A hearing should not be had before the local office on a protest against a mineral application during the pendency of adverse judicial proceedings. Swaim v. Craven, 12 L. D. 294 (1891).

A mineral entry made by an alien is not void, but voidable, and while of record, the land covered thereby is segregated from the public domain. A protestant who makes a mineral location on land thus segregated acquires no interest thereby, as against the government or the entryman, that will entitle him to be heard on appeal. Leary v. Manuel, 12 L. D. 345 (1891).

An adverse claim must be filed within the sixty days of publication, and in computing such period the first day of publication must be excluded. Where notice was published from October 19 to December 21, inclusive, an adverse claim filed on December 19 was too late. A misstatement in the published notice as to the termination of the period of publication will not excuse the adverse claimant from filing his claim within the statutory period. Bonesell v. McNider, 13 L. D. 286 (1891); Ledger Lode, 16 L. D. 101 (1893).

In computing the period within which an adverse claim must be filed, the first day of publication should be excluded. If the last day falls on Sunday or a legal holiday, the adverse claim may be filed on the next business day. It is not a valid reason for refusing to accept an adverse claim that proof of publication has not been received.

The statutory fee for filing and acting upon an adverse claim cannot be required of the adverse claimant in the event that his claim is rejected by the local office. An appeal will properly lie from the rejection of an adverse claim. Waterhouse v. Scott, 13 L. D. 718 (1891); Ground Hog Lode v. Parole, 8 L. D. 340 (1889).

The right to be heard on appeal from the Commissioner's decision may be properly accorded to a protestant against a mining claim who alleges an adverse interest and non-compliance with the law, and whose application for a hearing on said charge has been denied.

"In the protests before me I find specific charges of failure to make any discovery of rock in place bearing mineral, a specific denial of the expenditure of any money in development and improvement, and a charge that the testimony offered, and upon which the entry was allowed, was false and fraudulent, and a further charge that the land is not being entered for mining, but for other purposes; and for the purposes of this case, no hearing having been allowed, these charges stand uncontradicted. These allegations, if true, should cancel the entry." Weinstein v. Granite Mountain M. Co., 14 L. D. 68 (1892).

One who files an adverse claim out of time, and subsequently brings suit thereon, but not within the statutory period, does not occupy the status of an adverse claimant, but that of a mere protestant without interest.

An adverse claim filed out of time, and subsequent judicial proceedings based thereon, but not begun within the period prescribed, do not preclude the allowance of a mineral entry; nor does the pendency of such proceedings bar the issuance of patent on such entry.

It may be contended that because the local officers in fact received the adverse claim, and suit has actually been brought in court, this Department has no authority to question its jurisdiction; but if the

claim is not filed as required, it is not filed at all in legal contemplation. Nettie Lode v. Texas Lode, 14 L. D. 180 (1892).

On the termination of judicial proceedings the local office should make the entry conform to the decree of the court, and the entry should not be allowed in the absence of the judgment roll. The said judgment cannot be attacked collaterally in this Department, so long as it is outstanding and in force, if the court which rendered it had jurisdiction. Silver King Lode, 14 L. D. 308 (1892).

A judgment that the adverse claimant is not entitled to possession is binding on the Department. Wheeler v. Smith, 23 L. D. 395 (1896).

Until the issue of patent, title to the public lands is in the government, and while it is so, the Land Department must, under the law, be the judge as to when, under what circumstances, and how the government shall part with title. The judgment of a court of competent jurisdiction upon an adverse claim is conclusive upon the parties, but only as to the right of possession. The party in whose favor judgment is rendered is entitled to patent only upon showing that he has complied with the requirements of the law, and a hearing may be ordered to ascertain this.

Applications for lode and placer claims having been filed for the same ground, and adverse claims being filed by both parties, the court found that the lodes existed in the placer claim and extended clear through that part in conflict with the lode claim, and rendered judgment that the placer claimants were entitled to patent for all the surface ground, and the lode claimants to the lodes or veins throughout their entire length. The Land Department refused a patent to the placer claimants for all the surface ground, but ordered a hearing to determine whether known lodes existed in the placer ground. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641 (1892).

The failure of an adverse claimant, who is a purchaser, to furnish an abstract, will not defeat his right to be heard when he has done in good faith all that was in his power to comply with the rule. He had complied with the requirements of the statute, and the omission to comply with the rule was an irregularity and not a defect that vitiates the adverse claim. The Department has the same power that a court has to suspend its ruies to avoid an act of injustice. Hawkeye Placer v. Gray Eagle Placer, 15 L. D. 45 (1892).

On a sufficient showing made by protest, the Department has authority after final entry to order a hearing to determine whether there has been due compliance with the mining law, although the adverse loca tion, set up by the protestant, was not made until after the entry in question had been allowed. Tam v. Storey, 16 L. D. 282 (1893).

While protestants are barred from setting up any claim to the tract in question because they failed to file their adverse claim, still they have a right to show that the applicant has not complied with the law, and by so doing secure the cancellation of the entry, and thus make it necessary for the applicant to begin over again and give them an opportunity to file an adverse claim during the period of publication.

A protestant who alleges an adverse interest and non-compliance with the law by the applicant or his predecessors in title, is entitled, if

his application for a hearing has been denied, to be heard on appeal. Nevada Lode, 16 L. D. 532 (1893); Gowdy v. Kismet G. M. Co., 22 L. D. 624 (1896); Parsons v. Ellis, 23 L. D. 69 (1896).

A mere protestant without interest is not entitled to appeal. During the period covered by an owner holding a claim for cancellation, all intervening claims to the land are necessarily subject to such rights as might be finally accorded to the applicant, either on review or appeal. A relocation by a third party during that period would not give such an interest as to raise a right to be heard. Smuggler M. Co. v. Trueworthy Lode Claim, 19 L. D. 356 (1894).

If, pending application, the monuments marking the corners of the claim are destroyed by accident or design, the applicant will not be required to re-establish them. Nor is this ground for protest. Bryne v. Slauson, 20 L. D. 43 (1895).

The filing of a declaration in ejectment in New Mexico is a commencement of proceedings under Rev. Stats. 2326, even though summons on said declaration does not issue within the statutory period. De Garcia v. Eaton, 22 L. D. 16 (1896).

The obligation of an adverse claimant to begin judicial proceedings within the statutory period is not suspended by a motion to dismiss the adverse claim. Scott v. Maloney, 22 L. D. 274 (1896).

Where co-owners of an adverse claim bring separate suits in their individual names and in different courts, a dismissal of the junior proceeding will not confer jurisdiction upon the Department to proceed with the application and allow the entry. Black Queen v. Excelsior No. 1, 22 L. D. 343 (1896).

A suit pending on an adverse claim ousts the Department of all jurisdiction, even though it rests on an application which has been denied. Clipper M. Co., 22 L. D. 527 (1896).

Where a mineral applicant institutes adverse judicial proceedings against a subsequent applicant whose claim involves in part the same land, they will act as a stay of proceedings in the Department. Little Giant Lode, 22 L. D. 629 (1896).

Where a court has assumed jurisdiction of an adverse proceeding, whether or not the proceeding has been commenced is for the court, and cannot be determined by the Department. Cation v. Lewiston, 23 L. D. 20 (1896).

Rev. Stats. 2325 only applies to suit between adverse mineral claimants, and not to contests as to character of land between agricultural and mineral claimants. Powell v. Ferguson, 23 L. D. 173 (1896).

The judgment of a court that neither party has shown title to the land precludes favorable action by the Department on the claim of the applicant. Newman v. Barnes, 23 L. D. 257 (1896).

Local officers are not required to transact business out of office hours, but if they do accept an adverse claim on the sixtieth day of publication after office hours, it will be treated as filed in time. Girouz v. Scheurman, 23 L. D. 546 (1896).

III. EFFECT OF THE PATENT,

The patent is the last step in the purchase of the claim from the United States. It is the conveyance by the government to its grantee, the instrument which is evidence of the grant, the perfected right in the patentee to the claim conveyed. It is, in addition to this, the judgment of a special tribunal, the Land Department, and as such is unassailable collaterally, when that tribunal has jurisdiction of the case, and as to matters properly determinable by it. The patent is then conclusive when brought to notice in a collateral proceeding. The act of the Department in issuing a patent is an adjudication of all matters necessarily included and determined by it, which are, that the lands described therein are mineral lands, that a discovery and location thereof have been made according to law, and that the necessary amount of work and all preliminary acts necessary to authorize the issuance of the patent have been performed, and that they are lode or placer claims, as the case may be. But it is not conclusive of the course of a lode.

The record of the Department cannot be used in an action at law to affect the validity of the patent. It is unassailable for errors of judgment.

When, upon an adverse claim filed, an action is brought, the jurisdiction of the Land Department is suspended until the controversy is decided by the court, and the court only can decide when the controversy is at an end. That question is out of the jurisdiction of the Department, as is also the title to the land. But it is the province of the Department to pass upon questions of fraud in the application, and consequently a patent may not be collaterally attacked for fraud in obtaining it. So questions of prior rights of occupancy which would be interfered with by the working of the mines are cognizable by the Land Department.

Not only the courts in a collateral proceeding, but the Land Department itself, have no power, when a patent has once issued, to vacate, recall, or limit it. That can only be accomplished in one way, as will be explained below.1

If, on the other hand, the Land Department had no jurisdiction of the case, its action in issuing a patent is unauthorized, and the patent is void, and may be attacked in a collateral proceeding. A 1 Div. IV., this chapter.

court of law may then consider matters disclosing a want of jurisdiction, it may read the patent in the light of existing laws and such facts as it should take judicial notice of, and may declare the Land Office to be without jurisdiction and the patent of no effect. Such jurisdiction is wanting where the government has no title to the land in question, as where it has passed out of the United States by previous grants, or where the issuance of the patent is unauthorized or prohibited by law, or, what is the same thing, the land has been reserved from sale. In such cases no title can pass. Like that of an individual, the government conveyance cannot pass title to ground that it does not own, or that its agent is without authority to convey. That want of authority must be a total want of authority, not a mere impropriety in its exercise, and every presumption is in favor of its existence.

When the Department's authority depends on the existence of particular facts, as, for instance, citizenship, or upon the performance of certain antecedent acts, it is the duty of the Department to ascertain the existence of these facts, or whether these acts have been performed, and its determination is conclusive against collateral attack.

The error of the Land Department, in cases within its jurisdiction, can, however, be corrected, but only at the instance of the government, which may have a patent vacated in equity for fraud or mistake in its issuance. The power of the Department itself over the land, ends when the patent is issued and placed on its records.

Although the patent is conclusive, yet, if the patentee was affected by a fiduciary relation, the courts will control the title for the benefit of the cestui que trust, and, if necessary, decree a conveyance. This will be done not only in the case of an express trust, where the trustee has taken title in his own name, but in all cases where a confidential relation exists. A co-tenant who surreptitiously obtains a patent in his own name, in disregard of the rights of other co-tenants, will be held to be a trustee.

Where, however, there existed a right and duty to file an adverse claim, the adverse party cannot, on failure to do so, set up a trust, unless he was induced not to contest the patentee's application by an agreement or by fraudulent conduct, such as would affect the patentee with a constructive trust.

In like manner the doctrine of estoppel cannot be set up