persons who purchase on the faith of the Re- | Leavenworth, etc. R. R. Co. v. United States, ceiver's receipt do so at their own risk and take the land subject to all the infirmities of title, so far as the government is concerned." Louise M. Co., 22 L. D. 662. 58. 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 non-alienation 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. 59. 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. 60. "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.) 61. Land patents, in actions at law, are conclusive "of all matters of fact necessary to their issue, where the Department had jurisdiction to act upon such matters, and to determine them; but if the lands patented were not at the time public property, having been previously disposed of, or no provision had been made for their sale, or other disposition, or they had been reserved from sale, the Department had no jurisdiction to transfer the land, and their attempted conveyance by patent is inoperative and void, no matter with what seeming regularity the forms of law have been observed." Davis' Adm'r v. Weibbold, 139 U. S. 507. See 7 Mont. 107. 62. 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; 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; 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 S. 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; N. `P. R. R. Co. v. Cannon, 7 U. S. App. 507. 63. 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; Meyendorf v. Frohner, 3 Mont. 282; 5 Mor. Min. Rep. 56; Boggs v. Merced M. Co., 14 Cal. 279; 10 Mor. Min. Rep. 334; S. C., 3 Wall. 304. 64. A patent may be attacked collaterally by showing that the Land Department had no jurisdiction over the land patented. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Wright v. Roseberry, 121 U. S. 488; Doolan v. Carr, 125 U. S. 618; Francoeur 238. v. Newhouse, 40 Fed. Rep. 618; 43 Fed. Rep. 65. The Land Department, in issuing a patent, must necessarily consider and pass 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. Steel v. St. Louis Sm. Co., 106 U. S. 447. 66. "The presumption attending the patent, even when directly assailed, that it was issued upon sufficient evidence that the law had been complied with by the officers of the government charged with the alienation of public lands, can only be overcome by clear and convincing proof." United States v. Iron Silver M. Co., 128 U. S. 673. (Affirming S. C., 24 Fed. Rep. 568.) 67. 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 | be shown as a fact by proof. Valley Lode, 22 mistake and compel the transfer of the legal | L. D. 317. title to him as the true owner. Lee v. Johnson, 116 U. S. 48; Puget Mill Co. v. Brown, 15 U.S. App. 274. 68. "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. See, also, Lee v. Johnson, 116 U. S. 48. 69. Should it appear to the satisfaction of the Land Department that a lode was known to exist within the limits of a placer claim at the date of application for patent for the placer, the lode with surface ground twentyfive feet in width on each side of the middle thereof may be patented notwithstanding the issuance of a placer patent. Shonbar Lode, 1 L. D. 551; 3 L. D. 388. See Pikes Peak Lode, 10 L. D. 200; South Star Lode, 20 L. D. 204. 70. 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 proof, suit to vacate the same should be brought by the United States. Pikes Peak Lode, 10 L. D. 200. (Overruled by South Star Lode Case, 20 L. D. 204.) 71. The question whether or not a lode was known to exist within a placer claim at date of the application for the placer patent is always one for an ultimate decision by the courts. After the Land Department has issued a patent for the placer claim its jurisdiction over the land patented has ceased, and the only way the title of the patentee can be impeached is by proper proceedings in court. Iron Silver M. Co. v. Campbell, 135 73. 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. 74. 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. 75. 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. Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574. 76. The Land Department cannot include in a town site patent any mine, mining claim or mining 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. 77. "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 prescribes." Deffeback v. Hawke, 115 U. S. 392; Sparks v. Pierce, 115 U. S. 408. 78. "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 condition 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 72. After the issuance of a placer patent the diminished by any reservation of the officers Land Department will not assume that a lode of the Land Department, resting for their fitwas known to exist within the placer claim be-ness only upon the judgment of those officers." cause of the fact that a lode claim was located Davis' Adm'r v. Weibbold, 139 U. S. 507. See therein prior to the placer 'application. The 7 Mont. 107. (Citing Deffeback v. Hawke, 115 known existence of the lode at that date must U. S. 392.) U. S. 286. 86. Proceedings to vacate a patent will only be recommended by the Land Department upon a clear showing that it was erro 79. Where the applicant for patent for a | Co., 24 Fed. Rep. 568. (Affirmed, see 128 U. S. lode claim situate within a patented town 673.). 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 rein-neously issued. James D. Negus, 11 L. D. 32. vest the Land Department with jurisdiction to patent the claim. Pederson Lode v. Black Hawk Town Site, 14 L. D. 186. 80. A mineral patent renders res judicata, so far as the Land Department is concerned, the fact that the land was known to be mineral. Blackmore v. Reilly, 17 Pac. Rep. 72. 81. 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 refusing to pass upon the title of those claiming under the decedent. Com'r to Helena Office, March 25, 1896, Broadwater Placer. 82. 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. Champion M. Co. v. Cons. Wyoming G. M. Co., 75 Cal. 78; 16 Pac. Rep. 513; Last Chance M. Co. v. Tyler M. Co., 61 Fed. Rep. 587; 9 U. S. App. 612; Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 645. 83. The grantee of an entryman before is suance of patent takes no better title than his grantor and cannot pose before the Land Department as an innocent purchaser. R. M. Chrisinger, 4 L. D. 347. 4. Patent, Vacation of. 84. Clear and convincing proof must be presented to warrant the Land Department in recommending suit to vacate a patent for fraud. Butte & Boston M. Co., 21 L. D. 125. 85. Fraud to set aside a patent must be fraud extrinsic to the matter tried in the Land Department. United States v. White, 17 Fed. Rep. 561; United States v. San Jacinto Tin M. Co., 23 Fed. Rep. 279. (Affirmed, see 125 U. S. 273.) The representations must have been falsely and fraudulently made. A mistake as to the character of the land will not suffice. United States v. Iron Silver M. 87. A petition addressed to the General Land Office, asking that suit be brought to vacate a patent, should be forwarded to the Department with a recommendation as to the advisability of ordering a hearing preliminary to the recommendation of such suit. Butte & Boston Mining Co., 21 L. D. 125. 88. Suit will be recommended by the Land Department to vacate a patent procured by fraud, where such action is necessary to protect the rights of a third person. Mountain Maid Lode, 5 L. D. 28. 89. The Land Department will recommend to the Department of Justice that suit be instituted to vacate a patent issued through inadvertence and mistake to the prejudice of another. Lead City Town Site v. Little Nell Lode, 17 L. D. 291. 90. Suit to vacate a mineral patent will not be recommended by the Land Department when the petition therefor is based upon allegations of an adverse claim which might have been properly asserted. Thomas Starr, 2 L. D. 759. 91. Suit to vacate a patent for fraud in its procurement will not be recommended by the Land Department where the fraud is not the hands of a bona fide purchaser. G. T. clearly shown and the land has passed into Dickinson, 10 L. D. 449. 92. Suit to vacate a patent for fraud in its procurement will not be recommended by the Land Department where the land has passed into the hands of one not shown to have taken with notice of the fraud. William W. Wilson, 6 L. D. 395. 93. Suit to vacate a patent will not be recommended by the Land Department on the ground of fraud, unless the showing thereof is clear and specific. Thomas Starr, 2 L. D. 759. 94. A bill in chancery brought in the name of the United States to vacate a patent cannot be made to serve as a writ of error, or as a motion for a new hearing, or as a motion for a new trial of the case as decided by the Land Department. United States v. Marshall M. Co., 129 U. S. 579. 95. 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 Department. It is only a case of fraud that will warrant a court in looking into the evidence. Lee v. Johnson, 116 U. S. 48. 96. Where an applicant for a lode patent shows the lode to have been known at date of application for a patented placer with which it conflicts, instead of incurring the expense of 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. 97. 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 date of the town site entry, with 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. 98. If land known to be valuable for mineral is patented to a railroad company under a grant excepting mineral lands, the United States has such interest in the matter as would warrant the Secretary of the Interior in recommending suit to vacate patent. Bul lock v. C. P. R. R. Co., 11 L. D. 590. 99. 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 to reconvey the land covered thereby, suit to vacate the patent will be recommended by the Land Department. United States v. Rumsey, 22 L. D. 101. 100. 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. 5. Cancellation. 101. The Land Department has no authority to cancel an entry for fraud. The government must seek relief in court. Smith v. Ewing, 11 Sawy. 56; 23 Fed. Rep. 741; Wilson v. Fine, 14 Sawy. 224; 40 Fed. Rep. 52. 102. The Land Department may not cancel an entry even on contest had. Smith v. Ewing, 11 Sawy. 56; 23 Fed. Rep. 741; Wilson v. Fine, 14 Sawy. 224; 40 Fed. Rep. 52; Stimson v. Clark, 45 Fed. Rep. 760; American Montana Co. v. Hopper, 48 Fed. Rep. 47. But see Cornelius v. Kessel, 128 U. S. 456. 103. The Land Department may inquire into the validity of an entry and may cancel it if improperly allowed. German Insurance Co. v. Hayden, 40 Pac. Rep. 453. See sub-title, Commissioner of the General Land Office. 104. The cancellation of an entry without service on the claimant by the Land Department is void. Young v. Hanson, 64 N. W. Rep. 654. 105. Where, after publication of notice of application for patent and before entry, a mining claim is relocated by a stranger, for failure on part of the applicant to make the required annual expenditure, and such failure and relocation are shown at a hearing, the entry will be canceled and the parties left to litigate their conflicting claims in court. The Land Department will not pass upon the validity of the relocation in such a case. Little Pauline Lode v. Leadville Lode, 7 L. D. 506. 106. Where a claim has been applied for and subsequently forfeited, a relocator who desires to apply for a patent should secure the cancellation of the existing application G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 by the Land Department. Steel v. Gold Lead Mor. Min. Rep. 292. 107. A coal entry should not be canceled for failure to furnish proof not required by the Land Department regulations at date of entry. Durango Land & Coal Co., 18 L. D. 382. 108. The transferee of a coal entryman, prior to issuance of patent, takes no greater right than his grantor had, i. e., an equitable title, and the entry is subject to cancellation by the Land Department just as though no transfer had been made. Scott v. Sheldon, 15 L. D. 588. (On review.) 6. Secretary of the Interior. (See also COMMISSIONER OF THE GENERAL LAND OFFICE.) 109. The Secretary of the Interior is charged (among other things) with the super-vision of public business relating to the pub lic lands, including mines. (Sec. 441, U. S. 7. Commissioner of the General Land Rev. Stat.) Knight v. United States Land Ass'n, 142 U. S. 161. 110. "The secretary is the guardian of the people of the United States over the public lands. The obligations of his oath of office oblige him to see that the law is carried out and that none of the public domain is wasted or is disposed of to a party not entitled to it. He represents the government, which is a party in interest in every case involving the surveying and disposal of the public lands." Knight v. United States Land Ass'n, 142 U. S. 161. 111. The Secretary has supervisory power over the Commissioner of the General Land Office. Maguire v. Tyler, 1 Black, 195; S. C., 8 Wall. 650; Snyder v. Sickels, 98 U. S. 203; Buena Vista County v. Iowa Falls & S. C. R. R. Co., 112 U. S. 165; Lee v. Johnson, 116 U. S. 48; Williams v. United States, 138 U. S. 514; Knight v. United States Land Ass'n, 142 U. S. 161; Orchard v. Alexander, 157 U. S. 372; Pierce v. Frace, 157 U. S. 372; Sweigart v. Walker, 30 Pac. Rep. 162. 112. A petition asking the Secretary of the Interior to recommend suit to vacate a land patent will not be considered if not served upon the one claiming under the patent. Little Nell Lode, 16 L. D. 104. Office. (See also SECRETARY OF THE INTERIOR.) 116. "The Commissioner of the General Land Office, under the direction of the Secretary of the Interior, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this Title not otherwise specially provided for." Sec. 2478, U. S. Rev. Stat. (This section forms a part of Title XXXII, U. S. Rev. Stat., The Public Lands.) 117. The Commissioner of the General Land Office exercises supervisory authority over registers and receivers of local land offices. Sweigart v. Walker, 30 Pac. Rep. 162. 118. "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 anywise 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. United States Land Ass'n, 142 U. S. 161. and carry into execution, by appropriate reg ulations, every part of the provisions of this Title not otherwise specially provided for." (Sec. 2478, U. S. Rev. Stat.) Knight v. United States Land Ass'n, 142 U. S. 161. 119. "The Commissioner of the General 113. "All cases presented to the Depart- Land Office, under the direction of the Secrement of the Interior are to be heard and de-tary of the Interior, is authorized to enforce termined by the Secretary without regard to any legislation which it may be imagined or suggested will take place," but if the decision of a case depends upon the determination of | a question pending before the United States Supreme Court, action by the Department may properly be stayed to await the judgment of the court. Attorney General to Secretary of the Interior, Nov. 12, 1877, In re McGarrahan v. New Idria M. Co., 4 C. L. O. 130. 114. The decision of the Secretary of the Interior or the Commissioner of the General Land Office of cancellation of an entry takes effect from date of its rendition, not from its receipt by local officers and notation on their records. McDonald v. Hartman, 19 L. D. 547. 115. A decision of the Secretary affirming the judgment of cancellation by the Commissioner is a judgment of cancellation. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep. 505. 120. The Commissioner of the General Land Office has authority to cancel an entry illegally allowed. "The exercise of this power is necessary to the due administration of the Land Department. If an investigation of the validity of such entries were required in the courts of law, before they could be canceled, the necessary delays attending the examination would greatly impair, if not destroy, the efficiency of the Department." Cornelius v. Kessel, 128 U. S. 456. 121. The Commissioner of the General Land Office may cancel an entry. Barnard's Heirs v. Ashley's Heirs, 18 How. 45; Bell v. Hearne, 19 How. 252; Harkness v. Underhill, 1 Black, 316; Marquez v. Frisbie, 101 U. S. 473; United States v. Schurz, 102 U. S. 378; |