Wade, C. J.
These cases, which were argued together, and involve the same questions, may well be determined by one decision. The actions are in the nature of ejectment, in which the plaintiffs below and respondents here seek to recover possession of the Smoke-house Quartz lode mining claim, situate in the Summit Yalley mining district, Silver Bow county. They claim title and right of possession by virtue of a patent, dated March 15, 1881, issued in pursuance of a location, as they contend, made April 16, 1875. The appellants claim title to a portion of the ground included in the Smoke-house patent under and by virtue of a patent for the “ Butte ” town site, issued September 26, 1877, to the probate judge of Silver Bow county, in trust for the occupants of said town. The patent for the Smokehouse location contains the following exception: “Excepting and excluding, however, from these presents all town property rights upon the surface, and there are hereby expressly excepted and excluded from the same all houses) buildings, structures, lots, blocks, streets, alleys, or other municipal improvements on the surface of the above-described premises, not belonging to the grantees herein, and all rights necessary or proper to the occupation, possession and enjoyment of the same.”
And the town site patent contained the following: “ No title shall be hereby acquired to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws of congress.”
The plaintiffs offered in evidence the patent for the Smoke-house location, which was objected to for the reason that the exception contained in such patent excludes all town lots from the grant thereby made, and that it was necessary for the plaintiffs to show that the property in controversy was not one of the lots on the Smoke-house lode claim, which was excepted from the grant. The patent was received in evidence, the defendants excepted, and this is the first assignment of error.
The only reason why a patent maybe issued for a quartz-[98]*98lode mining claim is, that the ground has been previously located according to law. Such a location gives the person making the same the right to the exclusive possession and enjoyment of all the surface ground included within the lines of his location. This is a provision of the statute, and the right thereby conferred cannot be encroached Upon while the statute remains in force. In the case of The Silver Bow M. & M. Co. v. Clark, 5 Mont. 378, we held that such an exception in a patent for. a mining claim was void, for the reason that the location of a claim according to law had the effect of a grant from the government to the locator of the right to the exclusive possession and enjoyment of all the surface ground included within the lines of his location, and that the patent was but the perfecting and consummation of the title conveyed by the location. In that case we said: “ The principles enunciated in these cases apply with much force to a case where the land office, without authority of law, inserts an exception into the granting part of a patent whereby the title of the patentee is defeated. The Pawnbroker mining claim, at the time of the issuance of the patent therefor, was a valid claim and possession under existing laws of congress, and the patentee was entitled to the exclusive possession and enjoyment of all the surface ground thereof. There was no law depriving him in any manner of the right to such possession. He had purchased the property and paid for it, and was entitled to a conveyance of the full and complete title. As between individuals, he stood in a position to compel such a conveyance. There wTas no law authorizing the land department to except the surface ground from the conveyance, or in any other manner to abridge the title of the purchaser, and in so doing it exceeded its authority, and its act, to that extent, is void and of no effect upon the property conveyed. An exception that is void leaves the patent to stand as though it contained no such exception.” Id. 425, 426.
A valid location is equivalent to a contract of purchase. [99]*99The right to occupy and purchase means the right to acquire a full title. The mineral lands are declared open to occupation and purchase. The location, together with the necessary work, is the purchase, and the patent is the evidence of the title so acquired. The location, therefore, has the effect of a grant from the government to the locator, and this grant cannot be defeated or abridged by an unauthorized exception contained in the patent, for the patent must always be in accordance with and the consummation of the grant evidenced by a valid location. It is contended, however, that the act of congress of March 3, 1865 (U. S. It. S. sec. 2386), limits the title to the locator of a mining claim, under the act of congress of May 10, 1872 (TJ. S. R. S. sec. 2319), to the necessary use of the ground located for mining purposes. The act provides as follows: “ Where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to the town lots to be acquired shall be subject to such recognized possession and the necessary use thereof.”
This statute was enacted at a time when it was the settled policy of the government not to sell its mineral lands, and when it was impossible for an individual to acquire title to such lands. Even then, when mineral veins were held and possessed by virtue of mere local rules and regulations, and when the title could not be acquired, the title to the town lots under the town site act were subject to the necessary possession and use of the mine-owner. Even then, when the government did not propose to part with its title to the mineral lands, the possessory title to the mine, such as it was, is made superior to that of the lot-owner under the town site act. That act gave to the mine-owner all the title he had, made the lot-owner’s title subject to it, and is not at all inconsistent with the act of 1872, which opens the public mineral lands to exploration and purchase, and gives to the locator the full title when its terms have been complied with. The patent for the town [100]*100site of Butte was issued September 26, 1877. The location of the Smoke-house claim was made April 16, 1875.
On the trial the appellants offered to prove that in 1866 all of the premises included in the Smoke-house location had been surveyed for a town; that streets had been marked out and town lots designated in such survey, and that the ground in controversy in this action was, in 1866, laid out as a town lot, and was then actually occupied and possessed by appellants’ grantors as a town lot, and has been occupied continuously by appellants and their predecessors in interest from 1866 to the present time, as a town lot and for town purposes, and that since 1866 the town of Butte has been actually settled and occupied as a town site by a number of people; that at times before the location of the Smoke-house lode claim, there had lived and were living within the bounds of the Butte town site several hundred people, many of whom had resided upon the premises now known as the Smoke-house lode claim, and that at the time of the location of said Smoke-house lode claim, it embraced within its bounds a large portion of the settlements of said town of Butte. The introduction of this evidence was objected to, for the reason that no rights can be acquired by settlement upon the public domain for town lot purposes as against the United States or its grantees; that under the laws of the United States, mineral lands are not open to settlement for town sites; but all such mineral lands are reserved; that defendants and their grantors having accepted and now claiming title under the Butte town site patent with a reservation therein authorized by law, that no title was thereby acquired to any valid mining claim or possession, or to any mine of gold, silver, cinnabar, or copper, cannot now claim title as against any valid, existing mining claim, but are estopped so to do; that any right or claim defendants or their grantors may have had to the premises in controversy by prior possession, or by prior occupation of the Butte town site, should have been set up by adverse claim to the application for the [101]*101Smoke-house lode patent in the United States land office, and that defendants having failed to set up any such adverse claim are now precluded from asserting the same — which objections were sustained, and this action of the court is also assigned as error.
Did the occupation of the ground included within the boundaries of the Smoke-house location from 1866 up to the date of its location in 1815, and subsequent thereto, as set forth in the proposed testimony, and the issuance of the town site patent'in 1811, subject and limit the title conveyed by the Smoke-house location, and the patent issued in pursuance thereof, and cause such title thereby to become simply a title to the necessary use of the ground located for mining purposes, and for such purposes only ? The mere possession of the mineral lands without a discovery conveys no title. The occupation of the mineral lands as and for the purposes of a town lot is of no effect as against a valid mining-claim location, and no rights or equities flow therefrom. The statute expressly forbids the acquisition of title to any mine, mining claim, or possession by virtue of such occupation, and a town site patent issued in pursuance thereof. The appellants claim title by virtue of a patent which provides, as required by law, that no title shall be acquired by .such patent to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws of congress. That the Smoke-house location was a valid mining claim under and in pursuance of the law is conclusively shown by the fact that the land department issued a patent therefor.
That department supervises the issuance of patents. Its findings, within the scope of its jurisdiction, are final. Before it issued the patent it must have found that the Smokehouse location was a valid mining claim or possession, and if it was such a claim or possession in 1815, and so continued, no title thereto was acquired by virtue of the town site patent of 1811.
What rights, then, was the Smoke-house location subject [102]*102to? The town site patent conveyed no interest in tbe ground, and all that the appellants can claim, as against the Smoke-house location and patent is the mere occupation of the mineral lands within the boundaries of such location as a town lot from 1866 to the date of this action. Such a claim must fall as against a patent issued in due form of lawj and against which nothing is alleged. There is not necessarily any conflict between a town site patent and a mining claim patent within the town site. The town site patent takes hold of and conveys title to the lands within its limits, except the mines and mining claims and possessions therein in trust for the occupants thereof for town purposes, while the mining claim patent only affects the grounds within which there has been a discovery and location according to law.
The location of a mining claim carries with it the right to the exclusive possession of the surface ground within the boundaries of the location. The location is a claim to the exclusive possession of the surface ground, as well as to the veins and deposits beneath the surface within the boundaries of the location. If the appellants acquired no title to the grounds included within the boundaries of the Smoke-house location and patent, by virtue of the town site patent,— and they did not if the same was a valid mining-claim and possession at the date of the issuance of the town site patent,— then, if they claimed any rights by virtue of their prior occupation and possession, they should have filed their adverse claim, and failing so to do, their rights, if any, by virtue of such occupation and possession, became barred. Their claim, if they had any, was that of possession. The locators of the Smoke-house claim, by their location, asserted a right to the exclusive possession, and it is the office of an adverse claim to have determined the right to the possession.
A person claiming possession adverse to the locator of a mining claim cannot delajr until the patent is issued, and then, without attacking the patent, claim by virtue of prior [103]*103possession. The patent concludes and bars the rights which he has neglected, within the time provided by law, to assert.
It would indeed be preposterous, as asserted in appellants’ brief, that a person having a patent for a piece of land should be compelled to file an adverse claim against another who had applied for a patent for the same land. The statement of such a proposition would be its own refutation. But that is not this case. The town site patent conveys no title whatever to the Smoke-house mining claim or possession. That claim had been granted and sold, and had ceased to be public mineral land long prior to the issuance of the town site patent, and the only title or right of appellants was that of occupation and possession, and this they failed to assert.
The appellants offered to prove that the Smoke-house lode claim, for which respondents received a patent March. 15, 1881, was not a valid mining claim at the date of the notice of location, April 16, 1875, or at any other time; that said ■ claim had not been staked, or its boundaries so marked as to identify the claim; and that it was not a valid mining claim, held under existing laws of congress, at the date of the issuance of the town site patent, September 26, 1877.
This evidence was rejected and error assigned. All these matters pertaining to the issuance of a patent for a mining claim —the discovery and location, the marking and bounding so that the claim may be identified and its lines readily traced; the notice and the work and labor to be performed— are all matters that come before the land department, and are conclusively adjudicated therein. That department supervises the issuance of the patent. It is a special tribunal created for that purpose, and within the scope of its jurisdiction its adjudications are final and conclusive. Before a mining claim patent can issue it must be established in the land department by competent evidence that there has been a discovery within the boundaries of the claim, and a no[104]*104tice and location according to law; that the necessary work has been done, and that all preliminary and precedent acts have been performed, which authorize and justify the issuance of the patent.
The issuance of the patent conclusively proves all these precedent acts and facts which the land department must find to exist before the patent can rightfully issue. The act of the department, therefore, in issuing a patent, is an adjudication, and, like a judgment, is final as to all matters necessarily included in and determined by it. What, then, does a patent to a mining claim prove ? 1. That the lands bounded and described therein are mineral lands; 2. That a discovery and location within said boundaries has been made according to law; and 3. That the necessary amount of work has been performed thereon, and that all preliminary and precedent- acts necessary in order to authorize and justify the issuance of the patent have been performed as the law requires. The issuance of a mining claim patent proves that there was a discovery and location according to law. The patent for the Smoke-house mining claim of March, 1881, relates back to the Smoke-house location of April, 1875; and is the consummation of the title then acquired.
The patent proves the location, and no other proof was necessary, and the testimony offered to prove the insufficiency of the location and notice, after the patent had issued, was incompetent. After the adjudication in the land office and the issuance of the patent in pursuance thereof, it would be as incompetent to question the sufficiency of the location and notice upon which the patent was issued as to attack the complaint after the rendition of a final judgment. The patent relates back to the location, and is supported by it, as a complaint supports the judgment. If it does not, and if a patent, which is the solemn act of the government in parting with its title, may be attacked when offered in evidence, for the reason that the location and notice, or that any other fact necessarily and properly [105]*105passed upon by the land department, were insufficient, or not properly proved, or if these preliminary and precedent matters once adjudicated and determined by the land department may be tried again, and the title of the government’s grantee questioned, then mining-claim patents are utterly worthless, and afford no protection to the patentee.
As was said in the case of Smelting Co. v. Kemp, 104 U. S. 636: “ It is the unassailable character of the patent which gives to it its chief, indeed its only value as a means of quieting its possessor in the enjoyment of the lands it embraces. If intruders upon them could compel him, in every suit for possession, to establish the validity of the action of the land department, and the correctness of its rulings upon matters submitted to it, the patent, instead of being a means of peace and security, would subject his rights to constant and ruinous litigation. He would recover one portion of his land if the jury were satisfied that the evidence produced justified the action of that department, and lose another portion, the title whereto rests upon the same facts, because another jury came to á different conclusion. So his rights in different suits upon the same patent would be determined, not by its efficacy as a conveyance of the government, but according to the fluctuating prejudices of different jurymen, or their varying capacities to weigh evidence.”
In Steel v. Smelting Co. 106 U. S. 447, the court said: “ The land department, as we have repeatedly held, was established to supervise the various proceedings whereby a conveyance of title from the United States to portions of the public domain is obtained, and to see that the requirements of different acts of congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal and is unassailable except by direct proceedings for its amendment or limitation.” In Johnson v. Towsley, the effect of the action of the [106]*106land department was the subject of special consideration, and the court said, “ that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others; that the action of the land-officer in issuing a patent for any of the public lands subject to sale by pre-emption or otherwise is conclusive of the legal title must be admitted under the principle above stated, and in all courts and in all forms of judicial proceedings where this title must control, either by reason of the limited powers of the court or the essential character of the proceeding, no inquiry can be permitted into the circumstances under which it was obtained.” 13 Wall. 72; French v. Fyan, 93 U. S. 169; Quinby v. Conlan, 104 id. 420; Vance v. Burbank, 101 id. 514; Beard v. Federy, 3 Wall. 478; Moore v. Wilkinson, 13 Cal. 478.
The only means by which a patent can be obtained to the mineral lands is by a discovery and location thereon. A discovery and location is as necessary to a mining-claim patent as is a complaint to a- judgment, and a fact that a patent has issued is conclusive proof of a discovery and location according to law. It appears from the record herein that the plaintiffs introduced in evidence without objection the application made to the land office at Helena, Montana, showing that the parties to whom the Smoke-house lode patent was issued made application for a patent to said lode claim in the land office at Helena in 1878, and that such application was made upon the location and notice of said claim, of date April 16,1875, a copy of which notice was attached to the application, and is set forth in the record.
The date of the location of the Smoke-house claim appears from the record of its entry in the local land office, and the patent will take effect by relation as of that date so far as may be necessary to cut off all intervening claimants. The reason for this is obvious. The location itself has the effect of a grant, oras Justice Knowles said in Rob[107]*107inson v. Smith, 1 Mont. 416: “ It is a title given by an act of congress, and hence equivalent to a patent from the United States.”
The patent is simply the evidence of this precedent grant, and must necessarily relate back to it.
In the case of The Silver Bow M. & M. Co. v. Clark, 5 Mont. 378, this court said: “ A patent relates back to the right. A patent for a mining claim relates back to the location, and is the consummation of the purchase then made.”
In Stark v. Storrs, 6 Wall. 418, the supreme court of the United States says: “ The patent relates back to the inception of the right of the patentee, so far as it may be necessary to cut off intervening claimants.” The patent being but confirmatory of the title by location, the patentee obtains the same right under it that he would have obtained if the patent had issued immediately after the location and compliance with the terms of the statute. In the Eureka Case, 4 Saw. 317, the court says: “ All these patents are founded upon previous locations, taken up and improved according to the customs and rules of miners in the district. Each patent is the evidence of a perfected right in the patentee to the claim conveyed, the initiatory step for the acquisition of which was the original location. If the date of such location be stated in the instrument or appear from the records of its entry in the local land office, the patent will take effect by relation as of that date, so far as may be necessary to cut off all intervening claimants, unless the prior right of the patentee, by virtue of his earlier location, has been lost by failure to contest the claim of the intervening claimants as provided in the act of 1872.”
As in the system established for the alienation of the public lands, the patent is the consummation of a series of acts having for their object the acquisition of the title, the general rule is to give to it an operation by relation at the date of the initiatory step, so far as may be necessary to protect the patentee against subsequent claimants of the same [108]*108property. As was said by the supreme court in the case of Shepley v. Oowan, 91 U. S. 338: “ Where two parties are contending for the same property, the first in time in commencement of proceedings for the acquisition of title, when the same are regularly followed up, is deemed to be the first in right.” Smelting Co. v. Kemp, 104 id. 647; Ross v. Barland, 1 Pet. 655; Hydenfeldt v. Daney G. & S. M. Co. 93 U. S. 634; Taylor v. Brown, 5 Cranch, 234. See, also, Langdeau v. Hanes, 21 Wall. 521; Marsh v. Brooks, 8 How. 223; Polk's Lessee v. Wendall, 9 Cranch, 87; 5 Wheat. 293; Hoofnagle v. Anderson, 7 id. 212; Steel v. Smelting Co. 106 U. S. 447; Chouerchaine v. Bullion M. Co. 4 Nev. 369.
The doctrine of relation cannot be invoked in aid of the town site patent as against the Smoke-house mining claim, for that patent did not purport or attempt to convey any interest in that, or any other mining claim or possession, within the boundaries of the town site. The town site patent could only convey title to the public lands. The grounds within the boundaries of the Smoke-house location ceased to be public lands when that location was made (Silver Bow M. & M. Co. v. Clark, supras); and if the town site patent had attempted to include such grounds, it would have been so far void. If the lands had been previously disposed of, or reserved from sale, the patent would be inoperative to pass the title, and objection to it could betaken on these grounds at any time and in any form of action. Steel v. Smelting Co. supra; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378. The location of the Smoke-house mining claim was the first step taken by either of these parties towards the acquisition of title to the property in dispute; and if this ground had been, in fact, included in both patents, the rule would be as held in Shepley v. Oowan, supra, that where two parties are contending for the same property, the first in time in the commencement of proceedings for the acquisition of title, when the same are regularly followed up, is deemed to be the first in right.
If it is claimed that by any means the occupants of the [109]*109mineral grounds embraced within the Smoke-house location acquired any right or title thereto by virtue of such occupation prior to 1875, when the location was made, or that the town site patent relates back to any such rights, the answer is that in such a case the locators of the mining claim would become intervening claimants, and the prior rights of the occupants, if they had any, would be forfeited and lost by a failure to file an adverse claim.
Prior rights are lost by a failure to contest the claim of the intervening claimant, as provided in the act of 1872. Stark v. Storrs, supra.
If the locators of the Smoke-house claim had made application for a patent in 1875, immediately after the location, as they might have done, all that (the town site occupants of the ground embraced within the location could have done would have been to have filed an adverse claim, and had the right to the possession of the ground adjudicated. If these were all their rights then, they acquired no additional ones by virtue of the issuance of the town site patent, which excluded from its operation all mining claims and possessions, and conveyed the town site to the probate judge for town site purposes in trust for the use and benefit of the several occupants, according to their respective interests.
Matter is alleged in the answer as an estoppel, and on the trial the defendants sought to prove that the former owners of the Smoke-house claim, and while so the owners thereof, and knowing that said claim would be within the boundaries of the proposed town site of Butte, joined others in petitioning the probate judge to enter said town site for a patent, and in accordance therewith the town site was patented, and the owners of the Smoke-house claim accepted from the probate judge deeds to lots on said claim; and that these owners declared that they would not interpose or assert their title to this mining claim, or any rights thereunder, as against the town site patent, or those claiming under the same. This testimony was rejected, and error assigned accordingly.
[110]*110All these matters alleged as an estoppel took place and were in existence before the time that respondents made their application for a patent to the Smoke-house claim. If they were estopped at all, they were estopped from applying for or receiving a patent. Subsequent to these alleged acts and declarations, the owners of the Smoke-house claim took the necessary steps for procuring a patent thereto. In order to do so, they filed their application as the law required in the proper land office, showing a compliance with the laws, together with a plat and the field-notes of their claim, made by and under the direction of the surveyor-general of the United States for Montana, showing the boundaries of their claim, and they also, previously to the filing of the application, posted a copy of the plat, with a notice of their intended application, in a conspicuous place-on the claim. When such application was filed in the land office, the register published a notice that such application had been made, for the period of sixty days, in a newspaper nearest to such claim; and also posted a notice in his office for the same period. It is a conclusion from the issuing of the patent that all these requirements were complied with in making their application. Steel v. Smelting Co. supra.
The object of this exceeding care and publicity in applying for a patent for a mining claim is to give notice to any and all adverse claimants that such application has been made, in order to give them an opportunity to contest in the manner provided by law, and before a court of competent jurisdiction, the applicant’s right to a patent for the ground he claims. The conclusiveness of the title by patent grows out of the fact that this opportunity has been given to all adverse claimants to contest the right of the patentee.' The theory of the law is that, unless the adverse claimant sets up his title, and controverts the right of the applicant for a patent during the period prescribed for this purpose, he thereby loses his right or title, whatever it may be, and cannot thereafter assert the same. Therefore, if the respondents were not entitled to a patent for the Smokehouse claim for the reason that they were estopped from [111]*111applying for and demanding the same, an adverse claim by appellants would have made this fact to appear, and defeated their application.
' After the posting of the plat on the claim, and during-the period of publication of notice, all adverse claimants are charged with notice of the application, and if they let. this period pass without objecting to the issuance of the patent, if they stand by and do not make known their adverse claim or title, they are estopped from thereafter attacking the patent for any cause that existed at the date-of the application. Objections that ought to have been made to the issuance of a patent cannot be made after the same is issued, except in certain well-defined cases,'ks that the land had been' previously sold, or that the land department had exceeded its jurisdiction. The respondents-might well have signed a petition to the probate judge, asking that he enter the town site for a patent, and been active in procuring the same; for they knew that such a. patent could not in any manner affect their title to the Smoke-house location, which existed as a grant from the government in their favor, prior to the application for the-town site patent, and prior to the time they signed a petition therefor. They knew, and so did the appellants, that the act authorizing the issuance of the town site patent forbade the acquisition of title to any mine, mining claim, or possession within the boundaries of the town site, by virtue-of such patent.
No one could have been deceived by the act of the owners of the Smoke-house claim in signing a petition for, or taking -an active part in procuring, the town site patent.. And if such owners accepted deeds from the probate judge for lots included within the Smoke-house location, they received deeds for land that they already had a title to,, and no one was deceived or injured thereby. And if they declared that they would make no claim by virtue of their-Smoke-house location, still the location remained a valid mining claim, to which the appellants and no one. elSfr [112]*112could acquire any title by virtue of the town site patent. Their declaration did not repeal the act of congress, which declares that no town site patent shall convey any interest in or to any mine, mining claim, or possession. It did not change a valid mining claim into a town site. It did not authorize to be done what the government under the law could not do; and it does not appear that the appellants were, in any manner, induced to act upon such declarations to their injury or otherwise. It does not appear that one solitary act has been performed by any one in consequence of these declarations, nor that they were made with the intent that any one should act upon them. Unless the declaration dr representation is acted upon, an estoppel cannot arise.
The judgment in each of the three cases named is affirmed, with costs in each.
Judgment affirmed.
Galbraith, J., concurred.