15 P. 26 | Ariz. | 1887
The question presented in these cases is between a title derived from the Tombstone town-site patent, and one derived from a patent to the Mountain Maid Mining Company. The date of entry of the town-site is April 9, 1880. The mining patent was dated August 15, 1882. February 25, 1879, there was filed a notice of location of the Mountain Maid mine. This notice is so uncertain that the land claimed cannot be identified. It is aided by no evidence whatever. November 20, 1880, the record was amended, and on August 15, 1882, a patent was issued to the land described in the amendment. This amendment was after the entry of the town-site. The mining title cannot be superior to the town-site title, unless the location, earlier than the town-site, be held to have fixed the title. A location of a mining claim, to fix the title as against after acquired rights by entry and patent, should be sufficiently clear to designate the ground claimed, and should be marked on the ground by monuments, showing the extent of possession. If the location on its face be uncertain, the uncertainty could .be aided by evidence of the possession, or of monuments; but a location notice, on its face uncertain and without evidence of what land was occupied, cannot be evidence for any purpose. An amendment afterwards made, describing different land or making certain what was uncertain, cannot revert back to the original defective location. The entry of the town-site intervening after the.first location and before the amendment must be prior in right as it is prior in time. If this were not so, it would
We have reviewed with care the Butte City Smoke-House Lode Cases, 6 Mont. 397, 12 Pac. 858, and King v. Thomas, 6 Mont. 409, 12 Pac. 865. We concur with these cases in holding that all mines, mining claims, and possessions held under existing laws are excluded from the terms of a town-site patent; that mining claims, located before the town-site entry, are paramount thereto. We also go so far as to say that lands upon which is any mine of gold, silver, cinnabar, or copper, or known to be such mineral lands, at the time of a town-site entry, are not included in such town-site entry. If those cases are to be construed as holding that if minerals be discovered in lands conveyed by a town-site patent, after the patent, and located as such, that such after-discovery and location become paramount to a town-site patent, and take such lands out from the operation of such patent, we do not concur with them. The question does not arise in the SmokeHouse Cases. In the King Case there is some doubt as to whether this question is passed upon. The court in that ease properly held that whether the lands were as a matter of fact mineral lands is res adjudicata by the patent to the mining claim. They held that the Silver King was a valid mining claim at the time of the issuing of the town-site patent. This view of these cases will meet with approbation, and clearly states the law as we understand it. The case before us, however, seeks to apply the principle to an invalid mining claim, prior to the town-site patent, and without proof that any mine existed prior to the town-site entry, or that the lands
We therefore hold that the Tombstone town-site patent is paramount to the patent to the Mountain Maid mine. The judgments are affirmed.
Wright, C. J., concurs.