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that it can'exercise no control over or make any use or absolute disposition of any of these lands, it is entirely removed by the late act of congress approved February 26, 1895, by which it is provided that the secretary of the interior shall "cause all lands within the land districts hereinafter named (within which lie these lands] in the states of Montana and Idaho within the land grant and indemnity land grant limits of the Northern Pacific Railroad Company to be examined and classified * * *

with special reference to the mineral or nonmineral character of such lands and to reject, cancel and disallow any and all claim or filings heretofore made or which may hereafter be made by or on behalf of said Northern Pacific Railroad Company on any lands in said land districts.

And provided further, that the examination and classification of lands hereby authorized shall be made without reference or regard to any previous examination or report or classification thereof. That no patent or other evidence of title shall be issued or delivered to said Northern Pacific Railroad Company, for any lands in said land districts until such lands shall have been examined and classified as nonmineral, as provided for in this act, and such patent or other evidence of title shall only issue then to such land, if any, in said land districts as said company may be, by law and compliance therewith and by said classification entitled to, and any patent, certificate or record of selection or other evidence of title or right to possession of any land in said land districts, issued, entered or delivered to said Northern Pacific Railroad Company in violation of the provisions of this act shall be void: provided, that nothing contained in this act shall be taken or construed as recognizing or confirming any grant of land or the right to any land in the said Northern Pacific Railroad Company, or as waiving or in any wise affecting any right on the part of the United States against said Northern Pacific Railroad Company to claim a forfeiture of any land grant heretofore made to said company.” Not only have we here the clear statement that the railroad company has no present title of any kind, and cannot have, until after the examination and classification provided for, to any of these lands within the place or indemnity limits, but it is so repeated in different forms in the act that no doubt of the design of congress can be entertained. If the company has no present title, it must follow that it remains in the government, and that the state cannot exercise the power of taxation. It is urged, and not without logic, that if the company now has no title to these lands it is not concerned in their taxation, and should not be heard to object thereto, and that if the lands belong to the company it cannot object. The injustice and hardship of this view is that, as must be conceded, some of these lands will be held by the government as mineral lands, and as it cannot now be determined which will be so found, the company, to avoid all risk of doubt upon the title to those which may be finally awarded to it, must pay upon all, and trust to future repayment of taxes erroneously paid. It may also be said that if the company now has no such title or claim to the lands as will justify their taxation, the threatened sale will cast no cloud. This leaves the company to assume all the risk, leads to unnecessary expense on the part of the state, and to possible clcuding of the title of the lands, and not only to such uncertainty of title as may for years prevent their occupation and improvement, but may result in a multiplicity of suits. While the courts favor the collection of taxes as a burden in which all should bear their just part, there is not sufficient reason why it should force this company to submit to an injustice in order to protect its rights. When the government so withdraws its claim to, and so ceases to exercise jurisdiction and control over, these lands, that it may fairly be said the company has at least an equitable title to any distinct tracts or parcels thereof, the same may be taxed, and should not be before.

The objection that this tax cannot be stayed by injunction is answered by the railroad land-tax case, 133 M. S., 10 Sup. Ct. It is therefore ordered that the demurrer be overruled, and that this order operate to continue the existing restraining order.

MONTANA CENT. RY. CO. v. MIGEON et al.

(Circuit Court, D. Montana. June 22, 1895.)

No. 180.

1. MINES AND MINING-OVERLAPPING PLACER AND LODE CLAIMS-PRESUMP

TIONS FROM PLACER PATENT.

The presumptions are all in favor of the validity of a placer patent as against a lode claim located subsequent to its issuance upon part of the same ground; and, where the patentee files an adverse claim against the application for patent to the lode, and brings an action in support thereof, the burden is upon the lode claimants to overcome these presumptions, and to show by clear and convincing proofs that the vein on which the lode claim was located was a known vein at the time of the application for the

placer patent. 2. SAME.

In order that a vein or lode, included within the limits of a placer patent, shall be excluded from the operation of the patent, under Rev. St. $ 2333, so as to be subject to subsequent location, such vein must have been known, at the date of the application for the placer patent, to exist, and to contain minerals in such quantity, and of such quality and value, as to justify, under the circumstances then existing, expenditures for the pur

pose of extracting them. 3. SAME_"KNOWN" VEIN-REV. ST. SS 2320, 2333.

It seems that the requisites of a "known” vein, under Rev. St. § 2333, are different from those of a vein or lode which will justify a location under section 2320. Under the former the ledge must be known to be so valuable for its minerals as to justify expenditures for their extraction, while under the latter comparatively slight indications of a defined and min

eral-bearing ledge have been held sufficient. 4. VALIDITY OF PLACER PATENT-COLLATERAL ATTACK-PRIOR LODE CLAIM.

The fact that a placer claim, for which a patent has been issued, included at the time of its location part of a lode claim which had not then been forfeited, is a matter which cannot be considered in a collateral attack upon the placer patent, by one who has made a subsequent vein location upon part of the same land after the issuance of the placer patent. This was an action by the Montana Central Railway Company, which claimed to own certain land by virtue of conveyance from the

patentee of a placer mining claim, against A. F. Migeon and others The action was brought in support of an adverse claim filed by plaintiff against an application by defendants for a patent for a lode or vein mining claim, which was located upon part of the lands covered by the placer patent subsequent to the issuance thereof.

H. G. McIntire and A. J. Shores, for plaintiff.
George A. Clark, for defendants.

BEATTY, District Judge. With the announcement of the decision in this cause it is fitting to note the ability and courtesy of the counsel who conducted the trial. While most clearly presenting the important issues, they did so with such happy comity towards each other, the witnesses, the court, and all interested, as rendered the supervision of the proceedings a pleasure instead of the wearying performance of a duty. On July 2, 1877, the Morning Star lode claim was located 750 feet each way, easterly and westerly, from the discovery point in Summit Valley mining district, then in Deer Lodge, now Silver Bow, county, Mont. October 15, 1878, tủe Noyes placer mining claim was located, and included within its limits about 730 feet of the west end of the Morning Star lode claim. December 17, 1878, application for patent was made for such placer claim, and on July 28, 1880, patent was issued therefor, and subsequently a portion thereof was conveyed to plaintiff, and is now used for depot and other railway purposes. January 1, 1882, the Childe Harold lode claim, now owned by defendants, was located at the discovery point of the Morning Star location, 50 feet easterly and 1,450 feet westerly from such point, a part of which is included in that portion of said placer claim so conveyed to plaintiff. On September 27, 1887, the defendants made application for a patent to such Childe Harold claim, whereupon plaintiff brought this action in support of its adverse claim made in the land office to such application, and now asks that its title to the ground in conflict be quieted.

Involved in this action are the propositions: (1) The annulment of the government's patent as to the ground in controversy; (2) what is a known vein, as defined by section 2333, Rev. St.; and (3) whether such a known vein existed within the placer claim on the 17th day of December, 1878, the date of the application for patent therefor.

1. Lengthy discussions of the legal propositions would be profitless, for their solution seems to have been reached by the court of final resort. The stability of a patent and the barriers to its successful assault are indicated in the Maxwell Land Grant Case, 121 U. S. 365– 381, 7 Sup. Ct. 1029, where the supreme court says:

“We take the general doctrine to be that when, in a court of equity, it is proposed to set aside, to annul, or to correct a written instrument for fraud or mistake in the execution of the instrument itself, the testimony on which this is done must be clear, unequivocal, and convincing, and that it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt. If the proposition * is sound in regard to the ordinary contracts of private individuals, how much more should it be observed where the attempt is to annul the grants, the patents, and other solemn evidences of title emanating from the government of the United States under its official seal. In this class of cases . . the effort to set them (patents] aside, to annul them, or to correct mistakes in them, should only be successful when the allegations on which this is attempted are clearly stated, and fully sustained by proof. * * * It should be well understood that only that class of evidence which commands respect, and that amount of it which produces conviction, shall make such an attempt successful."

This is reaffirmed in Colorado Coal & Iron Co. v. U. S., 123 U. S. 307-317, 8 Sup. Ct. 131, which was an action by the government to vacate the patent for coal lands, wherein it is said that the proofs to do so must be "clear, convincing, and unambiguous”; and in U. S. v. Iron Silver Min. Co., 128 U. S. 673-676, 9 Sup. Ct. 195, being a direct action to cancel a placer patent because an alleged known lode was neither excepted nor paid for, the court says:

“The presumption attending the patent, even when directly assailed, that it was issued upon sufficient evidence that the law had been complied with by the officers of the government charged with the alienation of the public lands, can only be overcome by clear and convincing proof.”

Without giving further attention to the views of that court upon this point, it must be concluded that all presumptions favor the validity of the placer patent; that the patentee had fully complied with the law in all respects; that at the time of his application the Childe Harold vein was not a known vein; and that, unless the defendants overcome these presumptions by clear and convincing proof, the plaintiff must prevail.

2. What constitutes a known vein under said section 2333 and the definitions of the courts, is not entirely clear. The question is more easily answered if it be conceded that the requisites of a vein which justify a location under section 2320 are different from those applied to a known vein under the other section. It must be admitted that but slight indications of a defined and mineral-bearing ledge have been held sufficient in many cases to support a location or a valid mining claim.

Justice Field's definition in the Eureka Case, Fed. Cas. No. 4,548, is familiar,—that a lode “is a zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. In North Noonday Min. Co. v. Orient Min. Co., 6 Sawy. 303, 1 Fed. 522, and in Jupiter Min. Co. v. Bodie Consolidated Min. Co., 11 Fed. 675, Judge Sawyer said it is “a seam or fissure in the earth's crust, filled with quartz carrying gold, silver, or other valuable mineral deposits named in the statute." In Mining Co. v. Cheesman, 116 U. S. 535, 536, 6 Sup. Ct. 481, is approved the following:

"A lode or vein is a body of mineral or mineral-bearing rock within welldefined boundaries in the general mass of the mountains. In this definition the elements are the body of mineral or mineral-bearing rock and the boundaries. With either of these things well established, very slight evidence may be accepted as to the existence of the other. A body of mineral or mineral-bearing rock in the general mass of the mountains, so far as it may continue unbroken and without interruption, may be regarded as a lode, whatever the boundaries may be. In the existence of such body, and to the extent of it, the boundaries are implied. On the other hand, with well-defined boundaries, very slight evidence of ore within such boundaries will prove the existence of a lode. Such boundaries constitute a fissure, and if in such fissure ore is found although at considerable intervals, and in small quantities, it is called a lode or vein."

It is held that: “When the locator finds rock in place, containing mineral, he has made a discovery, within the meaning of the statute, whether the rock or earth is rich or poor, whether it assays high or low." Book v Mining Co., 58 Fed. 120.

That “a valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following it in expectation of finding ore, and that a valid location may be made of a ledge deep in the ground, and appearing at the surface, not in the shape of ore, but in vein matter only," is adopted in Burke v. McDonald (Idaho) 29 Pac. 101, and in Harrington v. Chambers (Utah) 1 Pac. 375.

The last case, on appeal to the supreme court, was affirmed, but without discussing this proposition, which was involved in the appeal. 111 U. S. 350, 4 Sup. Ct. 428. It is needless to add to the above other similar definitions. They establish the liberal rule that it is not necessary, to the location of a valid claim under section 2320, that ore of commercial value in either quantity or quality must first be discovered within its limits. While the practical observer will commend the rule, it must be reasonably applied. To apply it to every seam or fissure which may be filled with matter containing traces of the precious metals, whether in or remote from mineral country, whether valuable or worthless as a mining claim, would be a perversion of a liberal law. The vein or lode which the statute directs must be discovered before the location of a claim must be one that, from all its indications, has a present or prospective commercial value, for only "lands valuable for minerals” are subect to appropriation as mining claims. Section 2318. Hence, in any case, it may be an open question whether a location includes land valuable for minerals, or whether it is based upon some barren seam or fissure which may be easily found in all localities in which there has been much disturbance of the earth's crust.

There are other and later authorities, which seem not only to modify the above, but also to emphasize the statute that the lands must be “valuable for minerals,” by holding that to claim them as mineral they must be more valuable for that than for other purposes, and in defining a known ledge under section 2333 require stronger evidence of a vein and mineral deposits than is required by some of the courts for the location of a valid claim under section 2320; but they are generally cases similar to the one under consideration, of contests between parties claiming the same land for different purposes.

Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, is a case of contest between the plaintiff, holding a placer patent, and defendant, claiming under an unpatented town-site location, in which, on page 404, 115 U. S., page 95, 6 Sup. Ct., the court says: “We say land known at the time to be valuable for its minerals, as there are vast tracts of public land in which minerals of different kinds are found, but not in such quantity as to justify expenditure in the effort to extract them. It is not to such lands that the term 'mineral,' in the sense of the statute, is applicable;" and then refers to the provisions of section 2318, by which "lands

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