In an action to recover possession in which plaintiff relied on a patent of the ground as mining ground, the patent could not be attacked on the ground that it had been obtained by fraud or that the ground was not mineral ground. This was a question of fact cognizable by the Land Department. Land embraced within a town site on the public domain, when occupied, is not exempt from location and sale for mining purposes. Whether there are prior rights of occupancy which would be interfered with by the working of such mines is a matter properly cognizable by the Land Department.

Cullacott v. Cash G. & S. M. Co., 8, 179 (1884). It is only after the entire description in the patent has been considered and found so inaccurate as to render the identity of the grant wholly uncertain that the grant is to be held void.

Seymour v. Fisher, 16, 188 (1891). If by reason of the fraudulent conduct of the patentee a would-be contestant is kept in ignorance of the pending of proceedings for a patent, and is thus prevented from availing himself of the statutory remedy, a court of equity will interfere and control the title in his favor by treating the patentee as a trustee for the prior locator whom he has defrauded. The purpose of this is not to attack or annul the patent; the conclusiveness of that instrument to convey the legal title is accepted. The object of the equitable interference is to give the benefit of the patent to the proper party, the party who in equity is entitled to the premises. F. and M. owned the "A" claim; B. owned the "Little Tiger," which conflicted therewith. F. and S. owned an adjoining claim, "G." S. entered into a contract with B., by which he was to patent the "Little Tiger" in his own name and then convey half to B. S. filed an amended location certificate, changing the name to "Tiger," and extending the boundaries to take in a large additional part of claim "A," and then having obtained a patent conveyed half to B. F. and M., in a suit against S., sought unsuccessfully to have him declared a trustee for them.

1st. The law allows a change of boundaries when amended certificates are filed, and an injury to superior rights thereby is effectually waived by failure to adverse.

2d. The fact that S. was co-owner with F. of claim "G" did not establish a fiduciary relation as to claim "A."

3d. The change of the name to "Tiger" was not of itself excuse for plaintiff's ignorance, the claim being generally known and spoken of as the Tiger," and there being no other defect in the description of the property and no inadequacy in the posted and published notices.

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As to the half conveyed to B., there was an express trust in B.'s favor arising from the agreement with S.

Justice M. Co. v. Lee, 21, 260 (1895), reversing s. c. 2 Ap. 112. "While it is true that the mineral lands of the government are open to location and purchase only by a citizen of the United States, or one who has declared his intention to become such, and the fact of alienage, if raised at the proper time by any one adversely interested, will defeat the acquirement of title thereto, yet the qualifications of an applicant for a patent, as well as the fact of discovery and the compliance on his part with other requirements made essential by the act

of Congress to entitle him to purchase the mineral land of the government, being cognizable by the officers of the Land Department, when in the exercise of their jurisdiction they approve the application and allow an entry, the fact of citizenship, as well as all other questions of fact, is presumed to have been established, and is not open to review by the courts at the instance of third parties." Goddard, J.

Girard v. Carson, 22, 345 (1896). A location to be valid must be made upon unappropriated lands of the United States. Where application is made for a patent to a claim which includes within its limits the original discovery shaft of a prior location, the owner of the latter, if he fails to file an adverse claim and to prosecute the same, loses not only the territory in conflict, but all right based upon such location. He is in the same position as if he had filed and prosecuted adverse proceedings which were determined adversely to him.

Meyendorf v. Frohner, 3, 282 (1879). Where fraud has Montana. been practised in procuring a patent from the United States, only the United States can attack such patent. A party must show himself entitled to a patent upon his equitable title before he can have another, who has secured a patented title by alleged fraudulent means, adjudged a trustee of such title for his use.

Talbott v. King, 6, 76 (1886). (For statement of facts, see under Chap. XVI., Div. I.) The validity of the location of the mining claim cannot be questioned in this proceeding. The patent is conclusive of that. The act of the Department in issuing a patent is an adjudication, and, like a judgment, is final as to all matters necessarily included in and determined by it. These are: (1) that the lands bounded and described therein are mineral lands; (2) that a discovery and location within said boundaries have been made according to law; (3) that the necessary amount of work has been performed thereon, and that all preliminary and precedent acts necessary in order to authorize and justify the issuance of the patent have been performed as the law

requires.

The patent when issued relates to the time of location, from which time it takes effect. The location itself has the effect of a grant. "The patent is simply the evidence of this precedent grant, and must necessarily relate back to it." It was offered to prove that plaintiffs were estopped by joining in the application for the town site patent and accepting title thereunder. This was properly rejected. This, if an estoppel at all, was an estoppel to the right to a patent, and should have been objected as an adverse claim to the application of the plaintiffs therefor. "Objections that ought to have been made to the issuance of a patent cannot be made after the same is issued, except in certain well-defined cases; as that the land had been previously sold, or that the Land Department had exceeded its jurisdiction."

Deno v. Griffin, 20, 249 (1889). One whose action upon an Nevada. adverse claim has been dismissed, cannot in another action attack the validity of the patent on the ground that the receiver accepted the purchase price and gave his receipt therefor while the action on the adverse claim was pending.

South End M. Co. v. Tinney, 35 Pac. 89 (1894). Plaintiffs' grantors applied for a patent for the C. Lode Mining Claim in 1876, alleging

location in 1872. In 1878 plaintiffs abandoned the application and the claim, ceased to occupy and possess it, and from that time until 1888 failed to do the annual work. On Jan. 5, 1887, defendants' grantors entered upon the ground and located the P. claim, covering a portion of the C. claim, and complied with the law, and remained and were in possession at the time of this suit. In 1888 plaintiffs resumed the prosecution of their application for a patent, and "without the knowledge of defendants or their grantors, and without posting or publishing any other or further notice of application for patent, procured the register and receiver to sell said C. Mining Claim to plaintiffs and to issue a certificate of purchase therefor." This action of the Land Department was induced and procured by the filing of false and fraudulent affidavits and testimony, showing that the annual labor had been done upon the claim by plaintiffs from 1872 to the date of purchase, and plaintiffs knew that these affidavits and proofs were false. This state of facts made out an equitable defence to an action of ejectment, such a defence being good in this State.

By Bigelow, J., it was held that the doctrine of the conclusiveness of the patent was inapplicable. The action of the plaintiffs was a fraud upon the defendants, and raised a trust which was enforceable in equity.

Murphy, C. J., and Belknap, J., dissented from this view.

Blake v. Butte S. M. Co., 2, 54 (1877). A patent to a min

Utah. ing claim, granted upon an application made under the act of 1866, grants the government title to the surface ground mentioned therein, subject to the right of other locators to follow veins or lodes held under locations made prior to May 10, 1872. The owner of such a vein, being in possession thereof, has a right to follow it within the patented surface ground of another. The act of 1872 does not impair his right, and he is not bound to file an adverse claim to protect it.

Kahn v. Old Telegraph M. Co., 2, 174 (1878). A patent title relates back to the first initial valid step which is the foundation of the right, and in pursuance of which the patent was issued. As a location notice in the acquisition of mineral lands is the first step in that direction, the same is proper evidence in connection with the patent to show the claim to which the patent refers. "In an action of ejectment, in certain cases a patent of the United States may be shown to be invalid; instances are, if the patent is void on its face, or issued without authority, or its issue prohibited, or when the government by reason of a prior grant had no title. The distinction between such cases and those in which the patent is held to be conclusive evidence of title in an action at law, is this: Where the government had the title and it passed by the grant, it can only be recalled or made subject to equitable interest of other parties by an action in equity brought for that purpose. In such cases, although fraud may have been practised, or other parties hold superior equities, the patent is not void, but only voidable in equity. If, however, the government does not have the title, or the issuance is unauthorized or prohibited by law, no title passes by the grant, and this fact may be shown at law or in any court in which the void instrument is produced as evidence of title. . . . It is argued, however, that the patent was issued without authority and

was therefore void, if the N. Y. D. claim had been abandoned, or the other facts exist which the appellant offered to show. The want of authority which will make an instrument of this kind void is a total want of authority to issue a patent for the subject of the grant, not a latent impropriety in exercising the authority, by reason of unknown imposition moving to its exercise, when the proofs authorizing the acts are formal and sufficient."

A patent to a lode mining claim passes whatever title the government had to the surface, and any vein or veins beneath not otherwise granted. The law requires that the land located must belong to the United States, and that a vein shall be discovered within its limits before location. A patent presumes a compliance with the mining laws.

LAND OFFICE DECISIONS.

An entry made is in all respects, so far as third parties are concerned, equivalent to a patent. By it the applicant acquires an equitable title which becomes complete upon proofs made and payment of purchase money, and when patent issues ripens into a fee simple which relates to the date of entry. American Hill Quartz Mine, Copp, 237 (1879).

Certain lands in Arkansas were surveyed in 1845 and plats showing them to be agricultural approved. They were entered as agricultural land on April 19, 1878, but it was shortly brought to the notice of the Department that the land was mineral, and, an investigation having been ordered, its mineral character was established. The agricultural entry was thereupon cancelled. "If at the date of his entry they were valuable for minerals," they were "reserved from sale," and the action of the local officers in allowing the entry was of no effect, because in violation of law. Copp, 264 (1879).

A claim is not subject to relocation in the interim between entry and issuance of patent for failure to perform annual work. Upon entry, that is, proof made and payment of purchase-money, the equitable title of the purchaser becomes complete, and the patent when issued relates to the date of entry to the exclusion of intervening rights. Rev. Stats., 2324, has reference only to title by possession. F. P. Harrison, 2 L. D. 767 (1884).

A mere application to make entry not properly followed up confers no exclusive rights which others are bound to wait upon indefinitely. Snow Flake Lode, 4 L. D. 30 (1885).

When land was returned as agricultural, and patent duly issued therefor under the Central Pacific Railroad grant, an application for patent for the same as a mining claim will not be allowed to be filed. Samuel W. Spong, 5 L. D. 193 (1886).

The validity of a placer patent, and its extent, as in conflict with an alleged known lode or vein, are questions that can only be determined by judicial authority. "If it be shown that the applicant has knowingly made misrepresentations as to discovery of mineral, or as to the form in which the mineral appears, the government may institute proceedings to set aside the patent. But so long as the placer

patent remains outstanding and unlimited, in my judgment, the government through its officers should not receive lode applications for any part thereof. Upon a sufficient showing being made, the patent may be set aside by proper proceedings in the courts." Pike's Peak Lode, 10 L. D. 200 (1890).

The issuance of a patent duly signed, sealed, countersigned and recorded, deprives the Department of further jurisdiction over the land or the title thereto. The date of the patent must be taken as the date of the record, and parol testimony is not admissible to contradict the record. Kline v. Stephan, 10 L. D. 343 (1890).

The issuance of a town site patent for land that contains a known lode claim conveys no title to said claim; but such patent, while outstanding, operates to remove the land described therein and the title thereto from the jurisdiction of the Department, and effectually precludes the issuance of a patent for said mining claim. Where no exception of any portion of the surface ground is made from the land described in a town site patent, departmental authority over such land and the title thereto terminates with the issuance of said patent, even though such instrument may in terms declare that no title shall be acquired thereby to any mine or valid mining claim, and it shall subsequently appear that it covers land containing a lode claim known to exist at the date of the town site entry and patent. Pacific Slope Lode, 12 L. D. 686 (1891).

A placer patent for land, including a known lode, not specifically described and excluded, operates to convey title to all of said land, and terminates the jurisdiction of the Department over the land covered thereby. Pike's Peak Lode, 14 L. D. 47. (1892).

IV. VACATION OF PATENT.

A patent obtained by fraud, or whose issuance arises from fraud, gross mistake, or violation of the law by the officers of the Land Department, is voidable in equity at the suit of the government. The government only can attack its validity; individuals have no standing to do so. The procedure for the cancellation or vacation of such voidable patents, as well as of patents absolutely void, must be by bill in equity, which is not to be treated as a review or retrial of the case as it was before the Land Department. It is a proceeding for the cancellation of a conveyance, obtained by fraud or mistake, and in this respect the government as a land-owner is upon the same footing as an individual. The burden of proof is upon the government, and the presumption in favor of the patent can be overcome only by clear and convincing proof. When the government has brought a suit

1 See p. 432 as to the manner in which an individual can obtain action by the government.