time of sale to be valuable for minerals" is used to prevent any doubt being cast upon titles to lands afterwards found to be different in their mineral character from what was supposed when the entry of them was made and the patent issued. Deffeback v. Hawke, 115 U. S. 392, p. 405. Smoke House Lode, In re, 4 L. D. 555. Spong. In re, 5. L. D. 193. Abercombie, In re, 6 L. D. 393. Aspen Consol. Min. Co. v. Williams, 27 L. D. 1, p. 15. Reilly v. Berry, 2 Ariz. 272, p. 274. Kansas City Min., etc., Co. v. Clay, 3 Ariz. 326, p. 331. Richards v. Dower, 81 Cal. 44, p. 51. Old Dominion Copper Min., etc., Co. v. Haverly, 11 Ariz. 241, p. 253. See Noyes v. Mantle, 127 U. S. 348. United States v. Iron Silver Min. Co., 128 U. S. 673. Iron Silver Min. Co. v. Mike & Starr, etc., Min. Co., 143 U. S. 394. Dower v. Richards, 151 U. S. 658. Silver Bow Min., etc., Co. v. Clark, 5 Mont. 378. Talbott v. King, 6 Mont. 76. Title from the United States to land known at the time of sale to be valuable for mineral deposit can not be obtained under the preemption, homestead, or town-site laws, but the land must be known at the time to be valuable for mineral or the rule does not apply, and a change in the condition occurring subsequently by the new discovery of a mineral will not affect the title as it passed at the time of the sale. Harkrader v. Golds'ein, 31 L. D. 87, p. 94. Colorado Coal & Iron Co. v. United States, 123 U. S. 307, p. 328. Kern Oil Co. v. Clotfelter, 30 L. D. 583. Kern Oil Co. v. Clarke (on review) 31 L. D. 288. Gray Eagle Oil Co. v. Clarke (on review), 31 L. D. 303. Lands known at the time of sale to be valuable for minerals can not be obtained under town-site laws. A town-site entry can not be made upon land claimed and held for mineral purposes and such an entry should not be allowed until after due notice to the mineral claimants, and the allowance of such an entry does not impair the right of such mineral claimant. Goldstein v. Juneau Townsite, 23 L. D. 417, p. 419. . The terms "lands known to be valuable for mineral," or "for mineral deposits,” or "known mines," or "land containing known mines," are equivalent in meaning, and all such lands and mines are excluded from entry and patent under the townsite laws, and title to such lands does not pass if they were known to be of that character when the town-site entry was made. Brady v. Harris, 29 L. D. 426, p. 433. See Steel v. Smelting Co., 106 U. S. 447, p. 449. Davis v. Weibbold, 139 U. S. 507, p. 524. Dower v. Richards, 151 U. S. 658, p. 663. A town-site entry on lands mineral in character should be canceled, but the survey and entry may be amended and patent issued accordingly. Harkrader v. Goldstein, 31 L. D. 87, p. 89. See Goldstein v. Juneau Townsite, 23 L. D. 417. Lands valuable for placer mining claims are not subject to entry for town-site purposes, as the use of the entire surface is necessary to the development of placer claims. Townsite of Deadwood, In re, 8 C. L. O. 18, p. 19. Townsite of Deadwood, In re, 8 C. L. O. 153, p. 155. See Van Ocker, In re, 9 C. L. O. 71. D. TOWN SITES. 1. RIGHT OF CITIZENS TO USE AND BUILD. 2. MINERALS OPEN TO EXPLORATION. 3. MINING LOCATIONS PERMITTED. 4. POSSESSION OF MINERAL CLAIMANT PROTECTED. 6. MINING LOCATION AS NOTICE. 7. TITLE SUBJECT TO MINERAL RIGHTS AND USES. 1. RIGHT OF CITIZENS TO USE AND BUILD. The citizens of a town have the same right to build dwelling houses upon the public domain as others have to locate mining claims. Bonner v. Meikle, 82 Fed. 697, p. 699. 2. MINERALS OPEN TO EXPLORATION. This section and others relating to town sites recognize the possession of mining claims within their limits and forbid the acquisition of any mine of gold, silver, cinnabar, or copper within them under proceedings by which title to other lands within them is secured, and leaves the mineral deposits within the town site open to exploration and the land open to occupation and purchase in the same manner as other lands containing such minerals. p. 450. Steel v. Smelting Co., 106 U. S. 447, Pierce v. Sparks, 4 Dak. 1, p. 2. Silver Bow Min., etc., Co. v. Clark, 5 Mont. 378, p. 516. Valuable mineral deposits in town-site lands outside of the patent are open to exploration and purchase the same as those in lands outside of the town site. Davis v. Weibbold, 139 U. S. 507, p. 529. Where land is mineral in character it is subject to location under the provisions of the mining law without reference to the relative value of a portion of the tract for town-site purposes. Kemp v. Starr, 6 C. L. O. 3, p. 4. See Townsite of Deadwood, In re, 8 C. L. O. 18. This, with other sections, recognizes the possession of mining claims within townsite limits and forbids the acquisition of any mine of gold, silver, cinnabar, or copper by town-site claimants, and this leaves the mineral deposits within town sites open to exploration the same as such deposits on the public domain. Poire v. Wells, 6 Colo. 406, p. 411. No title can be acquired under the provisions of the town-site law to lands known to be valuable for minerals, but such lands are free and open for exploration, occupation, and purchase for mining purposes. Hawke v. Deffeback, 4 Dak. 20, p. 36. 3. MINING LOCATIONS PERMITTED. Land embraced within a town site on the public domain and unoccupied is not exempt from location and sale for mining purposes; its exemption is only from settlement and sale under the preemption laws of the United States. Steel v. Smelting Co., 106 U. S. 447, p. 449. Murray v. Buol, 6 Mont. 397, p. 408. A miner may acquire for good a right to a mining claim within the limits of the town site, as though his discovery was in a wilderness remote from all settlements, and he is equally entitled to a patent therefor. Steel v. Smelting Co., 106 U. S. 447, p. 449. Hawke v. Deffeback, 4 Dak 20, p. 35. Silver Bow Min., etc., Co. v. Clark, 5 Mont. 378, p. 516. See Rankin, In re, 7 L. D. 411. The fact of a town-site settlement on a placer claim and a protest by such settlers will not defeat an entry if it is determined that the land in question is valuable as a placer mining claim. Ferrell v. Hoge, 18 L. D. 81, p. 83. 4. POSSESSION OF MINERAL CLAIMANT PROTECTED. This section, in connection with section 2392, must protect a mineral claimant in his possession of a vein or lode, together with the surface as recognized by law. Rico Townsite, In re, 1 L. D. 556, p. 558. This section protects the possession of the miner as against the title to town lots and subjects such lots to the necessary use of the mineral vein, and is not in conflict with any later statute on the same subject. Silver Bow Min., etc., Co. v. Clark, 5 Mont. 378, p. 411. King v. Thomas, 6 Mont. 409, p. 411. Chambers v. Jones, 17 Mont. 156, p. 162. Where a mineral claimant is in possession of a mineral vein, such possession is recognized as a valid one to the full extent of the possession and the necessary use thereof, but if at the time of the taking of a town lot the mineral claimant's rights exist, the lot owner will take his lot subject to the rights of such mineral claimant, and although the lot owner may hold his title and receive a patent under the town-site authorities, still the title of the mineral claimant is not different from what it was before the issue of the town-site patent, but the superiority of the relative rights will depend on priority of location. Rico Townsite, In re, 1 L. D. 556, p. 558. The possession referred to in this section means the same as a possession held under the mining statutes. Townsite of Eureka Springs v. Conant, 8 C. L. O. 3, p. 4. 5. MINERAL CHARACTER OF LAND-PROOF. This section affords a mineral claimant no relief where he fails to show a valid discovery of mineral and where he had not made a valid location under the mining laws, and was not, in fact, possessed of a mineral vein, and he can not restrain a townsite claimant from interfering with or trespassing upon a pretended mining claim. Regan v. Whittaker, 14 S. Dak. 373, p. 382. Where small veins or stringers of quartz bearing gold and silver in varying quantities have been discovered in land claimed and located under the mining laws, and such land is on a definite mineral belt and in close proximity to other mines, and the evidence indicates that with further development a paying mine might be established, such land is prima facie mineral in character and is not subject to entry for town site purposes. Goldstein v. Juneau Townsite, 23 L. D. 417, pp. 421, 422, 423. Discovery Placer Claim v. Murry, 25 L. D. 460, p. 464. Land not known to be mineral is not "public mineral land" within the meaning of the statute. Smith v. Hill, 89 Cal. 122, p. 129. 6. MINING LOCATION AS NOTICE. The location of a mining claim, and the marking of the exterior boundaries and the issuance of a patent for the same, is notice to the Government and to the public that the patentee or his grantee is the owner of all the exclusive rights and privileges in such tract of land as well as to the vein or lode therein, and is prior and superior to a title by a patent under the town-site act. A town-site claimant is charged with notice of the record of a mineral claim recorded in the proper record. Goldstein v. Juneau Townsite, 23 L. D. 417, p. 419. 7. TITLE SUBJECT TO MINERAL RIGHTS AND USES. Where mineral veins are possessed and the possession is recognized by local authority the title to town lots is acquired subject to such recognized possession and the necessary use thereof. Deffeback v. Hawke, 115 U. S. 392, p. 403. Lalande v. Townsite of Saltese, 32 L. D. 211, p. 213. The title to town lots is subject to the possession of any mineral vein where such possession is recognized by local authority, and no title can be acquired by an owner of a town lot to any mine of gold, silver, cinnabar or copper, or to any valid mining claim held under existing laws. Larned v. Jenkins, 113 Fed. 634, p. 635. The title to town lots is subject to the recognized possession and use of existing mining locations. Townsite of Coalville, In re, 4 C. L. O. 46, p. 47. The title to town lots acquired under town-site locations is subject to the recognized possession and necessary uses of mineral veins or mining claims in possession of locators. Pacific Slope Lode v. Butte Townsite, 25 L. D. 518, p. 521. Overruling as to any conflict Pacific Slope Lode, In re, 12 L. D. 686, and Cameron Lode, In re, 13 L. D. 369. The title to a town lot as a part of a town site located upon mineral lands in accordance with this section is subordinate to the rights of the locator of a mining claim under 2322 R. S., and where the mineral claimant desires to use the ground for the purpose of sinking a shaft, or for the erection of buildings required in carrying on his mining enterprise, or for reduction works, or for a mill site, in any such case his rights are superior to that of the town lot claimant and the quasi title of the lot owner must give way to the title of the mineral claimant, but these relative rights depend on priority of location and the recognized right of a town lot owner is not to be destroyed or affected by the subsequent discovery of mineral. Rico Townsite, In re, 1 L. D. 556, p. 558. This section does not limit the title of the locator of a mining claim under section 2319 R. S., to the necessary use of the ground located for mining purposes only. Talbott v. King, 6 Mont. 76, p. 99. A miner is entitled to a grant of the entire surface ground along the whole line of the lode claimed by him with a width of 100 feet without regard to the acquired surface rights of others, and the mining laws in this respect must be harmonized with the townsite laws. Townsite of Central City, In re, 2 C. L. O. 150. E. TOWN-SITE OWNER. 1. RIGHTS AS AGAINST MINERAL CLAIMANT. 1. RIGHTS AS AGAINST MINERAL CLAIMANT. A possessory right to town site property is sufficient to prevent the location of a mining claim thereon by a third person. Bonner v. Meikle, 82 Fed. 697, p. 699. Where persons locate upon and improve town-site lots in good faith and under the belief that the land was not mineral their rights should not be disturbed by the locator of a mining claim without clear and satisfactory proof that within the limits of such mining location there had been found a vein or lode which, in its natural course or direction, would give the locator a right to all the surface ground within the limits of his location. Bonner v. Meikle, 82 Fed. 697, p. 704. The relative rights of occupants of town sites and mineral claimants must depend on priority of occupation, but the rights of such occupants are recognized by the customs and usages of the country as well as by the statute. Hickey, In re, 3 L. D. 85. See Rico Townsite, In re, 1 L. D. 556. The occupation of mineral lands for the purpose of a town lot is of no effect as against a valid mining claim and no rights or equities flow therefrom. Talbott v. King, 6 Mont. 76, p. 101. See Murray v. Buol, 6 Mont. 397. Because of the fact that all valuable mineral deposits in lands belonging to the United States, whether surveyed or unsurveyed, are free and open to exploration and purchase, and the lands on which they are found to occupation and purchase, the fee is indivisible, and either the mining claimant or the town-site occupant is entitled to it to the exclusion of the other. Townsite Clause, In re, 5 L. D. 256. See Deffeback v. Hawke, 115 U. S. 392. A party claiming a possessory title and priority of actual possession of a town site lot can not maintain ejectment against a patentee or his grantee of the same lot as a mining claim. Steel v. Smelting Co., 106 U. S. 447, p. 454. Silver Bow Min., etc., Co. v. Clark, 3 Mont. 378. Talbott v. King, 6 Mont. 76. Murray v. Buol, 6 Mont. 397. There is no conflict between the rights flowing from a mining location and from a town-site patent, as the titles are entirely separate and distinct. Chilberg v. Consolidated Min. Co., 3 Alaska 235, p. 240. |