A mill-site claim conflicting with a mining claim for which application for patent has been made, can be protected only by adverse claim filed within the prescribed time. Warren Mill Site v. Copper Prince, 1 L. D. 555 (1882).

If a mill site is timbered, the lawful claimant may cut and remove the timber thereon for the purpose of constructing a mill, reduction works, tramways, or other accessories required in the development of his mining interests. A. B. Page, 1 L. D. 614 (1883).

Under Rev. Stats. 2337 a mill site embraced in an application and entry for a lode claim may include such number of pieces or tracts within the restriction of five acres as may appear to be necessary to the proprietor of the lode claim for mining and milling purposes. J. B. Hoggin, 2 L. D. 755 (1884).

The law requires the posting of notice and plat on the mill site, as well as upon the lode portion of a mining claim. In this case, inasmuch as the failure to post was an oversight, and no adverse right had intervened, and extensive improvements had been made, the requirement was waived. Bailey & Grand View M. & S. Co., 3 L. D. 386 (1885).

Town sites may be located on mineral land, and the town-site claimants will hold subject to the right of mineral claimants, including owners of mill sites on land non-mineral, and not contiguous to their lodes. Esler v. Townsite of Cooke, 4 L. D. 212 (1885).

It is not a valid objection to an application for patent for a mill site that the land contains water, in which a water right may be acquired. It is entirely consistent with the laws of the United States that a tract of land may be covered by the water right of one person and by the settlement, mining, or mill-site claim of another person.

Land not contiguous to the vein applied for as a mill site must be actually used or occupied for mining or milling purposes. If not actually used, the applicant must show such an occupation, by improvements or otherwise, as evidences an intended use. The use of the water from the land in running a smelter on other land is not the use of the land. Charles Lennig, 5 L. D. 190 (1886); Cyprus Mill Site, 6 L. D. 706 (1888).

An entry made on an application covering a lode claim and contiguous mill site, where the proof shows full compliance with the law, except in posting on the mill-site portion of the claim, may be confirmed by the Board of Equitable Adjudication in the absence of an adverse claim, and where the informality was the result of an honest mistake. N. Y. L. & M. Claim, 5 L. D. 513 (1887).

The occupation of land for the purpose of securing the timber therefrom for use in working his lode is not the use or occupation thereof for mining or milling purposes contemplated by Rev. Stats. 2337. “The use of the timber thereon is not the use of the land; neither is the mere naked possession of the tract for the purpose of taking the timber therefrom such an occupancy of the land as is contemplated by the act." Two Sisters Lode and Mill Site, 7 L. D. 557 (1888).

The expenditure of $500 upon the mill site is not a condition precedent to obtaining a patent therefor when the applicant is also the proprietor of a lode, and the mill site is located in connection

therewith. In such case it is only required that the mill site shall be used or occupied for mining or milling purposes.

It is not necessary that the survey of the mill site should be connected with a corner of the public surveys or a mineral monument, if such survey is properly connected with the survey of the lode claimed in connection therewith.

The non-mineral character of the land claimed as a mill site must be established. Alla Mill Site, 8 L. D. 195 (1889).

Land will not be patented as a mill site unless used or occupied for mining or milling purposes. The appropriation of water upon the land claimed as a mill site, and the use of the same beyond the boundaries thereof, is not the use and occupation contemplated by the statute. Iron King M. & M. Site, 9 L. D. 201 (1889).

A quartz mill or reduction works are the only improvements on which an application for a mill site may be based under the last clause of Rev. Stats. 2337. A dam, pen stock, and pipe which are used for driving a water wheel to compress air for the engine and drills used in mining on adjacent lodes are insufficient. Le Neve Mill Site, 9 L. D. 460

(1889).

A duly qualified corporation may obtain title to a mill site under Rev. Stats. 2337. Bay St. G. M. Co. v. Trevillion, 10 L. D. 194 (1890). A mill-site application for non-contiguous ground is not within the statute unless it is used or occupied for mining or milling purposes in connection with the lode in whose application it is included. The construction of a dam, the use of the ground for the purpose of dumping ore, and the intention to build a mill are insufficient. Peru L. & M. Site, 10 L. D. 196 (1890).

The use and occupancy of land for the maintenance of pumping works necessary to the operation of a lode mine is such a use as will authorize entry of the land as a mill site.

"Here we find actual occupation of the land, with lasting and valuable improvements. It is true the company consumes only the water; but it occupies and uses the land in connection with its lode mine, and such use is necessary to the operation of the mine." Sierra Grande M. Co. v. Crawford, 11 L. D. 338 (1890).

A patent will not be issued for a mill site where it appears that it has not been used in connection with the lode in whose application it is included, but has been occupied by another, to whom the applicant had agreed to convey it upon obtaining title. Syndicate Lode Mill Site, 11 L. D. 561 (1890).

The right to a mill site under the second clause of Rev. Stats. 2337 depends upon the existence upon the land of a quartz mill or reduction works.

There is no provision of law by which a mill site can be acquired as additional to or in connection with an existing mill site. Hecla Con. M. Co., 12 L. D. 75 (1891).

That a dam has been built thereon and ditching for a flume for the purpose of in common with improvements on other land furnishing water power for mining and milling purposes, is not the use of the land for mining and milling purposes, and land so improved may not be claimed as a mill site.

Rev. Stats. 2337 does not authorize the entry of a mill site, where the land included therein is intended to be used in common with other mill sites, taken in connection with a like number of lode claims. Mint L. & M. Site, 12 L. D. 624 (1891).

While mill sites are sold under the mining laws (Rev. Stats. 2337), yet they are disposed of as "non-mineral land," and the provision of Rev. Stats. 2336 relative to the priority of title upon the intersection of two or more veins, has no application to mill sites which have been patented and lie across lode claims, separating them into two parts. A lode claim that is divided into two parts by an intersecting patented mill site must be confined to that part which contains the discovery shaft and improvements. Andromeda Lode, 13 L. D. 146 (1891).

The requirements of the statute, where a mill site is claimed in connection with a lode, are: (1) The land must be non-mineral, (2) noncontiguous to the lode, and (3) used or occupied by the proprietor of the lode for mining and milling purposes. The use and improvement of land for the maintenance of a water supply, necessary to the operation of a mine, is such a use and occupancy as will authorize a mill-site entry.

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"A tank, a spring house, and a stone cabin have been erected on the mill site. The tank was built for the storage of water sufficient for operating the mine,' the water was used to develop the mine and for no other purpose."

"In the case at bar, lasting improvements have been made on the land embraced in the mill site, indicating good faith. There is more than the mere use of water; the mill site itself is improved and used, as above seen in connection with the mine.

"Moreover, it is shown that claimant requires the mill site upon which to erect his mill to reduce the ores from the mine.

"Claimant's good faith is manifest, and I think the evidence shows a sufficient compliance with the law, as to the use and occupation of the land, to justify the issuance of patent, which is hereby directed." Gold Springs & Denver City M. S., 13 L. D. 175 (1891).

The building of a tramroad, or the grading of the roadbed therefor, is not such a use or improvement of the land as warrants the allowance of a mill site.1 An application for a mill site cannot be allowed where it appears that the improvements are located on the line between two mill sites, without either location possessing a quartz mill or reduction works independently of the other. Hecla Con. M. Co., 14 L. D. 11 (1892).

The erection and maintenance in good faith of dwelling houses for occupancy by workmen employed for purposes in connection with a mill not on the site is such a use and occupancy of the land as will justify the allowance of a mill-site entry thereof. Satisfaction Extension M. Site, 14 L. D. 173 (1892).

The first clause of Rev. Stats. 2337 contemplates the allowance of a mill-site entry only where the land is used or occupied for mining or milling purposes at the time the application for patent is made. Hudson M. Co., 14 L. D. 544 (1892).

1 It is doubtful whether this extreme position will be maintained, for the build

ing of a permanent tramway is certainly a use of the land for mining purposes.

Rev. Stats. 2337 authorizes the location of mill sites prior to application for patent. It provides that they may be patented" subject to the same preliminary requirements as to survey and notice as are applicable to veins and lodes.' "It will not be denied that the basis of a mineral claim is the due location thereof, and the practice of the Land Department has uniformly been, as I am informed, to require evidence of the due location of the mill site prior to the publication of notice of application for patent therefor." Hargrove v. Robertson, 15 L. D. 499 (1892). Only non-mineral land can be appropriated as a mill site; and an application therefor must be rejected where the land is embraced in a prior railroad grant, which passes non-mineral land. Mongrain v. Northern Pac. R. Co., 18 L. D. 105 (1894).

Non-contiguous land may be patented as a mill site in connection with a lode claim previously patented. Though the statute says the mill site may be included in the application for the lode patent, such a course is not obligatory.

An office and residence for the superintendent, a stable, railroad switch, and storehouse are sufficient improvements, if made in good faith. Eclipse Mill Site, 22 L. D. 496 (1896).

VI. WATER RIGHT CLAIMS.

This subject is treated in Chapter XX., Div. I., under the title "Water Rights on the Public Lands.”

CHAPTER XVI.

CONFLICTING GOVERNMENT GRANTS.

I. Town Site Grants.

IV. Homestead and Pre-emption Grants.
V. Indian Reservations.

II. School Land Grants.

III. Land Grants to Railroads.

WHEN the government has granted the legal title to any of its lands to an individual or corporation, they then become private property, and cannot be the subject of a second grant. The only question that can arise, except that of fraud or mistake, is whether the grant has been made, and of this question the government's conveyance, its patent, is conclusive. If, therefore, mineral land should be claimed under two mineral patents, the question of ownership would be determined by the dates of entry or location. This question has been discussed already in Chap. XIV., Div. III., "Effect of the Patent." But a different question arises where there is a conflict between different kinds of grants, that is, where land is claimed under a title acquired under the mineral laws, and likewise by a grant as a town site, as school land, railroad land, agricultural land, or Indian reservation. To the solution of the difficulty here presented, two complementary principles are applicable and sufficient. A patent for a portion of the public lands issued by the Land Department, in a case where it has jurisdiction, is conclusive of title, and in the absence of fraud indefeasible. But the Land Department has not jurisdiction under a congressional grant to issue a patent for lands reserved out of that grant, and such a patent is void. The application of these principles will be best illustrated by a detailed discussion of the different kinds of grants.

I. TOWN SITE GRANTS.

There cannot be a real conflict between a town site and a mining patent. The statutes governing the former were, until March 3, 1891, the following: