The record in stating the judgment below does not show any findings of fact by the court, which tried the case without the intervention of a jury. The order for the judgment necessarily implies that the facts were found by the court upon which the order was made, but, like a verdict of a jury, the findings should properly appear in the record. The omission, it is true, was not noticed by counsel in the supreme court of the territory, nor has it been called to our attention. It was probably a mistake of the copyist in making the transcript, for the argument has proceeded upon the theory that such findings were made. The plaintiff assigns as one of the errors committed that the court erred 'in finding for plaintiff on all of the issues presented in the pleadings.' We have therefore passed by this omission, and permit the party who defends the ruling below to supply the defect.
In Deffeback v. Hawke, which was before us at October term, 1885, (115 U.S. 392, 6 Sup. Ct. Rep. 95,) we examined at some length the legislation of congress excepting lands containing minerals from sale or other disposition under laws providing for the alienation of portions of the public domain either for settlement or in aid of public institutions or works of internal improvement. It appeared upon such examination that until the act of July 26, 1866, such exception was general, but by that act the policy of reserving mineral lands from sale or grant was changed. Such lands of the public domain, both surveyed and unsurveyed, were thereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who had declared their intention to become citizens, subject to such regulations as might be prescribed by law, and to the local customs and rules of miners in mining districts, so far as they were not in conflict with the laws of the United States. 14 St. c. 262, § 1, p. 251. By the act of May 10, 1872, to promote the development of the mining resources of the United States, (17 St. p. 94, c. 152, § 9,) the first section of the act of 1866, declaring the mineral lands of the United States free and open to exploration and occupation, was repealed, and in place of it a provision was adopted declaring that 'all valuable mineral deposits,' in lands belonging to the United States, both surveyed and unsurveyed, were free and open to exploration and purchase, subject to conditions similar to those in the original act. The Revised Statutes, which embody the law of the United States in force on the 1st of December, 1873, in its treatment of mineral lands, provided that 'in all cases lands valuable for minerals' should be reserved from sale, except as otherwise expressly directed by law, (section 2318;) but at the same time repeated the declaration, that all valuable mineral deposits in lands belonging to the United States should be free and open to exploration and purchase. Section 2319. After that date title to mineral lands, known at the time to be valuable, could only be acquired under provisions specially authorizing their sale, except in certain states, which exception does not affect the question now before us. Chapter 8, tit. 32, Rev. St., contains the law for the reservation and sale of town-sites on the public lands. Among other things it provides for the entry, at the local land-office, of any portion of the public lands occupied as a town-site by its corporate authorities, or, if the town be unincorporated, by the judge of the county court of the county in which the town is situated; the entry to be 'in trust for the several use and benefit of the occupants thereof, according to their respective interests,' and the execution of the trust and the disposal of the lots in the town to be conducted under such regulations as may be prescribed by the legislative authority of the state or territory in which the town is situated. It also provides that the entry shall include only such land as is actually occupied by the town, and the title to whih i § in the United States; and declares that 'where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession, and the necessary use thereof;' with the reservation, however, that nothing in this section shall be so construed as to recognize any color of title in possessors for mining purposes as against the United States. By another section of the chapter, and near its close, it is enacted that 'no title shall be acquired' under its provisions 'to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws.' Section 2392. In Deffeback v.