MOORE, District Judge.
The demurrer, because of its presenting points somewhat new in this court, will now receive careful attention. The demurrer raises the question whether, the issue of the patent and the regularity of all the proceedings as recited leading thereto being taken as admitted, the patent conveyed any title or interest or right of possession to the lots in dispute which will avail the defendant against the title of the plaintiff, resting on a location of a date prior to the issue •of the patent.
The second and further defense of the answer in setting up the patent and the proceedings ending therein as new matter must be taken as an admission of the facts embodied'in the complaint, one of which is that the plaintiff was at the date of the entry of the townsite the owner of a valid and subsisting mining location, made July 13, 1899, and covering the lots in •dispute. By implication “the further defense” asserts that defendant’s title to the lots, originating in a patent and transferred by deed, is paramount to the title of the plaintiff ac•quired by a mining location of a date prior to the patent. It is this conclusion drawn from the allegations of the further ■defense which plaintiff traverses by his further reply.
To bring into' clear view the nature and extent of the interest which a locator of placer mineral ground acquires by means [238]*238of a location thereof, valid in all respects, these excerpts from various authoritative decisions of courts are given : One, an early California case, Merced Min. Co. v. Fremont, 7 Cal. 317, 68 Am. Dec. 262, announces this doctrine:
“The owner of a mining claim has in practical effect a good vested title to the property, and should be so treated until his title is divested by the exercise of the higher right of the superior proprietor. His rights and remedies in the meantime are not trammeled by the consideration that the higher rights to reclaim the property exists in another, which right may possibly, but not probably, be exercised.”
“A location,” says Chief Justice Waite, in Belk v. Meagher, 104 U. S. 285, 26 L. Ed. 735, “when perfected, has'the effect of a grant by the United States of the right of present and exclusive possession of the land located.” Gwillim v. Donnellan, 115 U. S. 49, 5 Sup. Ct. 1110, 29 L. Ed. 348, citing 'above.
“A mining claim perfected under the law is properly in the highest sense of that term, which may be bought, sold, and conveyed, and will pass by descent.” Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313; Belk v. Meagher, 104 U. S. 283, 26 L. Ed. 735.
“A patent when issued [for a mining claim] relates to the time of-the location, from which time it takes effect. The location( itself has the effect of a grant. The patent is simply the evidence of the precedent grant, and must necessarily relate back to it.” Talbot v. King (1886) 6 Mont. 76, 9 Pac. 434; Barringer and Adams on Mines, 428.
These various definitions and descriptions may be condensed in one proposition below: '
"A mining location carries with it the right to the- exclusive possession and enjoyment of the surface within the boundaries of the location and all the land beneath the surface.” Belk v. Meagher, 104 U. S. 283, 26 L. Ed. 735.
Now, what was conveyed by the patent to P. J. Coston, the townsite trustee? By section 16 of the act of Congress of March 3, 1891 (26 Stat. 1095, c. 561 [U. S. Comp. St. 1901, p. 1459]), it is provided:
“That townsite entries may be made by incorporated towns and cities on the mineral lands of the United States, but no title) shall be [239]*239acquired by sucb 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.”
Under this law the defendant’s grantor in behalf of the town of Nome proceeded to acquire a patent for the lots in controversy. It seems that, according to the construction by the Supreme Court of the United States of the townsite laws enacted prior to this act, patents conveyed no title to known valuable mineral lands, whether located or not. The design of this act was to authorize townsites to be located on and over mineral lands of the United States not at the time appropriated for mining purposes, but expressly to forbid the acquisition in incorporated towns of titles by means of a townsite patent to all veins of gold or other enumerated minerals, and any valid mining claim or possession held under existing law.
To this effect is the following utterance of the Supreme Court of Montana in one of the famous Smokehouse Uode Cases, construing the townsite law as it was before the enactment of the act of March 3, 1891:
“An exception in a townsite patent, excluding from its provisions all mines, mining claims, and possessions held under existing law, is an exception required by the law, and made by the law itself, and is conclusive upon the question that the government did not [convey] and did not intend by such townsite patent to convey any valid mine, mining claim, or possession held under existing law, and it is therefore impossible under a patent to a townsite to acquire any interest in any valid mine or mining claim or the surface thereof.” Butte City Smokehouse Lode Cases, 6 Mont. 397, 12 Pac. 858.
If, after this judicial declaration of the legislative intent as expressed in the townsite laws, there remained after its delivery basis for reasonable doubt in respect to the accuracy of its doctrine, the plain words of the act of 1891 have left no room for uncertainty as to its meaning.
The owner of a valid mining claim, over which is sought [240]*240to be extended a townsite patent by the United States, is not required to file an adverse claim, for the very sufficient reason that the townsite law of 1891 expressly excludes mining claims and possessions from any title acquired by force and authority of that law, and the law does not require the doing of a vain and fruitless act. There is no conflict under the law between the rights flowing from a mining location and from a townsite patent. The titles take hold of and affect property that is entirely separate and distinct. Butte City v. Smokehouse Cases, 6 Mont. 397, 12 Pac. 865, supra; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423; Davis v. Wiebbold, 139 U. S. 530, 11 Sup. Ct. 628, 35 L. Ed. 238; 1 Snydejr on Mines, § 682, and authorities cited in footnote.
Impelled by the force of the authorities cited,' I am convinced that the title by patent set up by the defendaht in denial of the plaintiff’s right of exclusive possession of tbe premises in dispute can only extend to and embrace such right and interest in the land as the act of March 3, 1891, will permit. As already stated, that act expressly reserves from the operation and effect of a patent “any mining claim or possession held under existing law.”
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MOORE, District Judge.
The demurrer, because of its presenting points somewhat new in this court, will now receive careful attention. The demurrer raises the question whether, the issue of the patent and the regularity of all the proceedings as recited leading thereto being taken as admitted, the patent conveyed any title or interest or right of possession to the lots in dispute which will avail the defendant against the title of the plaintiff, resting on a location of a date prior to the issue •of the patent.
The second and further defense of the answer in setting up the patent and the proceedings ending therein as new matter must be taken as an admission of the facts embodied'in the complaint, one of which is that the plaintiff was at the date of the entry of the townsite the owner of a valid and subsisting mining location, made July 13, 1899, and covering the lots in •dispute. By implication “the further defense” asserts that defendant’s title to the lots, originating in a patent and transferred by deed, is paramount to the title of the plaintiff ac•quired by a mining location of a date prior to the patent. It is this conclusion drawn from the allegations of the further ■defense which plaintiff traverses by his further reply.
To bring into' clear view the nature and extent of the interest which a locator of placer mineral ground acquires by means [238]*238of a location thereof, valid in all respects, these excerpts from various authoritative decisions of courts are given : One, an early California case, Merced Min. Co. v. Fremont, 7 Cal. 317, 68 Am. Dec. 262, announces this doctrine:
“The owner of a mining claim has in practical effect a good vested title to the property, and should be so treated until his title is divested by the exercise of the higher right of the superior proprietor. His rights and remedies in the meantime are not trammeled by the consideration that the higher rights to reclaim the property exists in another, which right may possibly, but not probably, be exercised.”
“A location,” says Chief Justice Waite, in Belk v. Meagher, 104 U. S. 285, 26 L. Ed. 735, “when perfected, has'the effect of a grant by the United States of the right of present and exclusive possession of the land located.” Gwillim v. Donnellan, 115 U. S. 49, 5 Sup. Ct. 1110, 29 L. Ed. 348, citing 'above.
“A mining claim perfected under the law is properly in the highest sense of that term, which may be bought, sold, and conveyed, and will pass by descent.” Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313; Belk v. Meagher, 104 U. S. 283, 26 L. Ed. 735.
“A patent when issued [for a mining claim] relates to the time of-the location, from which time it takes effect. The location( itself has the effect of a grant. The patent is simply the evidence of the precedent grant, and must necessarily relate back to it.” Talbot v. King (1886) 6 Mont. 76, 9 Pac. 434; Barringer and Adams on Mines, 428.
These various definitions and descriptions may be condensed in one proposition below: '
"A mining location carries with it the right to the- exclusive possession and enjoyment of the surface within the boundaries of the location and all the land beneath the surface.” Belk v. Meagher, 104 U. S. 283, 26 L. Ed. 735.
Now, what was conveyed by the patent to P. J. Coston, the townsite trustee? By section 16 of the act of Congress of March 3, 1891 (26 Stat. 1095, c. 561 [U. S. Comp. St. 1901, p. 1459]), it is provided:
“That townsite entries may be made by incorporated towns and cities on the mineral lands of the United States, but no title) shall be [239]*239acquired by sucb 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.”
Under this law the defendant’s grantor in behalf of the town of Nome proceeded to acquire a patent for the lots in controversy. It seems that, according to the construction by the Supreme Court of the United States of the townsite laws enacted prior to this act, patents conveyed no title to known valuable mineral lands, whether located or not. The design of this act was to authorize townsites to be located on and over mineral lands of the United States not at the time appropriated for mining purposes, but expressly to forbid the acquisition in incorporated towns of titles by means of a townsite patent to all veins of gold or other enumerated minerals, and any valid mining claim or possession held under existing law.
To this effect is the following utterance of the Supreme Court of Montana in one of the famous Smokehouse Uode Cases, construing the townsite law as it was before the enactment of the act of March 3, 1891:
“An exception in a townsite patent, excluding from its provisions all mines, mining claims, and possessions held under existing law, is an exception required by the law, and made by the law itself, and is conclusive upon the question that the government did not [convey] and did not intend by such townsite patent to convey any valid mine, mining claim, or possession held under existing law, and it is therefore impossible under a patent to a townsite to acquire any interest in any valid mine or mining claim or the surface thereof.” Butte City Smokehouse Lode Cases, 6 Mont. 397, 12 Pac. 858.
If, after this judicial declaration of the legislative intent as expressed in the townsite laws, there remained after its delivery basis for reasonable doubt in respect to the accuracy of its doctrine, the plain words of the act of 1891 have left no room for uncertainty as to its meaning.
The owner of a valid mining claim, over which is sought [240]*240to be extended a townsite patent by the United States, is not required to file an adverse claim, for the very sufficient reason that the townsite law of 1891 expressly excludes mining claims and possessions from any title acquired by force and authority of that law, and the law does not require the doing of a vain and fruitless act. There is no conflict under the law between the rights flowing from a mining location and from a townsite patent. The titles take hold of and affect property that is entirely separate and distinct. Butte City v. Smokehouse Cases, 6 Mont. 397, 12 Pac. 865, supra; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423; Davis v. Wiebbold, 139 U. S. 530, 11 Sup. Ct. 628, 35 L. Ed. 238; 1 Snydejr on Mines, § 682, and authorities cited in footnote.
Impelled by the force of the authorities cited,' I am convinced that the title by patent set up by the defendaht in denial of the plaintiff’s right of exclusive possession of tbe premises in dispute can only extend to and embrace such right and interest in the land as the act of March 3, 1891, will permit. As already stated, that act expressly reserves from the operation and effect of a patent “any mining claim or possession held under existing law.”
The inference from the authorities, as applied to1 the pleadings, is equally certain that the locator of the Chilberg Beach mining claim, by his location in 1899, acquired the exclusive right to the use and enjoyment of the surface included within the limits of said location and all the land beneath with its minerals, and that this right was in full force and vigor at the institution of this action, August 3, 1906. The further conclusion follows from these deductions that the title by patent and deed gives to the defendant no right of possession of the lots in question so long as the plaintiff’s rights therein under his location continue, and that meanwhile defendant’s rights therein remain wholly subordinate to those of the plaintiff.
[241]*241It is urged by the counsel appearing for the defendant at the argument that the patent cannot be attacked collaterally in a court of law. This contention is not sound, I conceive, under the facts and circumstances of the case. The plaintiff, finding himself dislodged from the possession of his mining claim, seeks his remedy. He cannot successfully invoke the aid of the Land Department, for that department wifi deny him relief, unless he will enter his claim for patent. If his choice be to stand alone upon his rights as a locator, he may contend before the department for official recognition of his rights, as did the Nome-Sinook Mining Company and R. T. Lyng, when they protested before the Land Department by a motion for a review of the department's previous refusal to consider their objections to the granting of the townsite patent to a trustee for the inhabitants of the townsite of Nome. In that proceeding the Secretary of the Interior said:
“The protestants may, if they choose, apply for patent and have all questions touching their right to the legal title to the lands claimed by them inquired into and determined, or they may continue to rest upon their claimed possessory rights under their locations, in which latter event, should their rights be invaded, their remedy will be in the courts, where such matters are clearly cognizable.” 34 Land Dec. 279.
Under the authorities cited, it will not be necessary in the case now under consideration for the plaintiff to attack the townsite patent for invalidity. In fact, the plantiff, by his pleading, concedes its validity. He denies to it the legal effect which the defendant attaches to it.
That the quantity of interest which a townsite patent is competent to convey may become the subject of inquiry in an action at law is sanctioned by the Supreme Court, speaking by Justice Field, in Steel v. St. Louis Smelting & Refining Company, 106 U. S. 452, 1 Sup. Ct. 389, 27 L. Ed. 226, wherein the court said:
[242]*242“If they [the lands included in a patent] never were ,the property of the United States, or if no legislation authorized their sale, or if they had been previously disposed of, or reserved from Sale, the patent would be inoperative to pass the title, and objection to it could be taken on these grounds at any time, and in any form of action. In that respect the patent would be like the deed of ah individual, which would be inoperative if he never owned the property, or had previously conveyed it, or had dedicated it to uses which preclude its sale.” r i
The authorities herein cited established the doctrine, as I conclude, that the law does not empower the government to convey by a townsite patent a mining location held before and at the date of the patent; in other words, that land so held is reserved from entry and sale under the townsite laws. If the Supreme Court, in this leading case upon the subject, correctly defines the conditions under which a patent is open 1;o collateral attack, then every part of the Chilberg Beach mining claim, being under the authorities cited absolutely reserved from sale by the act of 1891, the townsite patent must be subject to the objection in this action that it does not convey any interest in the property in controversy. !
Yielding to the force of the law as I find it, the ¡opinion of the court now is that the demurrer should be overruled.