Land Office, all power of the Executive Department over it has ceased, and title has passed, whether or not the patent has been delivered to the patentee, title by patent being by record and not by deed. Meader v. Norton, 11 Wall. 442; United States v. Schurz, 102 U. S. 378; Bicknell v. Comstock, 113 U. S. 149; United States v. Minor, 114 U. S. 233; Eltzroth v. Ryan, 89 Cal. 135; Alvarado v. Nordholt, 95 Cal. 116; Sayward v. Thompson, 11 Wash. St. 706; 40 Pac. Rep. 379; Rockwell v. Indian Widows, 1 L. D. 90; Schweitzer v. Ross, 8 L. D. 70; Stein v. Wogan, 21 L. D. 199; Spirlock v. N. P. R. R. Co., 22 L. D. 92.

220. When a patent for part of the public lands has been regularly signed by the President and sealed with the seal of the government, countersigned by the Recorder of the Land Office and duly recorded, the right to its possession by the grantee is perfect, and a writ of mandamus will lie to the officer in whose possession it is, to compel its delivery. United States ex rel. McBride v. Schurz, 102

U. S. 378.

221. A patent, signed, sealed and recorded, passes title and belongs to the patentee. Stein v. Wogan, 21 L. D. 199.

222. Patent title is title by record, and neither delivery to the patentee nor recording in the office of the county recorder are essential to its validity. Sayward v. Thomp son, 11 Wash. St. 706; 40 Pac. Rep. 379.

223. A patent regularly issued and recorded passes title without delivery to the patentee and terminates the jurisdiction of the Land Department. Schweitzer v. Ross, 8

L. D. 70.

224. The mutilation (without the consent and against the protest of the grantee) of a patent for public land, by the Commissioner of the General Land Office, after its due execution and recordation, and a mutilation of the record, cannot affect the validity or force of the patent. Bicknell v. Comstock, 113 U. S.

149.

225. A patent for lands must be signed in the name of the President, either by himself or by his duly appointed Secretary, sealed with the seal of the General Land Office and countersigned by the Recorder of the Land Office. Until all these have been done no patent has been executed. McGarrahan v. New Idria M. Co., 96 U. S. 316.

226. Failure of the General Land Office to record a patent does not defeat the right of the patentee. McGarrahan v. New Idria M. Co., 49 Cal. 331; 11 Mor. Min. Rep. 641. But see S. C., 96 U. S. 316.

227. Title by patent does not pass until the record of the patent is completed. Antonio D. Martinez, 1 L. D. 18-22.

228. A patent inadvertently issued, and not accepted by the patentee, may, with his consent, be canceled by the Land Department. Eastlake Land Co. v. Brown, 9 L. D. 322.

229. A patent is presumed to have been accepted by the patentee in the absence of a contrary showing. Alvarado v. Nordholt, 95 Cal. 116.

17. Relation.

230. The valid location of a mining claim is a grant from the government to the person making the location. The location is the inception of the grant, and the patent is its consummation. The grant is kept alive by representation (work). A failure to represent forfeits the grant, and makes void the title acquired by location, and the ground thereupon becomes again subject to location and purchase. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345.

231. A valid location is the inception of a grant from the United States, the patent being the consummation, and the property located may not be sold by the United States unless forfeited. Renshaw v. Switzer. 6 Mont.

464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345; Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153. See S. C., 130 U. S. 291.

232. “It [location] is a title given by an act of Congress, and hence equivalent to a patent of the United States." Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434.

233. A patent relates back to the initiation of the patentee's right, by the location of the ground in accordance with law. Taylor v. Brown, 5 Cranch, 234: Stark v. Starr, 6 Wall. 403; Henshaw v. Bissell, 18 Wall. 266: Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683; 7 U. S. App. 463; 54 Fed. Rep. 284; 9 U. S. App. 613; 61 Fed. Rep. 557; 15 U. S. App. 456.

234. A patent relates back to the date of a valid mining location on which it is based. Heydenfeldt v. Daney G. & S. M. Co., 93 U. S. 634; 13 Mor. Min. Rep. 204.

251. It is a general rule of law that a certificate of entry, like a patent, is conclusive of legal title; but this rule will not be followed where entry was made by defendant in an adverse suit after the dismissal of such suit,

where the suit was thereafter reinstated, and the cause will be tried as though it had never been dismissed. McEvoy v. Hyman, 25 Fed. Rep. 539; 15 Mor. Min. Rep. 300.

252. Judicial notice may be taken of the general course of business in the Federal Land Office, in that a purchase commonly precedes the issue of a patent a considerable time. Fisher v. Hallock (Mich. S. C.), 10 C. L. O. 159.

18. Statute of Limitations. (See STATUTES OF LIMITATIONS, p. 333.) 253. The Statute of Limitations cannot run against the United States. Hence it cannot run against a claimant to public lands until the issuance of patent. Redfield v. Parks,

132 U. S. 239.

254. The Statute of Limitations does not run against the United States, and hence cannot run as to public lands until issuance of patent therefor. Gibson v. Choteau, 13 Wall. 93; Richardson v. Williamson, 24 Cal 289; Reed v. Spicer, 27 Cal. 57; 4 Mor. Min. Rep. 330; Irvine v. Tarbat, 105 Cal. 237; Vansickle v. Haines, 7 Nev. 249; 15 Mor. Min. Rep. 201. (Overruled in Jones v. Adams, 19 Nev. 78.) 255. Until a patent issues the legal title to land entered is in the United States. Therefore, a town lot owner claiming adversely to a mining claimant cannot set up the Statute of Limitations as having begun to run before the issuance of patent on the mining claim. King v. Thomas, 12 Pae. Rep. 865; Mayer v. Carrothers, 36 Pac. Rep. 182.

256. The Statute of Limitations does not commence to run against parties claiming under a patent confirming a Mexican grant until the date of the issuance of patent, if the adverse claimant does not show the existence of a perfect grant prior to the issuance of patent. Tuffree v. Polhemus, 108 Cal. 670. 257. The Statute of Limitations may not be evaded by private persons by bringing suit

19. Town Site.

(See TOWN SITE, p. 451. See also secs. 23862392, Rev. Stat., and sec. 16 of the Act of March 3, 1891; 26 Stat. 1095.)

258. "Thus read, they must be held, we think, merely to prohibit the passage of title under the provisions of the Town Site Laws, to mines of gold, silver, cinnabar or copper, which are known to exist, on the issue of the town site patent, and to mining claims and mining possessions, in respect to which such proceedings have been taken under the law or the custom of miners, as to render them valid, creating a property right in the holder, and not to prohibit the acquisition for all time of mines which then lay buried unknown in the depths of the earth. The exceptions of mineral lands from pre-emp tion and settlement and from grants to States for universities and schools, for the construction of public buildings and in aid of railroads and other works of internal improvement, are not held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure for its extraction, and known to be so at the date of the grant. There are vast tracts of country in the mining States which contain precious metals in small quantities, but not to a sufficient extent to justify the expense of their exploitation. It is not to such this statute is applicable." Davis' Adm'r v. lands that the term 'mineral' in the sense of Weibbold, 130 U. S. 597. (Citing and approving Alford v. Barnum, 45 Cal. 482; 10 Mor. Min. Rep. 422; Merrill v. Dixon, 15 Nev. 401; Cowell v. Lammers, 10 Sawy. 246; 21 Fed. Rep. 200; 3 West Coast Rep. 504; Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348; United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 486; Dughi v. Harkins, 2 L. D. 721; Samuel W. Spong, 5 L. D. 193; Cleghorn v. Bird, 4 L. D. 478; Commissioners of Kings County v. Alexander, 5 L. D. 126; Magalia G. M. Co. v. Ferguson, 6 L. D. 218; Nicholas Abercrombie, 6 L. D. 393; John Downs, 7 L. D. 71; Cutting v. Reininghaus, 7 L. D. 265; Creswell M. Co. v. Johnson, 6 L. D. 440; Thomas J. Laney, 9 L. D. 83.)

259. A lode known to exist at date of the issuance of a town site patent covering the

|

260. A claimant under a town site patent which contained the usual exception of mining claims acquired no interest in a valid mining claim or in the surface thereof. Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858.

261. A known mining claim is excepted from a town site patent. Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858; King v. Thomas, 12 Pac. Rep. 865.

262. Where a mining claim is located upon land afterwards entered as a town site, the

prior issuance of the town site patent does not affect the mining location, since the mining patent, when issued, takes effect from the date of the location of the claim by relation. Chambers v. Jones, 17 Mont. 156.

263. A town site entry and patent are "inoperative as to all lands known at the time to be valuable for their mineral, or discovered to be such before their occupation or improvement for residence or business under the town site title." Deffeback v. Hawke, 115 U. S. 392. (Followed in W. A. Simmons, 7 L. D. 283.)

264. Land covered by a town site patent may not be entered under the mineral land laws because discovered, after the town site entry, to be valuable for mineral. Thomas J. Laney, 9 L. D. 83.

be excepted from the town site patent. Richards v. Dower, 81 Cal. 44; 22 Pac. Rep. 304. See S. C., 151 U. S. 658.

269. A lode to be excepted from a town site patent need not have been located at the known. Dower v. Richards, 73 Cal. 477; 15 date of the town site entry. It is excepted if Pac. Rep. 105.

270. After patent has issued for a town site a miner may not locate a claim inside the patented limits and then attack the vathat the land located was known to be minlidity of the town site patent on the ground eral at the date of the town site entry. The patent must be attacked directly, if at all. Carter v. Thompson, 65 Fed. Rep. 329.

271. An applicant for a patent to a lode claim in a patented town site may, upon making a proper showing, be allowed a hearing to prove the known existence of the lode at the date of the town site entry, with a view to the recommendation by the Land Department of suit to vacate the town site patent as to the conflict. Thomas J. Laney, 9 L. D. 83: Plymouth Lode, 12 L. D. 513; Protector Lode, 12 L. D. 662; Pacific Slope Lode, 12 L. D. 686; Cameron Lode, 13 L. D. 369.

272. As sections 2386 and 2392, United States Revised Statutes, except known mines and valid mining claims from the operation of town site patents, if it is shown to the Land Department that a mine or valid min

boundaries of a patented town site at the date of the town site entry, patent will be issued therefor to the mineral claimant. Com'r to Denver Office, Nov. 16, 1895, In re Antediluvian Lode.

273. Where the applicant for patent for a lode claim situate within a patented town site shows such lode to have been known at the date of the town site entry, he may procure a reconveyance of the conflict by the town site to the United States and thus reinvest the Land Department with jurisdiction to patent the claim. Pederson Lode v. Black Hawk Town Site, 14 L. D. 186.

274. Patents may be issued for a town site and for a mining claim covering the same

275. In an ejectment suit where plaintiff shows title by patent for a mining claim, and defendant admits possession for town site purposes, plaintiff is entitled to judgment without showing that the surface is necessary to the working of his mine. Abbott v. Primeaux, 16 Nev. 361.

276. It is no objection to the issuance of patent for a lode claim that an application has been made for a town site patent. South Comstock G. & S. M. Co., 2 C. L. O. 146.

20. Trust.

(See TRUSTEE, p. 457.)

277. Where one party wrongfully obtains the legal title to land by a United States patent, which in equity and good conscience belongs to another, whether he acts in good faith or otherwise, he will be charged in

equity as a constructive trustee of the equi

table owner. Lindsey v. Hawes, 2 Black, 554; Stark v. Starr, 6 Wall. 402; Silver v. Ladd, 7 Wall. 219; Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 530; St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Rector v. Gibbon, 111 U. S. 276; Bohall v. Dilla, 114 U. S. 47; Richmond M. Co. v. Rose, 114 U. S. 576. (See S. C., 17 Nev. 25; 25 Pac. Rep. 1105; 2 Colo. Law Rep. 7.) Sparks

v. Pierce, 115 U. S. 408; Lee v. Johnson, 116 U. S. 48; Cornelius v. Kessel, 128 U. S. 456; Sanford v. Sanford, 139 U. S. 642. (See 13 Pac. Rep. 602.) Hardy v. Harbin, 4 Sawy. 549; Lakin v. Sierra Buttes G. M. Co., 11 Sawy. 231; 25 Fed. Rep. 337; Boggs v. Merced M. Co., 14 Cal. 279; 10 Mor. Min. Rep. 334; S. C., 3 Wall. 304; Salmon v. Symonds, 30 Cal. 301; Wilson v. Castro, 31 Cal. 420; Bludworth v. Lake, 33 Cal. 256; Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240; Meyendorf v. Frohner, 3 Mont. 282; 5 Mor. Min. Rep. 559; South End M. Co. v. Tinney (strong dissenting opinion), 35 Pac. Rep. 89.

278. "To charge the holder of the legal title to land under a patent of the United States, as trustee of another, and to compel him to transfer the title, the claimant must present such a case as will show that he himself was entitled to the patent from the gov

roneous rulings of the officers of the Land Department upon the law applicable to the facts found, it was refused him. It is not sufficient to show that there may have been error in adjudging the title to the patentee. It must appear that by the law properly administered the title should have been awarded to the claimant." Bohall v. Dilla, 114 U. S. 47.

279. "Mere occupancy of the public lands and improvements thereon give no vested right therein as against the United States, and consequently not against any purchaser from them. To entitle a party to relief against a patent of the government, he must show a better right to the land than the patentee, such as in law should have been respected by the officers of the Land Department, and being respected, would have given him the patent." (Citing Bohall v. Dilla, 114

U. S. 47.) Sparks v. Pierce, 115 U. S. 408;

Stark v. Starr, 6 Wall. 402; Silver v. Ladd, 7 Wall. 219; Moore v. Robbins, 96 U. S. 530; St.

Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Boggs v. Merced M. Co., 14 Cal.

279; 10 Mor. Min. Rep. 334; S. C., 3 Wall.

304.

280. One suing a patentee to have him declared a trustee of the legal title for him must show that he is entitled to the patent, not merely that patent erroneously issued, for that could be material only in a direct proceeding to vacate the patent. Meyendorf v. Frohner, 3 Mont. 282; 5 Mor. Min. Rep. 559.

281. If the officers of the Land Department mistake the law applicable to the facts, or misconstrue the statute and issue a patent to one not entitled to it, the party wronged can resort to a court of equity to correct the mistake and compel the transfer of the legal Lee v. Johntitle to him as the true owner. son, 116 U. S. 48; Puget Mill Co. v. Brown, 15 U. S. App. 274.

282. The patentee of a mining claim may be declared trustee for one who failed to adverse, if such failure was caused by fraud on the part of the patentee. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240.

283. Where a patent has issued to one other than the one to whom it should have issued, the proper remedy is to have the patentee declared a trustee for the other person, not to have the patent vacated. Stark v. Starr, 6 Wall. 402.