entry under the mining laws, except coal and iron, where these substances are excepted out of the mineral reser vation. (5) Mineral lands within either the primary or indemnity limits of railroad grants, prior to patent or certification, belong to the public domain, and are open to exploration and purchase under the mining laws, the same as any other public mineral lands. ARTICLE V. TOWNSITES. 166. Laws regulating the entry of townsites. department prior to the act of March 3, 1891. 167. Rules of interpretation ap- ? 172. Section sixteen of the act of plied to townsite laws. 168. Occupancy of public mineral lands for purposes of trade or business. 169. Rights of mining locator upon unoccupied lands within unpatented townsite limits. March 3, 1891, is limited in its application to incorporated towns and cities. 173. The object and intent of section sixteen of the act of March 3, 1891. 174. The act of March 3, 1991, not retroactive. 170. Prior occupancy of public 175. Effect of patents issued for mineral lands within un- 171. Correlative rights of mining lands within townsites. 176. What constitutes a mine or valid mining claim within the meaning of section twenty-three hundred and ninety-two of the Revised Statutes. 177. In what manner may a townsite patent be assailed by the owner of a mine or mining claim. 2166. Laws regulating the entry of townsites.— The laws of the United States providing for the reservation and sale of townsites on the public lands are found in title thirty-two, chapter eight, of the Revised Statutes, sections twenty-three hundred and eighty to twenty-three hundred and ninety, supplemented by section sixteen of the act of March 3, 1891, entitled "An act to repeal timber-culture "laws, and for other purposes.' These laws provide three methods of acquiring title to town property on the public domain: (1) Where the president of the United States has directed the reservation provided for by section twenty-three hundred and eighty of the Revised Statutes; (2) In cases where towns have already been established, or parties desire to found a town under the provisions of section twenty-three hundred and eighty-two; (3) Under section twenty-three hundred and eightyseven, by the terms of which the entry of land settled and occupied as a townsite may be made by the corporate authorities, if the town be incorporated, or, if unincorated, by the county judge, for the use and benefit of the several occupants. We have no particular concern with townsites falling within sections twenty-three hundred and eighty or twentythree hundred and eighty-two. Section twenty-three hundred and eighty-seven is but a restatement or codification of the law as it existed at the time of the revision.2 It is under this section and the acts from which it was framed that most of the flourishing towns of the west have applied for and received patents, and it is the only one of the three methods of acquiring title to town property on the public lands which requires particular consideration at our hands, although the principles of law discussed apply to all classes of townsites, by whatsoever method they are sought to be acquired. Section twenty-three hundred and eighty-seven of the Revised Statutes is as follows: 126 Stats. at Large, 1095. 2 Act of March 2, 1867, 14 Stats. at Large, 541; Act of June 8, 1868, 15 Stats, at Large, 67. 3 Public Domain, 298, 299. "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 execu"tion 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 legis"lative authority of the state or territory in which the "same may be situated." The townsite acts and the chapter of the Revised Statutes into which their provisions are incorporated, contain certain restrictions and limitations upon the subject of mineral lands, which are necessary to be considered for the purpose of obtaining a proper understanding of the adjudicated cases, and to enable us to draw correct conclusions. as to the rules of interpretation to be applied. These restrictions and limitations are as follows: Section twenty-three hundred and eighty-six of the Revised Statutes provides that,— "where mineral veins are possessed, which posses"sion 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; but nothing contained in "this section shall be so construed as to recognize any "color of title in the possessors for mining purposes as against the United States." This is but a re-enactment of the proviso contained in the act of March 3, 1865, and, of course, its original enactment antedates all legislation of congress, granting in express terms the right to explore and acquire by location any class of public mineral lands. Considering the state of the law on the subject of this class of lands at the time 113 Stats. at Large, 530. of the revision of the federal statutes (December, 1873), it would seem that this section, framed to apply to conditions which no longer existed, was superfluous, and might with all propriety have been omitted. Since the original act was passed, congress, by its legislation, has given to valid mining locations the status of legal estates. As the law now stands, no possession of public mineral lands can be lawfully recognized by local authority which possession is not acquired and held under the sanction of the general mining laws. So far as an intelligent interpretation of the townsite laws is sought, under existing conditions, section twenty-three hundred and eighty-six performs but little, if any, function beyond that of an historical landmark or a link in the chain of evolution. The act of March 2, 1867, entitled "An act for the relief "of the inhabitants of cities and towns upon public lands," contained the following provision: "No title shall be acquired under the foregoing provis"ions of this chapter to any mine of gold, silver, cinnabar, 'or copper." At the time this act was passed, the first mining act of July 26, 1866, was in full force, which declared that the mineral lands of the public domain should thereafter be free and open to exploration and occupation, and provided for the acquisition of title to veins, or lodes, of quartz or other rock in place bearing gold, silver, cinnabar, and copper. It is obvious that the townsite act of 1867 was framed in the light of the first mining act. The act of June 8, 1868, added to the above quoted provisions of the act of March 2, 1867, the following clause: or to any valid mining claim or possession held "under existing laws." The foregoing provisions of the two acts were united and incorporated into the Revised Statutes, and are embodied in section twenty-three hundred and ninety-two of 114 Stats. at Large, 541. 215 Stats. at Large, 67. the chapter relating to townsites, which now reads as follows: "SEC. 2392. No title shall be acquired under the fore"going provisions of this chapter to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or pos"session held under existing laws." It may be noted that the mining act of May 10, 1872, which was in force when the Revised Statutes went into 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. As thus outlined, these laws stood, 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),' 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 incor"porated 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, cop"per, or lead, or to any valid mining claim or possession "held under existing law. When mineral veins are pos"sessed 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 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; provided, that no entry shall be made by such mineral vein claimant for "surface ground where the owner or occupier of the surface 126 Stats. at Large, 1095. N |