These Montana cases were not appealed to the supreme court of the United States, but were referred to by that tribunal in the case of Davis v. Weibbold;1 and the language then used would seem to imply a sanction to the doctrine announced by the supreme court of Montana.2 The force of this rule has been recognized in a recent case by the court of appeals of Colorado, although the question there raised in this respect was merely collateral to the main issue. This court, speaking through Presiding Judge Reed, says: "The first contention of appellant is that the court "erred in refusing to allow the plaintiff to prove that the "discovery of the Lady B' was within the patented limits. "of the town of Blackhawk. All the evidence shows that "the existence of a mineral-bearing vein at the place the "discoveries were made was known long previous to the "application for a receipt of the title by the town. That under the statute was sufficient. The town took no title." 3 This rule is necessarily based upon the theory that the land department had no jurisdiction to convey to the townsite that which had already been withdrawn from the public domain by appropriation under the mining laws. The results reached seem illogical. With the exception of the case of incorporated cities and towns, townsite entries can not be permitted upon mineral lands. The patent when issued is entitled to the presumption that the lands are non-mineral. As the supreme court of the United States has said, the presumption in favor of the validity of a patent is so potential and efficacious that it has been frequently held by the supreme court of the United States that if under any circumstances in the case the patent might have been rightfully issued, it will be presumed on collateral attack that such circumstances existed." 1139 U. S. 530. King . Thomas, 6 Mont. 409. See, also, decision of Judge De Witt in Chambers v. Jones, 42 Pac. 758; Tombstone Townsite Cases, 15 Pac. 26; Blackmore v. Reilly, 17 Pac. 72. 3 Moyle v. Bullene, 44 Pac. 69, 71. St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 646. See, also, dissenting opinion in Iron S. M. Co. v. Mike & Starr Co., 143 U. S. 394, 407. If there existed at the time of the townsite entry a mine or valid mining claim within the limits of the town, it necessarily follows that some of the lands, at least, were mineral, and the patent was to such extent wrongfully issued. If it is necessary to determine the fact of the existence or non-existence of mineral in paying quantities within the limits of a townsite before patent could issue, why is the patent not a judgment that it is non-mineral,therefore, that no mine or valid mining claim exists? The question seems to us uncomfortably close. The difficulties of the situation were appreciated by the supreme court of the United States in a case involving a claimed known lode within a prior placer patent to which the placer applicant asserted no right at the time of filing his application, a junior patent to the lode claimant having been issued. The supreme court thus announced its 66 views: "We are not ignorant of the many decisions by which "it has been held that the rulings of the land officers in "regard to the facts on which patents for lands are issued "are decisive in actions at law, and that such patents can only be impeached in regard to those facts by a suit in "chancery, brought to set the grant aside. But these are "cases in which no prior patent had been issued for the "same land, and where the party contesting the patent had "no evidence of a superior legal title, but was compelled to "rely on the equity growing out of frauds and mistakes in "issuing the patent to his opponent. "Where each party has a patent from the government, "and the question is as to the superiority of the title under "those patents, if this depends upon extrinsic facts not "shown by the patents themselves, we think it is competent "in any judicial proceeding where this question of superi"ority of title arises to establish it by proof of these facts. "We do not believe that the government of the United "States, having issued a patent, can, by the authority of its "own officers, invalidate that patent by the issuance of a "second one for the same ground.' From the doctrine as announced by the majority court in this case, the chief justice and Justice Brewer dissented. Р 1Iron S. M. Co. v. Campbell, 135 U. S. 286, 292. Justice Brewer, speaking for the minority of the court, said: "From Johnson v. Towsley (13 Wall. 72) to the present "time, the uniform ruling of this court has been that ques"tions of fact passed upon by the land department are conclusively determined, and that only questions of law "can be brought into court. The right to this patent de"pends solely upon these two questions of fact, which were "considered by the land office when the original patent (C was issued. I think that its determination was con"clusive." In a later case before the same tribunal,' the lode claimant had no patent, but rested his case upon a location made after the final entry of the placer claim, but upon a lode which, it was claimed, was known to exist at the time of the application for the placer patent, and which was not included in the application. The right to establish these facts by extrinsic evidence, and thus to limit the operation of the placer patent, was upheld by the majority of the court. The minority of the court, speaking through Justice Field, thus presented its views: "I am unable to agree with my associates in the disposal of this case. The decision and the opinion upon "which it is founded will do much, in my judgment, to "weaken the security of patents of the United States for "mineral lands, and leave them open to attack and over"throw upon mere surmises, notions, and loose gossip of the neighborhood, which ought not to interfere with any rights of property resting upon the solemn record of the government.' 66 66 66 In Dahl v. Raunheim," Judge Field, speaking for the entire court, in a case of the same class, says: "That it was placer ground is conclusively established "in this controversy against the defendant by the fact no "adverse claim was asserted by him to the plaintiff's appli"cation for patent of the premises as such ground. That question is not now open to litigation by private parties "seeking to avoid the effect of plaintiff's proceedings." 66 1Iron S. M. Co. v. Mike & Starr Co., 143 U. S. 394, 407. an actor. In perfecting mining locations the government is not It assures to the explorer the right to his mining location, but it does not surrender the right to determine for itself the qualifications of the locator, the fact of his discovery, his compliance with the law, and the character of the land. A judgment by a court of competent jurisdiction in proceedings brought upon adverse claims. does not conclude the government as to these matters. There is no notice brought to the attention of the government of the existence of mining locations or known lodes prior to the application for patent. The only record made is with an officer who has no connection with the land department, and who owes no responsibility to the government. And yet a townsite patent issued by the government may be assailed in an action between individuals, and its operation defeated by showing facts the existence of which the government neither actually nor constructively could have any knowledge, unless it was a part of its duty to ascertain them when the townsite patent was applied for; and if it was a part of its duty, the patent should be conclusive evidence that that duty was performed. To say that a perfected mining claim is a grant from the government, is true in one sense; but it does not follow that in establishing the existence of such a grant the government has no voice. It is not a grant in the sense that the government has absolutely parted with its title. It does not seem right that where only one patent is issued, and where the government has not attempted to issue a second one covering any portion of the premises described in the first, that the operative effect of the prior patent should be limited by judgments in actions to which the government is in no sense a party. It would seem that the remedy in such cases should be by action instituted by the government to vacate the patent, after notice of the facts brought to its attention. But that the law as applied to the particular class of cases under consideration is different, we cannot, in the light of the adjudicated cases, deny. While instances are found in the books of the issuance by the land department of a prior patent to a townsite and a subsequent one to the mineral claimant, that department in later years has taken the position that its jurisdiction is exhausted by the issuance of the prior patent, and until that is set aside it is not authorized to issue the junior mineral patent within the limits of the townsite.' If the lode or mining claim is by operation of law reserved out of the patent, it certainly follows that the department may subsequently issue a patent for the thing so reserved. This is the rule now followed by the department with reference to lodes known to exist within patented placers; and we cannot see, in the the light of the law as expounded by the courts, why the same doctrine should not apply to lodes or claims existing at the date of the townsite entry within the townsite limits. 181. Nature of Indian title. The scope of this treatise neither calls for nor permits elaborate discussion of the legal or ethical relationship existing between the government of the United States and the "wards of the nation," as the Indian tribes within our borders are popularly styled. 1See, ante, 173, p. 212; Pacific Slope Lode, 12 L. D. 686; Cameron Lode, 13 L. D. 369; Protector Lode, 12 L. D. 662; Plymouth Lode, Id. 513. 2South Star Lode, 20 L. D. 204 (on review); Butte & Boston M. Co., 21 L. D. 125, reversing Pike's Peak Lode, 14 L. D. 47, and Com'rs' decision, South Star Lode, 17 L. D. 280. |