prepared the following- opinion for the court:
This is an appeal from a judgment against plaintiffs. The action was brought for the specific performance of a contract for the conveyance of land. Defendant, filed a demurrer to- the complaint, which was sustained by the court, and, plaintiffs having- elected to stand upon their colmplaint, judgment followed for defendant.
The cause of action set forth in the complaint is very peculiar, and the allegations of the complaint are, briefly, as follows: That on and prior to- February 23, 1900, the defendant was the owner, by conveyance from the Northern Pacific Railway Company, of section 23, township 3 south, of range 3 east, Gallatin county, and in the possession thereof; that he was also the owner of the right to use the waters of Elk creek in connection with said land; that plaintiffs, prior to February 23, 1900, discovered upon said land “a vein or lode of corundum- bearing rock,”
The complaint then sets forth the particular description of the land in question so to be conveyed, in the following language: “An undivided two-thirds (2-3) interest in and to a strip of land not exceeding 300 feet in width, running diagonally across the upper portion of section 23, in Tp. 3 south, of K. 3 east, in the county of Gallatin, state of Montana, at the place on said section where a certain lead or lode of corundum-bearing rock is contained and situate, said strip of land to conform to the meandering of said vein or lode of corundum-bearing rock, together with the necessary ingress and egress to the same for the purpose of mining, milling and marketing the ore therefrom, and otherwise prospecting and operating said lode, together with the right to such use of the water right of said defendant, consisting of the right to the use of the waters of said branch of Elk creek, in said county and state; as may be necessary for the proper operation, treatment, mining, milling and concentration of the ores of said lode, extending in a northeasterly and southwesterly direction from the principal point of discovery and development thereon of said lode to the limits of said section.”
The only question necessary to consider is, does the complaint state facts sufficient to constitute a cause of action ? In order to arrive at a correct conclusion as to the alleged rights of plaintiff in or to any of the land in question, we must consider and determine the character and legal effect of the patent to the land, under which defendant is alleged to have acquired ownership. To this consideration a brief review of the source of title seems important.
Defendant is alleged to claim ownership1 under a patent issued by the United States to the Northern Pacific Railway Company. In 1864 Congress passed an Act granting to- the Northern Pacific Railroad Company “every alternate section of land not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of the railway line as said company may adopt through territories of the United States,” extending from Lake Superior to Puget Sound. (Act July 2, 1864, c. 217, 13 Stat. 365.) At the next session Congress amended this grant by providing “that all mineral lands be, and the same are, hereby excluded froim the operation of this Act.” (Res. Jan. 30, 1865, No. 10, 13 Stat. 567.)
It is apparent from these provisions of the grant (which are all that are material to the questions herein involved) that mineral land did not pass by the grant. The Supreme Court of the United States have always held that the grant was, m praesenli, floating in its character until the line of tbe railroad was definitely located, when it attached to each alternate section mentioned in the grant, and became fixed in its character. When the land was surveyed by the government the particular sections mentioned in the grant were specifically designated, and the grant then took effect from its date. Under this decision the railway company insisted that the character of the land, as to
Now, what is the effect of this patent? Congress has provided for the disposition of various classes of public lands, and has authorized the officers of the Land Department to ascertain the character of such land and issue patent therefor. In the absence of fraud, imposition or mistake, the determination of that department as to the character of land is conclusive. (Barden v. N. P. Ry. Co., supra, and cases cited.) No fraud, imposition or mistake has been alleged, and, the patent having-been issued, it is conclusive that the land in question is non-mineral in its character.
Plaintiffs’ alleged rights were originated by the discovery and location of a mineral vein within the limits of the land al
There is still another objection to the validity of plaintiffs’ claimed location. The surface of the entire section No. 23 had been patented by the government to the Northern Pacific Railway Company, and conveyed to defendant. Under this conveyance the defendant was entitled to the exclusive possession of all the surface ground of such section. Any entry by any other person for any purpose, without defendant’s consent, was a trespass upon the rights of the defendant. It has been uniformly held by the Supreme Court of the United States that a valid mining claim cannot bo initiated by the commission of a
But again, the contract of which specific performance is sought is without adequate consideration; the only thing of value to be surrendered by plaintiffs is an alleged interest in a certain vein. We have seen that they had no such interest, and therefore could not surrender or convey the same or any part thereof.
But it is claimed by plaintiffs that the information given by them to defendant of the existence of this vein in his land was sufficient consideration. Of what value would such information be to defendant unless plaintiffs could also furnish to him the means of acquiring the subject-matter disclosed? By their own showing, the minerals contained in such vein were reserved by the United States. We do not consider the validity of this alleged reservation by the government (which is extremely doubtful: Silver Bow M. & M. Co. v. Clarke et al., 5 Mont. 378, 5 Pac. 570), because, if it is void, all “¡minerals in the soil” passed by patent, and plaintiffs show no interest therein.
Plaintiffs also allege that the settlement of the matters in dispute between the parties without litigation was sufficient consideration. While in some instances this might be sufficient to support some contracts, we are clearly of opinion that the allegations of plaintiffs in this case do not disclose such an ade-, quate consideration as is necessary to support a suit for specific performance. (Section 4417, Civil Code; Mayger v. Cruse, 5 Mont. 485, 6 Pac. 333; Finlen v. Heinze, 28 Mont. 548, 73 Pac. 123.)
Neither do we believe that the complaint contains a sufficiently specific description of the property involved to warrant any decree.
We advise that the judgment appealed frolm be affirmed.
For the reasons stated in the foregoing opinion, the judgment is affirmed.