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town site, and therefore not subject to entry under the existing preemption laws, it shall be lawful, in case such town or place shall be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judges of the county court for the county in which such town may be 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 execution 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 rules and regulations as may be prescribed by the legislative authority of the State or Territory in which the same in situated: Provided, That the entry of the land intended by this act be made prior to the commencement of the public sale of the body of land in which it is included, and that the entry shall include only such land as is actually occupied by the town, and be made in conformity to the legal subdivisions of the public lands authorized by the act of April 24, 1820, and shall not in the whole exceed 320 acres: And provided, also, That any act of said trustees, not made in conformity to the rules and regulations herein alluded to, shall be void and of none effect: And provided, also, That the corporate authorities of the town of Weston, in the county of Platte, State of Missouri, or the county court of Platte county, in said State, shall be allowed 12 months, from and after the passage of this act to enter at the proper land office, the lands upon which said town is situate.

A. TOWN-SITE LAWS.

1. FORCE AND APPLICATION.

2. MINERAL LANDS NOT SUBJECT TO OCCUPATION.

1. FORCE AND APPLICATION.

This act is the original town-site act.

Murray v. Hobson, 10 Colo. 66, p. 72.

The general town-site statute was never in force in the State of Oregon.
Marlin v. T'Vault, 1 Oreg. 77, p. 84.

2. MINERAL LANDS NOT SUBJECT TO OCCUPATION.

See 10 Stat. 244, p. 1257.

This act and the act of March 3, 1853 (10 Stat. 244), made all public lands not mineral, occupied as town sites, subject to entry by the town authorities in trust for the several use and benefit of the occupants according to their respective entries, whether settled upon before or after such lands were surveyed.

Rector v. Gibbon, 111 U. S. 276, p. 287.

Public lands occupied as towns or villages are subject to this act, except town sites on or near mineral lands.

Keystone Consol. Min. Co., v. California, Copp's Min. Lands 101, p. 111.

14 STAT. 541, MARCH 2, 1867.
MINERALS RESERVED.

AN ACT For the relief of the inhabitants of cities and towns upon the public lands.

Be it enacted, etc., That whenever any portions of the public lands of the United States have been or shall be settled upon and

occupied as a town site, and therefore not subject to entry under the agricultural preemption laws, it shall be lawful, in case such town shall 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 may be 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 execution 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 rules and regulations as may be prescribed by the legislative authority of the State or Territory in which the same may be situated: And provided further, That no title shall be acquired under the provisions of this act to any mine of gold, silver, cinnabar, or copper.

15 STAT. 67, Chap. 53, JUNE 8, 1868.

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MINERALS RESERVED-AMENDMENT.

AN ACT To amend an act entitled "An act for the relief of the inhabitants of cities and towns upon public lands,” approved March 2, 1867 (14 Stat. 541).

Be it enacted, etc., That the inhabitants of any town located on the public land of the United States may avail themselves, if the town authorities elect so to do, of the provisions of the act of March 2, 1867, entitled "An act for the relief of the inhabitants of cities and towns upon the public lands": Provided, This act shall not prevent the issuance of patents to persons who have made, or may make, entries and elect to proceed under existing laws: And provided further, That no title under said act of March 2, 1867, shall be acquired to any valid mining claim or possession held under the existing laws of Congress: Provided, also, That in addition to the minimum price of the lands included in any town site entered under the provisions of this act, "An act for the relief of the inhabitants of cities and towns upon the public lands," approved March 2, 1867, there shall be paid by the parties availing themselves of the provisions of said acts all costs of surveying and platting any such town site, and expenses incident thereto, incurred by the United States. before any patent shall issue therefor.

A. TOWN SITES.

1. MINING CLAIMS NOT ACQUIRED BY.

2. "MINES" AND "MINERALS"-MEANING.

3. MINING CLAIMS ON TOWN SITE-RIGHT OF CLAIMANT.

4. PATENT-RESERVATIONS AS TO MINERALS.

1. MINING CLAIMS NOT ACQUIRED BY.

See 13 Stat. 343, p. 786; 13 Stat. 530, p. 788; 14 Stat. 541, p. 1376.

Under this town-site act no title can be acquired to any mine of gold, silver, cinnabar, or copper.

Richards v. Dower, 81 Cal. 44, p. 50.

The town-site acts provide that no title shall be acquired to any valid mining claim or possession held under existing laws of Congress by virtue of the provisions of such town-site acts.

Elridge, In re, Copp's Min. Lands, 339.
Nagler, In re, Copp's Min. Dec. 156.

2. "MINES" AND "MINERALS”

MEANING.

This was an act for "The relief of inhabitants of States and towns upon public lands," and, as enacted, comprised only the first sentence of the present section 2392 R. S., and the word "mine" in this act, and also in the section referred to, is synonymous with the word "deposit" or with the words "land containing deposits.”

Hawke v. Deffeback, 4 Dak. 20, p. 33.

An essential requisite of a gold mine under this act is a natural deposit of rock or earth containing a sufficient quantity of gold to admit of profitable working. Richards v. Dower, 81 Cal. 44, p. 50.

3. MINING CLAIMS ON TOWN SITE-RIGHT OF CLAIMANT.

A person holding a bona fide mining claim by virtue of compliance with local laws and regulations under the acts of Congress, and situated within the exterior boundaries embraced by a town-site location, is entitled to enter the same.

Nagler, In re, Copp's Min. Dec. 156, p. 157.

Register at Central City, In re, Copp's Min. Dec. 207.

4. PATENT RESERVATIONS AS TO MINERALS.

A town-site patent should contain the reservation that no title is thereby acquired to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession, as provided in this act and in the cumulative provision of the amendatory act of June 8, 1868 (15 Stat. 57).

Papina v. Alderson, 10 C. L. O. 52.

Where mining ground did not pass under a town-site patent the locator is entitled to extralateral rights and a reservation in the town-site patent is in accordance with the provisions of this act.

Golden v. Murphy, 31 Nev. 395, p. 408.

26 STAT. 1095, pp. 1099, 1101, 1102, 1 SUPP. R. S. 940, p. 945, MARCH 3, 1891.

TOWN-SITE ENTRIES ON MINERAL LAND.

AN ACT To repeal timber-culture laws, and for other purposes.

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Section 11 of this act is section 85 of Alaska Compiled Laws, p. 867.

SEC. 16. That town-site entries may be made by incorporated 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, copper, or lead, or to any valid mining claim or possession held under existing law. When mineral veins are possessed 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 town sites 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 ground shall have had possession of the same before the inception of the title of the mineral-vein applicant.

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SEC. 22. That the section of land reserved for the benefit of the Dakota Central Railroad Co. on the west bank of the Missouri River, at the mouth of Bad River, as provided by section 16 of "An act to divide a portion of the reservation of the Sioux Nation of Indians in Dakota into separate reservations and to secure the relinquishment of the Indian title to the remainder and for other purposes,' approved March 2, 1889 (25 Stat. 893), shall be subject to entry under the town-site law only.

A. TOWN-SITE SECTION OF ACT (16).

1. TOWN SITES ON MINERAL LANDS- PURPOSE OF act.
2. TOWN-SITE APPLICATION AND ENTRY-MINERAL RIGHTS.
3. MINERAL AND TOWN-SITE CLAIMANTS-RIGHTS.

4. MINERAL CHARACTER OF LAND-PROOF.

5. TOWN-SITE ENTRY ON SURVEYED LANDS-FORM.

6. TOWN-SITE APPLICATION-EXCLUSION OF MINERALS.

7. TOWN-SITE OCCUPANT RIGHT TO HEARING.

8. TOWN-SITE ENTRY OR PATENT-EFFECT ON MINING CLAIM.

1. TOWN SITES ON MINERAL LANDS PURPOSE OF ACT.

See Alaska Comp. Laws, sec. 85, p. 867.

The design of section 16 is to authorize town sites to be located on mineral lands not at the time appropriated for mining purposes, and expressly to forbid the acquisition in such towns of titles by means of town-site patents to minerals or a valid mining claim.

Chilberg v. Consolidated Min. Co., 3 Alaska 235, p. 239.
See Murray v. Buol, 6 Mont. 397.

This section of the act enlarges the right given to a mineral claimant under sections 2386 and 2392 of the Revised Statutes in that it gives a mineral applicant a right to a patent of the excepted mineral veins, mining claims, or possessions, after a town-site patent has been issued.

Lalande v.

Townsite of Saltese, 32 L. D. 211, p. 213.

The purpose of Congress was to permit and authorize mineral prospecting and mining upon lands owned by the United States and merely occupied by others for some purpose other than mining, provided that such mining operation did not interfere with such occupancy.

Goldstein v. Juneau Townsite, 23 L. D. 417,

A town site may be located on mineral land.

Rico Townsite, In re, 9 C. L. O. 90, p. 91.

p. 420.

While town-site entries may be made on mineral lands, yet no title can be acquired thereunder to any mine or mineral.

Old Dominion Copper Min., etc., Co. v. Haverly, 11 Ariz. 241, p. 251.

The devotion of a claimed placer area to town-site purposes is ordinarily inconsistent with the appropriation under the placer laws, and such a disposition of contingent title by a placer claimant should receive no official sanction.

Saunders, In re, 40 L. D. 217, p. 218.

2. TOWN-SITE APPLICATION AND ENTRY-MINERAL RIGHTS

A town-site application and entry made pending the mineral location and with a view to obtaining patent to the entire interest in the land included in the mineral location puts the town-site claimant in the attitude of asserting the nonmineral character of all of such land and of assuming the burden of establishing that fact by proof. Goldstein v. Juneau Townsite, 23 L. D. 417, p. 420.

A town-site entry embracing patented lands can not be allowed.
Hulings v. Ward Townsite, 29 L. D. 21, p. 22.
See Lalande v. Townsite of Saltese, 32 L. D. 211,

p. 213.

Where a town-site entry has been allowed on proof showing the land to be nonmineral and the money received for the land and a final certificate issued, the entryman is prima facie the equitable owner and entitled to a patent, and anyone thereafter attacking the entry assumes the burden of establishing such illegality in the procurement or allowance of the entry as will dispute the issuance of patent.

Harkrader v. Goldstein, 31 L. D. 87, p. 93.

Aspen Consol. Min. Co. v. Williams, 27 L. D. 1.

Overruling Goldstein v. Juneau Townsite, 23 L. D. 417.

Section 16 expressly provides for the protection of possessory rights under existing valid mining claims and an entry for such mineral veins so possessed may be made and patent issued therefor after the issuance of a town-site patent.

Hulings v. Ward Townsite, 29 L. D. 21, p. 23.

See Lalande v. Townsite of Saltese, 32 L. D. 211, p. 213.

All unpatented mining claims for which applications are on file must be excluded from a town-site entry.

Hulings v. Ward Townsite, 29 L. D. 21, p. 22.

See Lalande v. Townsite of Saltese, 32 L. D. 211, p. 213.

3. MINERAL AND TOWN-SITE CLAIMANTS- -RIGHTS.

All subsisting and valid mining claims are subject to patent upon proper proofs, notwithstanding a town-site entry and patent, except that any such mineral entry shall not embrace surface ground where the owner shall have been in possession thereof before the inception of title of the mineral-vein claimant.

Hulings v. Ward Townsite, 29 L. D. 21, p. 24.

See Lalande v. Townsite of Saltese, 32 L. D. 211, p. 213.

As the existing rights of mineral claimants are reserved and protected by the statute, a segregation is not required, prior to the issuance of a town-site patent, for the purpose of excluding such mineral claims from patent.

Hulings v. Ward Townsite, 29 L. D. 21, p. 24.

See Lalande v. Townsite of Saltese, 32 L. D. 211, p. 213.

4. MINERAL CHARACTER OF LAND-PROOF.

The mere existence of the location of a mining claim is not of itself evidence of the mineral character of land as against a subsequent town-site entry.

Harkrader v. Goldstein, 31 L. D. 89, p. 93.

See Magruder v. Oregon, etc., R. Co., 28 L. D. 174.

Elda Min., etc., Co., In re, 29 L. D. 279.

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