Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574. 87. The legal effect of a patent and its unassailability collaterally, considered and discussed. Johnson v. Townsley, 13 Wall. 72; French v. Fyan, 93 U. S. 169; Vance v. Burbank, 101 U. S. 514; Quinby v. Conlan, 104 U. S. 420; Steel v. St. Louis Sm. Co., 106 U. S. 447; Boggs v. Merced M. Co., 14 Cal. 380; 10 Mor. Min. Rep. 334. 88. The jurisdiction of the Land Department in issuing patents and the conclusiveness of such patents discussed at length. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673. 89. The boundaries of a claim as patented are conclusive as to the lines of location as against the patentee. Waterloo M. Co. v. Doe, 56 Fed. Rep. 685. 90. The issuance of a lode patent is conclusive proof that the claim is located on the apex of a vein. Iron Silver M. Co. v. Campbell, 17 Colo. 267; 29 Pac. Rep. 513. See S. C., 135 U. S. 286. 91. "It may be admitted, . . . that if, upon any state of facts, the patent might have been lawfully issued, the court will presume, as against collateral attack, that the facts existed; but that presumption has no place in a suit by the United States directly assailing the patent and seeking its cancellation for fraud," etc. Moffat v. United States, 112 U. S. 24; United States v. Minor, 114 U. S. 233. 92. In a controversy as to ownership of the vein on the dip, issuance of patent does not prove the correctness of the Land Department record as to the date of location, but this must be proven as any other matter would be. Last Chance M. Co. v. Tyler M. Co., 9 U. S. App. 613; 61 Fed. Rep. 557; Champion M. Co. v. Cons. Wyoming G. M. Co., 75 Cal. 78; 16 Pac. Rep. 513; Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 645. 93. A patent to a railroad company is not conclusive evidence that the land is nonmineral in character; a party claiming under a subsequent mining patent may show that the land is mineral, and, upon such showing being made, his title will be quieted. Chicago Quartz M. Co. v. Oliver, 75 Cal. 194. 94. The certificate of the United States Surveyor General as to expenditure upon a mining claim may not be attacked after the issuance of patent if not given because of fraudulent representations by the claimant. United States v. Iron Silver M. Co., 128 U. S. 673. 95. Under section 2325, United States Revised Statutes, the certificate of the United States Surveyor General is evidence of the sufficiency of the work performed and improvements made upon a mining claim in his State, and in an action to annul a patent it is error to strike out of the answer that the Surveyor General for Montana took the evidence required by law, and decided that the work and improvements equaled $500. United States v. King, 9 Mont. 75. 96. An equitable title must yield to that which the patent conveys. United States v. Southern Colorado Co., 18 Fed. Rep. 273. 97. In an action of ejectment the legal title must prevail. The patent of the United States passes that title. Steel v. St. Louis Smi. Co., 106 U. S. 447. 98. A patent conveys the legal title, notwithstanding it is obtained by fraud. United States v. Minor, 114 U. S. 233; Meader v. Nor 101. The officers of the Land Department have no authority to insert in a patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribes. The patent of a placer mining claim carries with it the title to the surface ground included within the lines of the mining location, as well as the land beneath the surface. Deffe back v. Hawke, 115 U. S. 392. 102. The issue of patent for lands embracing mines, carries with it all mines in the lands patented to which no right had attached at time of issuance of patent. Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348. 103. A lode patent carries the lode located and all other lodes whose apexes are within the surface lines of the location. Iron Silver M. Co. v. Cheesman, 2 McCrary, 191; 9 Mor. 104. An equitable interest in a mine is strengthened by patent. Harriet M. Co. v. Phoenix M. Co., 9 C. L. O. 165. 105. An intruder without title cannot question a United States patent. Erhardt v. Hogaboom, 115 U. S. 67. 106. The patent, like the deed of the individual, is inoperative if the government never owned the property, or had previously conveyed it, or had dedicated it to uses which precluded its sale. Steel v. St. Louis Sm. Co., 106 U. S. 447. 107. If land was not subject to entry at date of entry and patent, the patent is void, and innocent purchasers are not protected. Walden v. Knevals, 114 U. S. 373. 10. Exclusions. 108. The exclusion from entry and patent of a mining claim, of conflict with another claim, does not preclude the patentee from holding the excluded ground under his sessory title and raises no presumption against such title. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. pos 109. An applicant for a mineral patent may make entry of his claim exclusive of land covered by an adverse claim and take patent for the land not in conflict, without waiving his possessory right to the excluded portion. Black Queen Lode v. Excelsior No. 1 Lode, 22 L. D. 343. 112. Assessment work done on the excluded portion of a claim for the benefit of the claimed portion may be counted, even if the excluded part is covered by an agricultural patent. Richards v. Wolfing, 98 Cal. 195; 32 Pac. Rep. 971. 11. Grant. (See GRANT, p. 364.) 113. Coal lands are mineral lands, and as such are not subject to indemnity school of non-mineral lands. A patent issued to a selection by a State claiming under a grant State for lands known to be valuable for coal 114. Title to known mines does not pass to railroad companies by virtue of their grants. California & Oregon R. R. Co., 4 C. L. O. 2. 115. The discovery of the mineral character of land at any time prior to the issuance of patent therefor, under a grant excepting mineral land, will exempt the land from the operation of the grant. Central Pacific R. R. Co. v. Valentine, 11 L. D. 238. 116. If land within the limits of the grant to the Northern Pacific Railroad Company (from which all minerals other than coal and iron were excepted) is discovered to be mineral in character at any time before the issuance of patent therefor to the company, it is excepted from the grant. Barden v. N. P. R. R. Co., 154 U. S. 288. (Citing and approv 110. Patent will not issue for a lode mining C. P. R. R. Co. v. Valentine, 11 L. D. 238 strong dissenting opinion.) ing claim where the land on which is situate the discovery and improvements is excluded from the entry, unless a discovery and the required expenditure are shown to have been made on entered ground. Antediluvian Lode and Mill Site, 8 L. D. 602; Thomas J. Laney, 9 L. D. 83. - 117. A patent to a railroad company will be set aside if the ground was known at the time to be mineral in character. McLaugh lin v. United States, 107 U. S. 526; Western Pa cific R. R. Co. v. United States, 108 U. S. 510. 118. Where by the terms of a patent mineral lands are excluded from the grant, it is competent for the party claiming adversely to the patentee to show that the land in dispute is mineral in character, and therefore excepted from the operation of the patent. McLaughlin v. Powell, 50 Cal. 64; 10 Mor. Min.. Rep. 424. 111. Where the discovery and improvements are excluded from the entry of a mining claim, the entry will be canceled unless it is shown that mineral has been discovered and the requisite expenditure made upon claimed ground. A reconveyance by another lode claimant of the patented excluded ground will not be accepted, in such a case, 119. A person claiming under a mineral as reinvesting title to the same in the govern- location, to be entitled to the possession as ment for the purpose of patenting it with the against one claiming under a patent to a claim last entered. Winter Lode, 22 L. D. 362. | railroad company, must show that at date of such patent the land was known to be more valuable for mining than for agricultural purposes, and in determining the relative value for such purposes, subsequent changes cannot be considered. Hunt v. Steese, 75 Cal. 620; 17 Pac. Rep. 920. 120. As long as a patent to a railroad company remains of record it is conclusive of the non-mineral character of the land at date of issuance of the patent, and a valid mining location cannot be made on the patented land. Cowell v. Lammers, 10 Sawy. 246; 21 Fed. Rep. 200; 3 West Coast Rep. 504. 121. Lands not known to be mineral in character at the date of issuance of patent therefor to a railroad company pass by the patent, even though the grant to the company excluded mineral land. Samuel W. Spong, 5 L. D. 193. 122. The mineral reservation clause is to be inserted in all patents for land issued to railroad companies. California & Oregon R. R. Co., 4 C. L. O. 2. 123. A patent from the United States for land in California, issued upon confirmation of claims held under grants of the Mexican government, invests the patentee with the · ownership of the precious metals which the land may contain. Moore v. Smaw, and Fremont v. Flower, 17 Cal. 197; 12 Mor. Min. Rep. 418; Ah He v. Crippen, 19 Cal. 491; 10 Mor. Min. Rep. 367. 124. The locator of a mining claim, upon land under a confirmed Mexican grant, cannot attack a patent issued upon such Mexican grant on the ground of fraud. Manning v. San Jacinto Tin Co. (Cal. C. C.), 10 C. L. O. 181. 12. How Attacked. 125. A patent for lands issued by the United States is conclusive in an action at law as to the legal title, and cannot be collaterally impeached in such action, unless it is absolutely void on its face, or is issued without authority. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673. (Quoting Patterson v. Winn, 11 Wheat. 380, and citing Hoofnagle v. Anderson, 7 Wheat. 212; Boardman v. Reed, 6 Pet. 342; Bagnell v. Broderick, 13 Pet. 448; Johnson v. Towsley, 13 Wall. 72; Moore v. Robbins, 96 U. S. 535.) 126. The Land Department in issuing a patent must necessarily consider and pass upon the qualifications of the applicant, theacts 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 against the patent. Steel v. St. Louis Sm. Co., 106 U. S. 447. (Citing United States v. Throckmorton, 98 U. S. 61; Vance v. Burbank, 101 U. S. 514; United States v. Flint, 4 Sawy. 42.) 127. A patent from the United States for land is conclusive in a court of law as to all matters properly determinable by the Land Department. If patent issued without jurisdiction, it may be collaterally impeached.. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 645; Boggs v. Merced M. Co., 14 Cal. 380; 10 Mor. Min. Rep. 334; Meyendorf v. Frohner, 3 Mont. 282; 5 Mor. Min. Rep. 559. 128. A patent cannot be attacked collaterally, but only by a direct proceeding instituted by the government or parties acting in its name and by its authority. Lee v. John-son, 116 U. S. 48; Carter v. Thompson, 65 Fed. Rep. 329; Poire v. Wells, 6 Colo. 406; Green v.. Barker, 66 N. W. Rep. 1032. 129. A patent is not to be collaterally attacked, nor to be impeached by trespassers.. Cowell v. Lammers, 10 Sawy. 246; 21 Fed. Rep. 200; 3 West Coast Rep. 504. 130. A patent may not be attacked for fraud except in a direct proceeding which should be by scire facias, information, or a bill filed by, or in the name of, the United States. Boggs v. Merced M. Co., 14 Cal. 380; 10 Mor. Min. Rep. 334. 131. If the Land Department, in issuing a patent, acted without authority of law, or the lands patented were not within its jurisdiction, the patent is void, and may be shown so to be in an action at law. Polk's Lessee v. Wendal, 9 Cranch, 87; Patterson v. Winn, 11 Wheat. 380; Mayor, etc. v. United States, 10 Pet. 662; Wilcox v. Jackson, 13 Pet. 498; Stoddard v. Chambers, 2 How. 284; Easton v. Salisbury, 21 How. 426; Reichart v. Felps, 6 Wall. 160; Best v. Polk, 18 Wall. 112;. Leavenworth, etc. R. R. Co. v. United States, 92 U. S. 733: Newhall v. Sanger, 92 U. S. 761; Sherman v. Buick, 93 U. S. 209; St. Louis Sm Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Steel v. St. Louis Sm. Co., 106 U. S. 447; U. P. R. R. Co. v. Dunmeyer, 113 U. S. 629; Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591; Doolan v. Carr, 125 U. S. 618; Hastings, etc. R. R. Co. v. Whitney, 132 U. S. 357; St. Paul, etc. R. R. Co. v. N. P. R. R. Co., 139 U. S. 18; Richmond M. Co. v. Rose, 114 U. S. 576. See S. C., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; N. P. R. R. Co. v. Cannon, 7 U. S. App. 507; Patterson v. Tatrum, 3 Sawy. 173; Cooper v. Robinson, 6 McLean, 93. 131a. Patents for lands which have been reserved from sale are void. Morton v. Nebraska, 21 Wall. 660; 12 Mor. Min. Rep. 451; Polk v. Wendal, 9 Cranch, 99; Minter v. Crommelin, 18 How. 88. 132. If a patent is issued contrary to the regulations of a mining district in force, it is void, at least in so far as it is so in conflict, and may be attacked collaterally. Parley's Park S. M. Co. v. Kerr, 130 U. S. 256. 133. A patent may be attacked by an individual only by showing that it conflicts with a prior vested right, and even then the patent will not be vacated, but only declared inoperative as to conflict with such right. Boggs v. Merced M. Co., 14 Cal. 380; 10 Mor. Min. Rep. 334. 134. A petition addressed to the General Land Office, asking a hearing with view to the recommendation of suit to vacate a patent, should be forwarded by the Commissioner to the Secretary with a recommendation, and the hearing should be ordered only by the Secretary. Butte & Boston M. Co., 21 L. D. 125. 135. The preliminary hearing had with a view to the recommendation of suit to vacate a patent should be at the expense of the one asking the suit. Alexander Moore, 2 L. D. 761; Departmental decision May 9, 1892, In re Lorin L. Wilcox. Such hearing should be with notice to all parties. Cameron Lode, 13 L. D. 369. 136. Where it is alleged that lands known to be mineral in character have been patented to a railroad company under a grant of nonmineral lands, a hearing should be ordered with a view to the recommendation by the Land Department of suit to vacate the patent. The United States, on such a state of facts, would be an interested party. Bullock . Central Pacific R. R. Co., 11 L. D. 590. | 13. Land Department. (See LAND DEPARTMENT, p. 427.) 137. "The Commissioner of the General Land Office shall perform, under the direction of the Secretary of the Interior, all executive duties appertaining to the surveying and sale of the public lands of the United States, or in any wise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all agents [grants] of land under the authority of the government." (Sec. 453, U. S. Rev. Stat.) Knight v. U. S. Land Ass'n, 142 U. S. 161. 138. The issuance of a patent terminates the jurisdiction of the Land Department over the land patented. Moore v. Robbins, 96 U. S. 530; Steel v. St. Louis Sm. Co., 106 U. S. 447; Rockwell v. Indian Widows, 1 L. D. 90; Heir of John Love, 2 L. D. 386; Baker v. State of California, 4 L. D. 137; Wisconsin Central R. R. Co. v. Stinka, 4 L. D. 344; Pueblo of San Francisco, 5 L. D. 483; Garriques v. Atchison, Topeka & Santa Fe R. R. Co., 6 L. D. 543; The Middle Grounds, 7 L. D. 255; Schweitzer v. Ross, 8 L. D. 70; John P. S. Voght, 9 L. D. 114; Louisa Goldstein, 10 L. D. 155; Pike's Peak Lode, 10 L. D. 200; 14 L. D. 47; Plymouth Lode, 12 L. D. 513; Protector Lode, 12 L. D. 662; Pacific Slope Lode, 12 L. D. 686; South Star Lode, 17 L. D. 280. (Modified, 20 L. D. 204.) Spirlock v. N. P. R. R. Co., 22 L. D. 92. The rule laid down by the above decisions is somewhat modified in the South Star Lode, 20 L. D. 204 (wherein it is held that, if it be shown to the satisfaction of the Land Department that a lode was known to exist within a patented placer claim at date of the application for the placer patent, patent may be issued for the lode claim by reason of the fact that known lodes not expressly embraced in the application for placer patent were excluded therefrom. See. also, Com'r to Denver Office, Nov. 16, 1895, In re Antediluvian Lode, in conflict with the patented town site of Central City). 139. The issuance of patent terminates the jurisdiction of the Land Department over the land covered thereby, and the patent can be invalidated only by judicial proceedings. Thomas J. Laney, 9 L. D. 83. 140. The issuance of a patent for public land terminates the jurisdiction of the Land Department to inquire into the character thereof. Courtright v. Wisconsin Central R. | anon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. R. Co., 19 L. D. 410. 141. "The land officers, who are merely agents of the law, had no authority to insert in the patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed." Deffeback v. Hawke, 115 U. S. 392; Sparks v. Pierce, 115 U. S. 408. 142. "The officers of the Land Department, being merely agents of the government, have no authority to insert in a patent any other terms than those of conveyance, with recitals showing compliance with the conditions which the law prescribes. Could they insert clauses in patents at their own discretion they could limit or enlarge their effect without warrant of law. The patent of a mining claim carries with it such rights to the land which includes the claim as the law confers, and no others, and these rights can neither be enlarged nor diminished by any reservation of the officers of the Land Department, resting for their fitness only upon the judgment of those officers." Davis' Adm'r v. Weibbold, 139 U. S. 507. See 7 Mont. 107. (Citing Deffeback v. Hawke, 115 U. S. 392.) 143. A reservation of the surface of a mining claim in favor of town site property rights is void. Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858. 144. The practice of inserting in town site and mineral land patents mutual clauses of reservation is adhered to. Rico Town Site, 1 L. D. 556. (Prior to decision in Deffeback v. Hawke, 115 U. S. 392.) 145. Acting under the rule laid down in Deffeback v. Hawke, 115 U. S. 392, it is ordered that the reservation of town site rights in mineral patents be discontinued. Departmental Instructions, Nov. 27, 1886, 5 L. D. 256. 146. There is no authority for a reservation of town site rights in a mineral patent. Harry Livingston Lode, 7 L. D. 319; W. A. Simmons, 7 L. D. 283; Antediluvian Lode and Mill Site, 8 L. D. 602. 147. Whether a patent is broader or narrower than the law under which it issues, it conveys that which the law says shall be conveyed. Stark v. Starr, 6 Wall. 402; Deffeback v. Hawke, 115 U. S. 392; Sullivan v. Iron Silver M. Co., 143 U. S. 431; Clary v. Hazlett, 67 Cal. 286; 7 Pac. Rep. 701; Wolfley v. Leb 282; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434: Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858; King v. Thomas, 12 Pac. Rep. 865. 148. A patent for a mining claim will not contain a reservation in favor of a tunnel claim. Tioga Cons. M. Co., 8 C. L. O. 88. 149. Where mining locations cross each other, and there is reason to believe that a contest may arise in the future, the rights of neither party should be prejudiced by unnecessary habendum or reddendum clauses in the patent. Adelaide Cons. S. M. & Sm. Co. v. Gallagher, 6 C. L. O. 73. 150. Where a patent has been issued containing a reservation not warranted by law, and the patentee refuses to accept it for that reason, the patent may be canceled and a proper one issued in lieu thereof. W. A. Simmons, 7 L. D. 283. 151. Where a mineral patent has been issued containing a clause reserving the rights of town site claimant (unwarranted by law), and the patentee refuses for that reason to accept the patent, it may be canceled and a hearing ordered to determine the rights of the parties. Harry Livingston Lode, 7 L. D. 319. 152. A land patent should be delivered to the person surrendering the receiver's duplicate receipt; but if such receipt has been lost, the entryman or agent may secure the patent by filing affidavit of its loss. Com'r to Central City Office, April 18, 1870, Copp's Min. Lands, 75; Com'r to G. A. Green, Sept. 21, 1891; Com'r to Moses M. Strong, Nov. 20, 1891. 153. While the general rule is, that the decisions by the Land Department on questions of fact preliminary to the issuance of a patent are conclusive after the issuance of patent, "where each party has a patent from the government, and the question is as to the superiority of the title under those patents, if this depends upon extrinsic facts not shown by the patents themselves, we think it is competent, in any judicial proceeding where this question of superiority of title arises, to establish it by proof of those facts." Iron S. M. Co. v. Campbell, 135 U. S. 286. See 17 Colo. 267; 29 Pac. Rep. 513. 154. The Land Department in issuing a patent must necessarily consider and pass |