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upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class open to sale. Its judgment upon these matters is that of a special tribunal, and is unassailable except by direct proceedings for its annulment or limitation. Steel v. St. Louis Sm. Co., 106 U. S. 447.

155. "It is the established doctrine expressed in numerous decisions of this court, that whenever Congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the Land Department to issue a patent for such land upon ascertainment of certain facts, that Department has jurisdiction to inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition or mistake, its determination is conclusive against collateral attack." Barden v. N. P. R. R. Co., 154 U. S. 288.

156. The Land Department cannot except any part of the surface ground from the patent of a mining claim based on a prior location. If it does, its act to that extent is void, and it may be so declared in an action at law. Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434.

157. "It has been often said by this court that the land officers are a special tribunal of a quasi judicial character, and their decisions of the facts before them is conclusive. And we are not now controverting the principle that where a contest between individuals, for the right to a patent for public lands, has been brought before those officers, and both parties have been represented and had a fair hearing, that those parties are concluded as to all the facts thus in issue by the decision of the officers." United States v. Minor, 114

U. S. 233.

158. The Supreme Court does not interfere with the title of a patentee on an alleged mistake of fact, or from wrong conclusions drawn from the testimony by the Land De partment. It is only a case of fraud that will warrant a court in looking into the evidence. Lee v. Johnson, 116 U. S. 48.

159. The issuance of a mineral patent renders res judicata, so far as the Land Department is concerned, the fact that the land was known to be mineral in character. Blackmore v. Reilly, 17 Pac. Rep. 72. (Citing and

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following Tombstone Town Site Cases, 15 Pac. Rep. 26.)

160. A patent cannot be vacated or limited in proceedings where it comes collaterally in question. It cannot be vacated or limited by the officers themselves. Steel v. St. Louis Sm. Co., 106 U. S. 447.

161. "The patent is but evidence of a grant, and the officer who issues it acts ministerially and not judicially. If he issues a patent for land reserved from sale by law, such patent is void for want of authority. But one officer of the land office is not competent to cancel or annul the act of his predecessor. That is a judicial act and requires the judgment of a court." Mullan v. United States, 118 U. S. 271. (Quoting approvingly, United States v. Stone, 2 Wall. 525.)

162. The examination of an application for a patent may go beyond the papers in the case and into the general records of the Land Department, and if any part of the premises have been previously disposed of, an exception should be inserted in the patent. Seven Thirty Lode, 1 C. L. O. 82.

163. No one has power to cause the issuance of a patent without the authority of some statute. McGarrahan v. New Idria M. Co., 49 Cal. 331; 11 Mor. Min. Rep. 641.

164. The Secretary of the Interior exercises a supervisory authority over the Commissioner of the General Land Office, who, in turn, exercises the same authority over the local land officers. A purchaser of land upon the issuance of a certificate of entry by the local land office takes title subject to the reexamination of the entry and its possible cancellation. Sweigart v. Walker, 30 Pac. Rep.

162.

165. The Land Department cannot include in a town site patent any mine, mining claim or possession. If such is included in the patent, the same to that extent is void. Talbott v. King, 6 Mont. 76: 9 Pac. Rep. 434; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574.

166. Where a patent issues for a lode which crosses a lode already patented, the surface ground in conflict is excepted from the second patent. James B. Belford, 2 C. L. O. 178.

167. Where a portion of a claim already entered is shown to belong to other parties than those named in the register's certificate,

the duplicate receiver's receipt may be filed | to reconvey the land covered thereby, suit with an assignment thereon when a patent to vacate the patent will be recommended by can be issued. Seymour v. Wood, 4 C. L. O. 82. the Land Department. United States v. Rum168. Where application for patent is made sey, 22 L. D. 101. by an administrator of the estate of a decedent, patent will issue to the heirs, generally, of the decedent. Henry Wood, Adm'r, 2 L. D. 762.

169. A patent should not issue to a person known to be deceased, but to his heirs, generally. Clara Huls, 9 L. D. 401; Instructions, 13 L. D. 49; Isom C. Murray, 18 L. D. 542. 170. Where the possessory title to a mining claim becomes vested (either by location or transfer) in one who dies before applying for a patent, if application and entry are made by the heirs, devisees, executor or administrator, patent will be issued in the name of the decedent, the Land Department refus ing to pass upon the title of those claiming under the decedent. Com'r to Helena Office, March 25, 1896, In re Broadwater Placer.

171. A patent issued upon a coal entry, which was made for land not claimed, through error of description, may be surrendered to the Land Department, the land reconveyed to the government, proof furnished of nonalienation of the land patented, and the patent may be canceled and a new patent issued after amendment of the entry. Richard Gill,

8 L. D. 303.

172. In view of the errors in the first patent and the evidence to the effect that the resurvey covers the identical ground originally applied for, a new patent will be issued. Independent Quartz Mine, 11 C. L. O. 227.

173. Patent was issued based on an erroneous survey, but the notice of application for patent was so nearly correct as to be sufficient to put adverse claimants on their guard. In view of these facts, on the filing of a quitclaim deed of the patented land from the present owner to the United States, together with an abstract of title, a new and correct patent may be issued in the name of the original patentee without requiring republication. W. C. Childs, 13 C. L. O. 53.

174. Where a mineral patent issues based on an erroneous survey, a new patent in lieu thereof may not be issued without new notice, based on a correct survey, where the original survey is so erroneous as not to cover any portion of the claim. If such patentee refuses to surrender the erroneous patent and

175. If a patent has issued, erroneous or defective in some respect, after due and legal notice of application therefor, a new and correct patent may be issued upon the performance by the claimant of the following: The outstanding patent must be surrendered; the land described in said patent must be reconveyed to the United States, and a properly certified abstract of title must be furnished, showing title to the described land to have been in the person surrendering the patent and making such reconveyance at the dates

of surrender and of reconveyance, whereupon records, and a new one issued. Com'r to G. E. the patent may be formally canceled on the Williams, June 5, 1893; Osmyn Harkness, 2

C. L. O. 98.

176. Where, however, the error in the patent was caused by an error in the survey of the claim, and the notices of application, based on said survey, failed to describe the claim with sufficient certainty to place adverse claimants on their guard, the first step toward the issuance of a new patent should be a new official survey of the claim. Then the steps above prescribed should be taken, and thereafter new notice of application for patent should be given in the usual manner, with the same rights to adverse claimants as under an original notice. Com'r to La Grande Office, May 26, 1896, In re Webfoot and Willamette Placers.

177. Patent cannot issue where the published notice of application incorrectly described the tracts embraced in a placer claim taken by legal subdivisions. Alvin B. Preston, 10 C. L. O. 34.

178. The respective undivided interests of co-patentees of a mining claim will not be stated in the patent. Com'r to Daniel Seymour, May 29, 1891.

14. Lode- Placer.

(See VEINS and PLACER, pp. 6 and 321.) 179. A placer patent conveys to the placer patentee full title to all lodes or veins within the territorial limits not then known to exist. Nothing disclosed after the issuance of patent can limit the effect of the patent or except from its scope any vein or lode not so

known. Sullivan v. Iron Silver M. Co., 143 | of the application for such patent. "It is U. S. 431.

180. A vein or lode that has never been claimed; that has not been located; that has not been marked out by metes and bounds, and in which there has been no actual development, is not excepted from a placer application and patent. Iron Silver M. Co. v. Sullivan, 5 McCrary, 274; 16 Fed. Rep. 829.

181. A lode within the limits of a patented placer claim, to be excepted from the placer patent, must have been known to exist at date of the application for the placer patent. Mere belief in the existence of the lode is not knowledge thereof. Iron Silver M. Co. v. Reynolds, 124 U. S. 374; S. C., 116 U. S. 687; 15 Mor. Min. Rep. 591 (first trial); United States v. Iron Silver M. Co., 128 U. S. 673. (Affirming S. C., 24 Fed. Rep. 568.)

182. A placer patent conveys title to a lode not then known to exist. Raunheim v. Dahl, 6 Mont. 167; 9 Pac. Rep. 892. (See S. C., 132 U. S. 260.) Montana Copper Co. v. Dahl, 6 Mont. 131; 9 Pac. Rep. 894.

183. A patent for a placer claim carries title to all veins or lodes within said claim not known at date of application for placer patent. Maggie Lode, 14 L. D. 655.

184. A lode to be excepted from a placer patent must have been known to be valuable enough to justify exploitation at date of application for the placer patent. Brownfield v. Bier, 15 Mont. 403; 29 Pac. Rep. 461.

185. Lodes unknown at date of placer application, but discovered prior to issue of patent, do not exclude surface ground or the lode from placer patent. War Dance Lode v.

Church Placer, 1 L. D. 549.

186. To be excepted from a placer patent a lode must have been known to exist at the date of the application for such patent. Iron Silver M. Co. v. Mike & Starr G. & S. M. Co., 143 U. S. 394; Sullivan v. Iron Silver M. Co., 143 U. S. 431.

187. A known vein to be excepted from a placer patent must possess qualities not required to render a vein subject to location under section 2320, United States Revised Statutes; i. e., it must be capable of being profitably worked at date of placer application. Montana Central Ry. Co. v. Migeon, 68 Fed. Rep. 811.

188. To be excepted from a placer patent a lode need not have been located at date

enough that it be known, and in this respect, to come within the intent of the statute, it must either have been known to the applicant for the placer patent or known to the community generally, or else disclosed by workings and obvious to any one making a reasonable and fair inspection of the premises," etc. Iron Silver M. Co. v. Mike & Starr

G. & S. M. Co., 143 U. S. 394; Sullivan v. Iron Silver M. Co., 143 U. S. 431; Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591; Iron Silver M. Co. v. Reynolds, 124 U. S. 374; Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611.

189. The formal location of a lode is not necessary to exclude it from a placer patent. the only requisite to such exclusion by operation of law being (1) that it was known to exist at date of application for the placer patent, and (2) that it was not included in such application. Railroad Lode v. Noyes Placer, 9 L. D. 26.

190. The title to all veins or lodes within a placer claim known to exist at date of the placer application for patent, and not included in such application, remains in the United States, and the placer patentee or his in the peaceable possession of such vein or grantees have no right to dispossess any one lode, whether the latter have any title or not. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

191. The question of whether or not a lode was known to exist within a placer claim at date of the application for placer patent is always one for an ultimate decision by the courts. After the Land Department has isdiction over the land patented has ceased, and sued a patent for the placer claim its juristhe only way the title of the patentee can be Iron Silver M. Co. v. Campbell, 135 U. S. 286. impeached is by proper proceedings in court.

192. The validity of a placer patent and its extent, as to conflict with a lode alleged to have been known at date of application for the placer patent, are questions that may be determined only by the courts. Peak Lode, 10 L. D. 200. (Overruled in South Star Lode, 20 L. D. 204.)

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193. Where it is ascertained by inquiry instituted by the Department, or determined by a court of competent jurisdiction, that a lode claim exists within the boundaries of

land covered by a placer patent, and that | such lode was known to exist at the date of application for such patent and was not applied for, it must be held that the land embraced in said lode claim is reserved from the operation of the conveyance by the general terms of exception therein, and that patent | may issue therefor if the law has been in other respects complied with. Pikes Peak Lode, 10 L. D. 200; 14 L. D. 47 (overruled); South Star Lode (review), 20 L. D. 204; Butte & Boston M. Co., 21 L. D. 125.

194. Where an application for patent under the lode mining laws is made for land already patented to another under the placer mining laws, the provision of section 2326, United States Revised Statutes, does not require the placer patentee to adverse the application of the lode claimant, as only those holding mining claims by possessory title are required to proceed under that law. Iron Silver M. Co. v. Campbell, 135 U. S. 286.

195. The issuance of a placer patent will not preclude the issuance of a patent for a lode claim situate within the placer, and known at the date of the application for the placer patent. Robinson v. Roydor, 1 L. D.

564.

196. A placer patentee cannot be called upon to defend his title against a lode claimant before the Land Department. Iron Silver M. Co. v. Campbell, 135 U. S. 286.

197. Where it appears to the satisfaction of the Land Department that a lode was known at date of placer application for patent, the lode, with surface ground twentyfive feet on each side, may be patented notwithstanding the issuance of the placer patent. Shonbar Lode, 1 L. D. 551; 3 L D.

388. See Pikes Peak Lode, 10 L. D. 200, and South Star Lode, 20 L. D. 204.

198. Where a placer patentee has filed an adverse claim against the application for patent for a lode claim within the placer, and has begun suit thereon, the Land Department will take no action, but will leave the parties to secure a determination of their rights in court. Iron Silver M. Co. v. Mike & Starr M. Co., 6 L. D. 533.

127 U. S. 348; 15 Mor. Min. Rep. 611. (Affirming 5 Mont. 274; 5 Pac. Rep. 856.)

200. A lode within a placer claim, known at date of application for placer patent, is carved out of the placer patent. Dahl v. Raunheim, 132 U. S. 260; Clary v. Hazlitt, 67 Cal. 286; 7 Pac. Rep. 701.

201. Section 2333, United States Revised Statutes, carves out of a placer patent all lodes known within the placer at date of application therefor, with twenty-five feet of surface ground on each side. Becker v. Sears, 1 L. D. 577.

202. In an action by the patentee of a placer claim to recover possession of a vein or lode within its boundaries, an answer alleging that the vein or lode was known to the patentee to exist at the time of applying for the patent, and was not included in the placer application, well pleads the fact which, under section 2333, United States Revised Statutes, precludes the patentee from having any right of possession of the vein or lode. Sullivan v. Iron Silver M. Co., 109 U. S. 550.

203. Where a vein or lode is known to exist under the surface included in a placer patent, and is not in a placer claimant's possession, and not mentioned in the claim on which the patent issues, the title to such vein or lode remains in the United States unless previously conveyed to someone else; and does not pass to the placer patentee, who thereby acquires no interest in such vein or lode. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

204. In procuring a patent for a placer claim under section 2333, United States Revised Statutes, where the claimant is also in possession of a lode or vein included within the boundaries of his placer claim, the patent shall cover both, if he makes this known and pays $5 per acre for twenty-five feet on each side of his vein, and $2.50 per acre for the remainder of his placer claim. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591.

205. A patent to a placer under section 2333, United States Revised Statutes, passes no title to a previously located lode within its boundaries. Whether or not the placer applicant knew of its existence is immaterial. Mantle v. Noyes, 5 Mont. 274; 5 Pac. Rep. 856. See S. C., 127 U. S. 348; 15 Mor. Min. Rep.

199. The owner of a lode claim covered by an application for a placer patent is not obliged to adverse the placer application, for his claim is excepted from the operation of the placer patent by law. Noyes v. Mantle, | 611.

206. After the issuance of a placer patent. the owner of a lode therein, located with surface ground twenty-five feet on each side, may not so amend his location as to take in a greater amount of surface ground. Becker v. Sears, 1 L. D. 577.

207. The owner of a lode alleged to have been known at date of application for patent to a placer (since patented) covering the lode, should apply for patent in the usual manner and allow the placer patentee to adverse should he desire. Olathe Placer, 4 L. D. 494.

208. An application for a lode claim in conflict with a patented placer may not be received by the Land Department as long as the placer patent remains outstanding. If the placer patent was issued upon false proofs, suit to vacate the same should be brought by the United States. Pikes Peak Lode, 10 L. D. 200. (Overruled by South Star Lode, 20 L. D. 204.)

209. On a sufficient showing by the applicant for a lode claim situate in a patented placer, a hearing may be ordered to determine whether the lode was known at the date of the placer application, with the view of recommending suit by the United States Attorney General to vacate the placer patent as to the conflict. Pikes Peak Lode, 14 L. D. 47. (Modified by South Star decision, 20 L. D.

204.)

210. The entry of a lode claim conflicting with a patented placer may be suspended to allow the lode claimant opportunity to show at a hearing that the lode was known at date of placer application, with the view to the recommendation of suit to vacate the patent for the placer claim. Rebel Lode, 12 L. D. 683. (Modified in South Star Lode, 20 L. D. 204.)

211. The limitation of the width of a lode claim within a placer, prescribed by section 2333, United States Revised Statutes, has no application to a case where a lode was covered by a valid location of the full legal extent prior to the application for placer patent, but the whole lode claim is excepted from the placer patent. Pikes Peak Lode, 10 L. D.

200.

212. Section 2333, United States Revised Statutes, has no application to a legally located vein or lode within the boundaries of a placer claim. Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611.

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213. Where an applicant for a lode patent shows the iode to have been known at date of application for a patented placer, with which it conflicts, instead of incurring the expense of recommending suit by the United States to vacate the placer patent as to the conflict, the Land Department may accept a reconveyance of the land to the United States, which would reinvest the Department with jurisdiction over it. Juniata Lode, 13 L. D. 715.

214. After the issuance of a placer patent lode was known to exist within the placer the Land Department will not assume that a claim because of the fact that a lode claim was located therein prior to the placer apat that date must be shown as a fact by plication. The known existence of the lode proof. Valley Lode, 22 L. D. 317.

215. In assuming to issue patent for a lode claim alleged to have been known at the date of application for a placer patent (since issued) covering the land, the Department will proceed with caution, and will require the known existence of such lode at that date to be clearly shown. Departmental decision of May 13, 1896, In re Lucy L. Lode.

216. A patent for a lode claim which is situated within the boundaries of a placer claim covered by a prior patent is not conclusive of the fact that the lode so patented was known to exist at date of the application for the placer patent, and hence excepted from the placer patent. Iron Silver M. Co. v. Campbell, 135 U. S. 286. See 17 Colo. 267; 29 Pac. Rep. 513.

217. A patent cannot embrace " a placer and ledge when such claims are not contiguous and the ledge is entirely without the placer location." Com'r to Henry O'Connor, Jan. 10, 1879, 5 C. L. O. 162.

15. Mill Site.

(See MILL SITE, p. 355.)

218. A mill site is a mining claim or possession under section 2392, United States Revised Statutes, and is excepted from a town site patent if located prior to town site entry. Hartman v. Smith, 7 Mont. 19; 14 Pac. Rep. 648.

16. Record.

219. When the patent has been executed by the President and recorded in the General

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