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,” *569and believing said land to be unoccupied land of tbe United States and said vein or lode open to location, duly located a claim “upon and along said vein” upon and across said land; that the United States, in its grant of this land to the Northern Pacific Kailway Company, reserved and exempted therefrom “all minerals found in the soil of said real estate,” and that the railway company made the same reservation in its conveyance to defendant; that prior to June 30, 1897, the proper mineral land coimmissioners of the United States reported this land as nonmineral, and classified it as such, whereupon the railway-company applied to the Commissioner of the General Land Office for leave to enter it, which application ivas approved, and on July 12, 1897, a patent was issued to the railway company, which reserved “all minerals contained in the soil” of said land, and that afterward the railroad company conveyed to the defendant, making the same reservation; that on or about February 23, 1900, plaintiffs informed defendant that they had discovered this vein, and had located and staked a mining claim upon said land, and that the claim, if properly worked, would be of great value; that by reason of the grant to the defendant and his predecessors, and the reservations therein contained, the plaintiffs and defendant were in doubt as to their respective legal rights in and to the aforesaid vein; that it was recognized by the respective parties that such rights could only be determined by litigation, which might be further complicated by7 the assertion of the rights of the government and the railway company, respectively; that for the purpose of avoiding such litigation and preventing costs, expenses and delays, and for the purpose of amicably settling their differr2i¡ces¡ and in consideration of the discovery and location of this claim, and of the mutual promises and agreements between the parties, it was agreed that plaintiffs should transfer to the defendant an undivided one-third interest in said lead or lode, and that defendant should transfer to plaintiffs an undivided two-thirds interest in said lead or lode, together with the necessary amount of real estate covered by said location to enable the lode to be operated, and *570also a right to the use of the waters of Elk creek necessary to the mining and treatment of ores and the operation of said mine; that the respective transfers should be mutually made within a reasonable time frolm the date of said agreement; that afterwards, and prior to the commencement of the suit, and prior to the refusal of defendant to make such transfer, plaintiffs, relying upon the agreement of defendant as aforesaid, in good faith expended large sums of money in an attempt to interest capital in the operation, exploration and development of said lode or lead; that thereafter, and prior to the commencement of the suit, plaintiffs offered to convey to said defendant an undivided one-third interest in said lode or claim, and demanded that defendant should comply with the conditions of the agreement on his part, and convey to> the plaintiffs an undivided two-thirds interest therein, hut that defendant lias failed a.nd refused so- to do.
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.”
*571The demurrer was based upon the grounds that the complaint did not state facts sufficient to constitute a cause of action, and that it was ambiguous, uncertain and unintelligible in certain respects set forth in the demurrer.
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 *572whether mineral or not, must be determined as of date of the grant, and, if it was not then known to be mineral, it passed by the grant. This condition seems to have been recognized by the Supreme Court of the United States until it had for consideration the case of Barden v. N. P. Ry. Co., 154 U. S. 288, 14 Sup. Ct. 1030, 38 L. Ed. 992, wherein it was decided that all mineral land except iron and coal, whether known or unknown, was excluded from the grant. Subsequent to this decision Congress passed an Act “to provide for the examination and classification of certain lands in the states of Montana and Idaho.” (Act Eeb. 26, 1895, c. 136, 28 Stat. 683.) Section 7 of this Act provides: “No patent or other conveyance or title shall be issued or delivered to the Northern Pacific Railroad Company for any lands in such districts until such lands shall have been examined and classified as non-mineral.” Under the provisions of this. Act, mineral land commissioners were appointed by the government to examine and classify, as to’ their mineral character, all lands, under the aforesaid grant, claimed by the Northern Pacific Railroad Company in the above-mentioned states. The complaint alleges full compliance rvith this Act, and the issue of patent by the United States to the Northern Pacific Railway Company, the successor in interest to the Northern Pacific Railroad Company, the grantee named in the original grant.
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*573leged to have been patented to defendant’s predecessor in interest. Section 2319, Kev. St. U. S. (U. S. Coinp. St, 1901, p. 1424), provides* “All valuable mineral deposits in mineral lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands, in which they are contained, to occupation and purchase.” Under this section, in order to malic a location, surface ground, including the vein or lode, must be appropriated, and such surface ground must belong to the United States. (State ex rel. Anaconda Copper Mining Co. v. District Court, 25 Mont. 504, 65 Pac. 1020, and cases cited.) Under plaintiffs’ own allegations, none of the surface ground of the land in question was owned by the United States, it having been patented to the Northern Pacific Railway Company. There can be no doubt, therefore, that plaintiffs, by their attempted location of a mineral claim upon the land in question, acquired no rights at all. According to their own showing the “minerals in the soil” was the only thing remaining in the government. This court knows of no statute of the United States which provides for the acquirement, of “mineral in the soil,” aside from the mineral statute above quoted, which requires the location of certain surface ground, including the minerals sought to be obtained. Plaintiffs, do not-claim to be •the successors in interest of the United States in and to the “minerals in the soil,” otherwise than by the making of a mining location under the laws of the United States.
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 *574trespass. (Clipper M. Co. v. Eli M. Co., 24 Sup. Ct. 632, 48 L. Ed.. — , and cases cited.) We are therefore clearly of the opinion that the pretented location of a mining claim by the plaintiffs was absolutely -of no force or, effect.
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.
*575Per Curiam.For the reasons stated in the foregoing opinion, the judgment is affirmed.
Mr. Justice Holloway, being disqualified, takes no part in this decision.