methods, and without resort to force or violence. The expressions found in the cases noted leading to a contrary inference were not intended to be of controlling weight. There may be some room for doubt as to the correctness of the conclusions reached by us; but we are forced to accept one of the two constructions. We have adopted that which to us seems to be in consonance with the general theories of the public land laws, according to the tenor of all the decisions promulgated by the court of last resort. We can conceive of no middle ground. If prior occupants for townsite purposes were to be considered as being entitled to equities as against the subsequent mining locators, there would have been no necessity for the legislation found in section sixteen of the act of March 3, 1891. The conclusions here reached are in harmony with the views of the supreme court of Montana1 and the supreme court of Arizona.2

171. Correlative rights of mining and townsite claimants recognized by the land department prior to the act of March 3, 1891.-In passing upon applications for patents to mineral lands within the claimed limits of townsites, the land department has until within a comparatively recent period proceeded upon the theory that there were correlative or reciprocal rights existing between townsite occupants and mineral claimants which were to be regarded and properly provided for when patents were issued.

General Burdett, when commissioner of the general land office, thus expressed his views:

"The townsite laws clearly contemplate that towns will exist in mining localities; by clear implication,

1 Talbot v. King, 6 Mont. 76, 9 Pac. 434; Silver Bow M. and M. Co. v. Clark, 5 Mont. 406, 5 Pac. 570; Butte City Smokehouse Lode Cases, 6 Mont. 397, 12 Pac. 858; Chambers v. Jones, 17 Mont. 156, 42 Pac. 758.

Tombstone Townsite Cases, 15 Pac. 26; Blackmore v. Reilly, 17 Pac. 72.

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"townsite entries are to be permitted on mineral lands. This is indicated by the clause excepting title to mines "from the title acquired by the town. It is inevitable "that where the surface is suitable, it will, in a mining vicinity, be populated, and attain the character of a "town or city. Where any branch of business flour"ishes there capital and population will concentrate. "The various trades and callings will center there. "Hotels will be a necessity. Dwellings will be built, "and permanent homes established; all the various "interests which constitute valuable property rights as "connected with the soil will be created. And this is "not necessarily antagonistic to the miners. The pro"tection of municipal government is in the miner's interest, as it is in the interest of any other class of "business men."1

The secretary of the interior had previously held that persons in possession of the surface of a lode claim were adverse claimants within the meaning of the mining law of 1866, and were entitled to be heard in the local courts before patent was issued.2

Out of this and similar rulings, originated the practice of inserting reservation clauses in mineral patents to lode claims of the following character:

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"Excepting and excluding from said patent all town"site property rights upon the surface, and all houses, buildings, lots, blocks, streets, alleys, or other municipal improvements on the surface of said mining claim "not belonging to the grantees, and all rights necessary or proper to the occupation, possession, and enjoy"ment of the same."

Such reservations, however, were not inserted, it seems, where the discovery and location of the mining claim antedated the town settlement.3

1 Townsite of Central City, Colo., 2 Copp's L. O. 150.

Becker v. Central City Townsite, Id. 98. See, also, Papina v. Alderson, 10 Copp's L. O. 52.

Monroe Lode, 4 L. D. 273.

In townsite patents, in addition to the limiting clause sanctioned by section twenty-three hundred and ninetytwo of the Revised Statutes the following proviso, or its equivalent, was inserted.

"That the grant hereby made is held and declared to "be subject to all the conditions and restrictions con"tained in section twenty-three hundred and eighty"six of the Revised Statutes of the United States, so "far as the same are applicable thereto.'

A different rule prevailed with reference to placer patents, for the reason that in this class of mining claims the surface of the ground is absolutely necessary to the successful working of the mine; therefore, it could not be included in a townsite entry or patent, nor could any surface rights therein be reserved, under any circumstances, to the townsite occupant.2

But the courts have uniformly held these reservations void. The officers of the land department are merely agents of the government, and have no authority to insert in a patent any other terms than those of conveyance, with recitals showing compliance with the conditions which the law prescribes. Could they insert clauses in patents of their own description, they could limit or enlarge without warrant of law.3

In accordance with this action by the courts, the land

Turner v. Lang, 1 Copp's L. O. 51; Central City Townsite, 2 Copp's L. O. 150; Butte City Townsite, 3 Copp's L. O. 114, 131; Hickey's Appeal, 3 L. D. 83; Commissioners' Letter, Copp's Min. Dec., p. 207; Townsite of Eureka Springs v. Conant, 8 Copp's L. O. 3; Papina v. Alderson, 10 Copp's L. O. 52; Rico Townsite, 1 L. D. 556; Vizina Cons. M. Co., 9 Copp's L. O. 92; Esler v. Townsite of Cooke, 4 L. D. 212.

'Townsite of Butte, 3 Copp's L. O. 114; Townsite of Deadwood, 8 Copp's L. O. 18, 153; Commissioners' Letter, Copp's Min. Dec., p. 156; Kemp v. Starr, 5 Copp's L. O. 130.

*Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628; Deffeback v. Hawke, 115 U. S. 392, 6 Sup. Ct. Rep. 95; Talbot v. King, 6 Mont. 76, 9 Pac. 434; Butte City Smokehouse Lode Cases, 6 Mont. 397, 12 Pac. 858.

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department considers it to be fully established as a principle of law that the government could not (at least prior to March 3, 1891) by its patent "partition lands "horizontally," and the practice of inserting these correlative reservations ceased.1

172. Section sixteen of the act of March 3, 1891, is limited in its application to incorporated towns and cities. We have in a previous section 2 quoted the provisions of the act of March 3, 1891, so far as it supplements the prior existing townsite laws. It is manifest that this supplemental legislation was intended to apply only to cases of incorporated towns, the territorial limits of which are subject to an organized form of municipal government. As to towns and settlements upon the public mineral domain for townsite purposes which are unincorporated, including those which must be entered and patented to the county judge, or the judicial officer performing his functions, as well as all other classes of townsites, the townsite laws, as heretofore understood and explained by the courts, as shown in the preceding sections, remain in force, and are unaffected by the act of March 3, 1891. We are not aware that any judicial interpretation of this act has yet been made. We reason simply from the language of the text and the application of the familiar rule, Expressio unius est exclusio alterius. The land department has not, to our knowledge, issued any circular instructions giving its views upon the act in question; nor do we find that the act has been referred to by the department in any of its decisions, except in a case involving the townsite of Juneau, in the district of Alaska.

1W. A. Simmons et al., 7 L. D. 283; Antediluvian Lode and Millsite, 8 L. D. 602; Secretary's Letter, 5 L. D. 256.

See, ante, § 166.

The act providing a civil government for Alaska, passed May 17, 1884,1 provided for a government for this district, and made it a land district of the United States, over which was extended only the mineral laws of the United States. The general laws of Oregon, then in force, were declared to be the law of the district. The act also preserved the status quo as to use and occupancy for other than mining purposes until congress should act, and declared that nothing in the act should be construed to put in force in said district the general land laws of the United States.

By section eleven of the act of March 3, 1891, (section sixteen of which we are now considering,) the provisions of section twenty-three hundred and eighty-seven of the Revised Statutes (the townsite law) were made applicable to Alaska, with the proviso that the entry of the townsites should be made by a trustee or trustees designated by the secretary of the interior, for the use and benefit of the occupants.

The trustee appointed by the secretary made application to enter the townsite of Juneau, against which a protest was filed by a mineral claimant, and the question involved was the mineral or non-mineral character of the land.

Upon the first hearing the burden of proof was placed upon the townsite claimants; the finding was, that the land was mineral, and the secretary directed that the townsite entry should be canceled as to the land covered by the mineral location, He considered as a factor section sixteen of the act of March 3, 1891.2 Subsequently the department vacated this decision, reinstated the entry, and announced the rule that in order to except mineral land from the operation of a townsite or other entry made in pursuance of law, the land must

123 Stats. at Large, p. 24.

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