"As the language in the statute implies, only public mineral lands of the United States are open to exploration, location, and purchase. It therefore follows that where land is appropriated or occupied under a claim of title or right - that is, where there is a prior location subsisting, or the land is reserved from sale, or has been previously granted by some valid and subsisting grant - no location can be made on it or title to it acquired from the United States, because, in contemplation of law, it does not belong to the United States."7

3 See act of Aug. 4, 1892; 27 Stat. L., 348; Sullivan vs. Schultz (1899), 22 Mont., 541.

4 Wheeler vs. Smith, 5 Wash. 704.

5 Sullivan vs. Schultz, 22 Mont., 541. 6 Steel vs. St. Louis Smelting, etc., Co., 106 U. S., 447; Johnson vs.

Towsley, 13 Wall, (U. S.), 83; Quinby vs. Conlan, 104 U. S., 426; Shepley vs. Cowan, 91 U. S., 330. 7 Amer. & Eng. Ency. of Law, Vol. XX, p. 688.

A properly constituted Indian reservation is not public land of the United States, until the Indian title is extinguished, and a mineral location thereon is void.8 Land included in a military reservation is incapable of being located upon;9 as are also forest and park reserves.10

The statute relating to the location of townsites on the public lands, provides that title shall not be acquired thereunder to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing law. Under this statute it is held that valid mining locations are, by operation of law, excepted from the grant and do not pass; nor does the townsite grant interfere with them.11

"In all the grants to the subsidized railroads, with the public land states and territories, all mineral and mineral lands, except coal and iron were reserved and excepted from the grant.12 By earlier decisions such reservations were construed to mean 'known mines' or lands, known to contain minerals at the time of filing the map of definite location, but the later cases overturn this doctrine and hold the language of the grant is to be construed to mean just what it says, namely, that mineral lands are reserved, and no right whatever, attaches thereto, until the issuing of a patent, unattended with any act of concealment, misrepresentation, or fraud on the part of the grantee."

8 Am. & Eng.Ency. of Law.Vol.XX, p. 690; Kendall vs. San Juan Silver Min. Co., 144 U. S., 658.

9 Ft. Maginnis, 1 Land Dec., 552. Whenever any lands containing valuable mineral deposits 6hall be vacated by the reduction or abandonment of any military reservation under the provisions of this act, the same shall be disposed of exclusively under the mineral land laws of the United States.

10 U. S. vs. Gear, 3 How. (U. S.), 120; Wilcox vs. Jackson, 13

Pet. U. S., 498. 11 Am.& Eng. Ency. of Law, Vol.

XX, page 691; Dower vs.

Richardson, 151 U. S., 661;

Robbins vs. Milwaukee, etc., R.

Co., 6 Wis., 636. 12 Barden vs. Northern Pac. R. Co., 154 U. S., 288; Smith vs.

Northern Pac. R. Co., 19 U. S.

App., 131.