ground shall have had possession of the same before the inception of the title of the mineral vein applicant."

To what extent this act is an innovation upon the system theretofore existing, and how far the rules of law theretofore established by the current of judicial authority are strengthened, weakened, or have become obsolete, will be noted as we proceed.

It appears, however, that the act is limited in its application to incorporated cities or towns, and its provisions do not apply to cases of townsite entries made by the county judge or the judicial officer performing his functions for the use and benefit of the occupants, or entries made by trustees appointed by the secretary of the interior. In enumerating the minerals, the act adds lead to the category, as found in section twenty-three hundred and ninety-two of the Revised Statutes.

167. Rules of interpretation applied to townsite laws. It is not to be inferred from the caption to this section that in construing the townsite laws we are authorized or required to invoke any rules of interpretation peculiar to this branch of the public land laws. We are called upon simply to apply general rules, and note the instances where special application of these rules to the laws under consideration has been made by the courts.

The townsite laws, as they now exist, consist simply of a chronological arrangement of past legislation, an aggregation of fragments, a sort of "crazy quilt," in the sense that they lack harmonious blending. This may be said truthfully of the general body of the mining laws. The rules adopted for the interpretation of the one apply with equal force to the other.

We have endeavored to formulate these rules in a preceding section. We may supplement these with another rule specially applicable; i. e. the townsite laws are to be read and construed in connection with all the existing legislation of congress regulating the sale and disposal of

1 See, ante, 96.

the public lands-that is, these laws are to be considered with all other laws which are essentially in pari materia.

168. Occupancy of public mineral lands for purposes of trade or business.- Important mineral discoveries in new quarters, however remote from civilized centers, are invariably followed by a large influx of population. The advance guard sets its stakes upon the most convenient spot, erects tents, or constructs primitive habitations, which form the nucleus of the future town. As was said by Judge Field, speaking for the supreme court of the United States,

"Some of the most valuable mines in the country 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 neighborhood, and the consequent organization of some form of local govern"ment for the protection of its members. Exploration in the vicinity for other mines is pushed in such case by "new-comers with vigor, and is often rewarded with the discovery of valuable claims."1

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That conflicts should arise between mineral claimants and occupants of lands for purposes of business and trade in the newly discovered mineral regions is but natural. Frequently these controversies are of an aggravated nature, and resort to force is a matter of common occurrence, particularly so before the organization of any form of local government. But eventually the more important ones find their way into the courts, whose decisions have resulted in establishing certain definite rules of law, governing the respective rights of the miner and the merchant within the limits of the settlement. These limits are not always

Steel . St. Louis Smelting Co., 106 U. S. 447, 449; Deffeback v. Hawke, 115 U. S. 392, 406.

well defined. Until application is made to enter and purchase the townsite, the exact area which may properly be considered as within the site of the future town, may be limited by the extent of actual occupancy. In some instances, some enterprising individual surveys a tract of land into lots and blocks, streets and alleys, thus giving a semblance to a claim within the exterior limits of the survey. When such town is incorporated, the territorial limits over which municipal jurisdiction is asserted are, of course, defined by the act of incorporation. When application is made to enter the townsite by the town authorities, if incorporated, or by the county judge, if unincorporated, the area which may be thus entered will depend upon the number of inhabitants, the maximum area allowed being twenty-five hundred and sixty acres.1

It frequently happens that a large portion of this area, as finally entered and patented, is unoccupied, and remains so indefinitely. We are called upon to determine the respective rights of the two classes of claimants within the asserted limits of the townsite, both before and after patents are issued to one or the other.

169. Rights of mining locator upon unoccupied lands within unpatented townsite limits. It is hardly necessary to state that the owner of a valid and subsisting mining location which had its inception at a time prior to any occupancy within the surface limits of his claim, for purposes of trade or business, cannot be deprived of any of his rights flowing from such location by settlement thereon of later arrivals desiring to engage in commercial traffic or to assist in the founding of a city. The land embraced within the mining location is just as much withdrawn from the public domain as the fee is by a valid grant from the United States under authority. location is a grant from the government.3

1 Rev. Stats., ? 2389.

2 Silver Bow M. & M. Co. v. Clark, 5 Mont. 406.

Such

Butte City Smokehouse Lode Cases, 6 Mont. 397; Belk v. Meagher,

104 U. S. 284; Gwillim v. Donnellan, 115 U. S. 45, 49.

There is no room for a further grant; for the government would have nothing to convey.'

That the mining location is within the claimed or actual. limits of the unpatented townsite is therefore of no moment. As was said by the supreme court of the United States,

"To such claims, though within the limits of what may "be termed the site of the settlement or new town, the "miner acquires as good a right as though his discovery "was in a wilderness.""

170. Prior occupancy of public mineral lands within unpatented townsites for purposes of trade as affecting the appropriation of such lands under the mining laws -The rule prior to the passage of the act of March 3, 1891. In discussing the effect of a prior occupancy of public mineral lands for townsite purposes, upon the right of subsequent appropriation under the mining laws, it is our purpose to first arrive at a correct understanding, if it be possible, of the state of the law as it existed prior to the passage of the act of March 3, 1891. This will enable us to consider "the old law, the mischief, and the remedy" in logical order.

In a subsequent article,3 we have endeavored to state the law, generally, with reference to the rights of mere occupants of public lands without color of title, as against one seeking to appropriate such lands under the mining laws. Much that is there said will apply to the subject presently under consideration, and need not be here. repeated. We deem it sufficient for our present purpose to deal with those cases wherein the courts have had under consideration controversies between mining claimants and prior occupants for the purposes of trade or business-i. e. under the townsite laws.

In reviewing the decisions of the supreme court of the United States upon this and kindred subjects, we meet with

'Silver Bow M. & M. Co. v. Clark, 5 Mont. 406.

*Steel v. St. Louis Smelting Co., 106 U. S. 447, 449; Deffeback v. Hawke, 115 U. S. 392.

'See, post, art. x., ?? 216–219.

apparent contradictions, rendering it difficult to reach satisfactory conclusions. Language employed in one decision, construed literally, cannot be harmonized with expressions found in another. One case does not necessarily overrule the other, as the ultimate results reached are consistent one with the other; but an analysis of the reasoning employed and the terms used in reference to the question. now being considered have a tendency to raise different inferences in different cases.

In none of the reported cases, other than those decided by the land department, do we find the question presented between the two classes of claimants unaided by presumptions flowing from a patent.

In all such cases coming under our observation an attempt has been made to collaterally assail a federal patent, issued to either the townsite or the mineral claimant. In some instances both classes of claimants possessed patents. In all of these cases the operative force of the patent as a judgment, and its conclusiveness upon collateral attack, have rendered the consideration of conditions existing prior to its issuance to a large extent unnecessary. With these preliminary suggestions we proceed to examine the decisions.

The supreme court of the United States has made use of the following language:

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"Land embraced within a townsite on the public domain, "when unoccupied, is not exempt from location and sale for 'mining purposes. Its exemption is only from settlement "and sale under the pre-emption laws of the United "States. . . . The acts of congress relating to townsites 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 proceed"ings by which title to other lands there situated are secured, thus leaving the mineral deposits within the "townsites open to exploration, and the land in which they are found to occupation and purchase in the same manner as such deposits are elsewhere explored and "possessed, and the lands containing them are acquired.