to preserve existing rights to known mines of gold, silver, cinnabar, or copper, and to known mining claims and possessions as against any assertion of title thereto by virtue of conveyances received under the town-site act and not to leave the title of purchasers on town sites to be disturbed by future discoveries.

Davis v. Weibbold, 139 U. S. 507, p. 525.

Cowell v. Lammers, 21 Fed. 200.

Northern Pac. R. Co. v. Barden, 46 Fed. 592, p. 602.

Plymouth Lode, In re, 12 L. D. 513, p. 515.

Smith v. Hill, 89 Cal. 122, p. 126.

Loney v. Scott, 57 Oreg. 378, p. 383.

The provisions of this section prohibiting the acquisition of title to mines in town sites are to be read in connection with the clause protecting existing rights to mineral veins and with the qualification accompanying exceptions in acts of Congress of mineral lands from grant or sale.

Davis v. Weibbold, 139 U. S. 507, p. 518.

The proviso of this section was inserted in pursuance of the usual policy of reservation and exception of lands valuable for minerals and to prevent the acquisition of title to such lands under the provisions of the town-site act.

Hawke v. Deffeback, 4 Dak. 20, p. 33.

5. TITLE TO MINERAL LANDS NOT ACQUIRED UNDER. See Sec. 2386, p. 1354.

Under this and the succeeding sections no title from the United States to land known at the time of the sale to be valuable for its mines of gold, silver, cinnabar, or copper can be obtained under the preemption or homestead laws or the town-site laws, or in any other way than as prescribed by law, except in the States of Michigan, Wisconsin, Minnesota, Missouri, and Kansas.

Deffeback v. Hawke, 115 U. S. 392, p. 404.

Colorado Coal & Iron Co. v. United States, 123 U. S. 307, p. 309.

Davis v. Weibbold, 139 U. S. 507, p. 517.

Northern Pac. R. Co. v. Barden, 46 Fed. 592, pp. 603, 614, 616.
Spong, In re, 5 L. D. 193.

Pike's Peak Lode, In re, 10 L. D. 200.

Pacific Slope Lode, In re, 12 L. D. 686.

Cameron Lode, In re, 13 L. D. 369.

Duffy Quartz Mine, In re, 18 L. D. 259, p. 260.

Pacific Slope Lode v. Butte Townsite, 25 L. D. 518, p. 521.

Lalande v. Townsite of Saltese, 32 L. D. 211, p. 213.

South Comstock Gold, etc., Min. Co., In re, 2 C. L. O. 146.
Rico Townsite, In re, 1 L. D. 556.

Largey, In re, 17 C. L. O. 3, p. 4.

Kansas City Min., etc., Co. v. Clay, 3 Ariz. 326, p. 330.

Silver Bow Min., etc., Co. v. Clark, 5 Mont. 378, p. 416.

Talbott v. King, 6 Mont. 76, p. 99.

Golden v. Murphy, 31 Nev. 395, p. 408.

United States v. San Pedro, etc., Co., 4 N. Mex. 225, p. 294.

See Laney, In re, 9 L. D. 83.

The title to known valuable mineral land can not be acquired under the town-site laws, but this does not militate against the validity of an entry so far as it affects property other than mineral lands.

Deffeback v. Hawke, 115 U. S. 392, p. 406.

Olive Land & Dev. Co. v. Olmstead, 103 Fed. 568, p. 577.

Smoke House Lode, In re, 4 L. D. 555, p. 556.

Lalande v. Townsite of Saltese, 32 L. D. 211, p. 213.

Reilly v. Berry, 2 Ariz. 272, p. 274.

Old Dominion Copper Min., etc., Co. v. Haverly, 11 Ariz. 241, p. 253.

While town-site laws permit occupation and entry of lands in mineral regions, they expressly provide that no title shall be acquired thereunder to the precious metals.

Townsite of Eureka Springs v. Conant, 8. C. L. O. 3, p. 4.

Lands valuable for placer mining claims are not subject to entry for town-site pur

poses.

Townsite of Deadwood, In re, 8 C. L. O. 153, p. 155.

Townsite of Leadville, In re, 9 C. L. O. 71.

See Van Ocker, In re, 9 C. L. 0. 71.

No title can be acquired under these statutes to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws in town sites, and the title to the surface of such town sites as were not occupied by any person was in the United States to be held in trust for the inhabitants of the town or city, and the town sites were not thereafter subject to location as placer mining claims. Ritter v. Lynch, 123 Fed. 930, p. 931.

6. EXTENT OF PROHIBITION AGAINST TITLE TO MINES.

The provisions of this section merely prohibit the passage of title under the provisions of the town-site laws to mines of gold, silver, cinnabar, or copper, which are known to exist at the time of the issue of the town-site patent, and to mining claims 56974°-Bull. 94, pt 2-15—35

and mining possessions where proceedings have been taken under the laws and customs of miners rendering them valid and creating property rights in the holder, and not to prohibit the acquisition for all time of mines which then lay buried in the depths of the earth.

Davis v. Weibbold, 139 U. S. 507, p. 518.

Northern Pac. R. Co. v. Barden, 46 Fed. 592, p. 600.

Kansas City Copper Min., etc., Co. v. Clay, 3 Ariz. 326, p. 332.

Old Dominion Copper Min., etc., Co. v. Haverly, 11 Ariz. 241, p. 253.
See Olive Land & Dev. Co. v. Olmstead, 103 Fed. 568, p. 577.

7. MINERAL CHARACTER OF LAND- -DETERMINATION AND JURISDICTION.

The provision that no title shall be acquired in town sites to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws, imports only that the provisions by which the title to lands in such town sites are transferred shall not be the means of passing the title to mines of gold, silver, cinnabar, or copper in the land, or to valid mining claims or possessions thereon. Davis v. Weibbold, 139 U. S. 507, p. 518.

A known lode claim based on a recorded location embraced in a town-site patent providing that no title shall be acquired to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession, terminates the jurisdiction of the department over the ground embraced in the lode claim.

Pacific Slope Lode, In re, 12 L. D. 686, p. 688.

Pike's Peak Lode, In re, 14 L. D. 47,

p. 49.

The question of whether or not lands located under any of the provisions of the land laws are mineral lands is to be determined by the Land Department, to which the administration of land laws has been committed.

Board of Education v. Mansfield, 17 S. Dak. 72, p. 78.

8. MINERALS IN TOWN-SITE LANDS OPEN TO EXPLORATION.

When mines are found in public lands belonging to the United States, whether within or without town sites, they may be claimed and worked, provided they do not interfere with existing rights of others gained by prior occupation.

Steel v. Smelting Co., 106 U. S. 447, p. 450.

Unoccupied public land embraced within a town site is not exempt from location and sale for mining purposes, but its exemption is only from settlement and sale under the preemption laws.

Steel v. Smelting Co., 106 U. S. 447, p. 449.

Deffeback v. Hawke, 115 U. S. 392, p. 406.

See Rankin, In re, 7 L. D. 411.

When mines are found in the public lands, whether within or without town sites, they may be claimed and worked where the existing rights of others from a prior occupation are not interfered with.

Davis v. Weibbold, 139 U. S. 525; 11 Sup. Ct. 635.

Northern Pac. R. Co. v. Barden, 46 Fed. 592, p. 605.

Mines of precious metals found in lands belonging to the United States, whether within or without town sites, may be claimed and worked if not otherwise occupied. Poire v. Wells, 6 Colo. 406, p. 411.

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