tion. After the restoration of the land to the public domain another person made a regular location of the ground. Held, that the second locator had the superior right, for, the first location being made contrary to law, was void ab initio and so conferred no rights, the second location being the first one legally made. Kendall v. San Juan Silver M. Co., 9 Colo. 349; 12 Pac. Rep. 198; S. C., 144 U. S. 658: Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; S. C., 3 Mont. 65; United States v. Carpenter, 111 U. S. 347. Contra, Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040. 5. No rights to a mining claim can be acquired by acts of location or appropriation done while the land located or appropriated was covered by an Indian reservation. Uhlig v. Garrison, 2 Dak. 71; 2 N. W. Rep. 253; French v. Lancaster, 2 Dak. 346; 9 N. W. Rep. 716; 47 N. W. Rep. 395. 6. But if, at the date of the opening of the reservation, one who has made a location which would have been valid but for such reservation is in possession of the claim, he may adopt his prior acts, and by indicating such adoption and making the proper record of his location he may date his rights from the opening of the reservation. Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390; Caledonia G. M. Co. v. Noonan, 3 Dak. 189; 14 N. W. Rep. 426. (Affirmed, 121 U. S. 393.) 7. Lands within an Indian reservation are not subject to location and purchase under the mineral land laws. Com'r to W. C. Potter, Aug. 18, 1891; Com'r to J. G. Robey, Oct. 31, 1891; Com'r to G. W. Dike, Jan. 9, 1892. 8. Section 5 of the act of July 5, 1884, provides: Whenever any lands containing valuable mineral deposits shall be vacated by the reduction or abandonment of any military reservation under the provisions of this act, the same shall be disposed of exclusively under the mineral land laws of the United States." 23 Stat. 104. 9. This provision is not changed by the subsequent acts relative to the disposal of abandoned military reservations, viz.: Act of Aug. 23, 1894 (28 Stat. 491); Act of Feb. 15, 1895 (28 Stat. 665). 10. Coal lands formerly embraced within a military reservation, now abandoned, are not subject to homestead entry under the act 12. A location of a mining claim in compliance with the law confers a vested right which cannot be defeated by a subsequent reservation of the land by the Executive for public uses. Fort Maginnis Case, 1 L. D. 552 (Op. Att'y Gen.). 13. A location of a mining claim in accordance with law confers a vested right of property which will except the land located from the operation of a subsequent reservation for reservoir purposes. John U. Gabathuler, 15 L. D. 418; Com'r to W. L. Shank, Dec. 28, 1891; Com'r to G. G. Newcomb, Aug. 10, 1892. 14. "If a mining claim, within a timber or forest reservation, had been duly located, and the possessory right thereto had been maintained by a strict compliance with the United States mineral land laws, prior to issuing the Executive proclamation establishing the forest reservation, the mineral claimant would have the right to enter his claim and receive patent therefor, upon showing due compliance with all requirements of the law." Com'r to Mathew T. Chestnut, Sept. 26, 1893. 15. A temporary withdrawal from entry of lands in San Juan County, Utah, with view to their permanent reservation, was not such a reservation of the land as would render mining locations made thereon illegal, said withdrawal having since been revoked. Com'r to A. L. F. McDermott, Dec. 7, 1895. 16. Mineral lands are subject to reservation as reservoir sites under the act of October 2, 1888 (25 Stat. 526), and August 30, 1890 (26 Stat. 391). John U. Gabathuler, 15 L. D. 418. 17. Land within a military reservation is not subject to location under the mineral land laws. Com'r to W. E. Smith, Aug. 22, 1891. 18. Lands within the Yellowstone National Park are not subject to mineral locations. Com'r to F. A. Pratt, April 23, 1891. AN ACT To extend the mineral-land laws of the United Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the mineralland laws of the United States be, and are hereby, extended so as to apply to all lands embraced within the Colville Indian Reservation, namely: Beginning at a point on the eastern boundary line of the Colville Indian Reservation, where the township line between townships thirty-four and thirty-five north, of range thirty-seven east, of the Willamette meridian, if extended west would intersect California (Act of September 25, 1890; 26 Stat. 478), and in the Yosemite Forest Reservation, California. (Act of October 1, 1890; 26 Stat. 650.) 21. 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 the same, said point being in the middle of had been made for their sale, or other dispothe channel of the Columbia River, and run-sition, or they had been reserved from sale, ning thence west parallel with the forty-ninth the Department had no jurisdiction to transparallel of latitude to the western boundary fer the land, and their attempted conveyance line of said Colville Indian Reservation in the Okanogan River, thence north following the by patent is inoperative and void, no matter said western boundary line to the said forty- with what seeming regularity the forms of ninth parallel of latitude, thence east along law have been observed." Davis' Adm'r v. the said forty-ninth parallel of latitude to the Weibbold, 139 U. S. 507; S. C., 7 Mont. 107. northeast corner of the said Colville Indian Reservation, thence south following the eastern boundary of said reservation to the place of beginning: Provided, That the land used and occupied for school purposes at what is known as Tonasket School, on Bonapart Creek, and the site of the sawmill, gristmill, and other mill property on said reservation, is hereby reserved from the operation of this Act, unless other lands are selected in lieu thereof as provided in section six of the Act which became a law, without the approval of the President, July first, eighteen hundred and ninety-two, entitled "An Act to provide for the opening of a part of the Colville Reservation in the State of Washington, and for other purposes." Approved February 20, 1896. (29 Stat. 9.) 19. Those forest reserves in Colorado, known as the Pikes Peak, Plum Creek and South Platte Forest Reserves, "shall be open to the location of mining claims thereon for gold, silver, and cinnabar, and that title to such mining claims may be acquired in the same manner as it may be acquired to mining claims upon the other mineral lands of the United States for such purposes: Provided, That all locations of mining claims heretofore made in good faith within said reservations, and which have been held and worked in the same manner as mining claims are held and worked under existing law upon the public domain are validated by this act." Section 2 gives miners within said reservations the right to use timber from their claims for actual mining purposes in connection with the particular claim from which it is cut. (Act of February 20, 1896; 29 Stat. 11.) 20. Mineral deposits are to be preserved from injury in the Big Trees Reservation, 22. "The policy of Congress as expressed in its numerous grants of public lands to aid in construction of railroads, has always been to exclude the mineral lands from them and reserve them for special disposition, as seen in the following acts among others: Acts of July 1, 1862, C. 120, 12 Stat. 489, and of July 2, 1864. C. 216, 13 Stat. 356, making grants to the Union and Central Pacific Companies; act of July 4, 1866, C. 165, 14 Stat. 83, making a grant to the Iron Mountain Railroad Company; act of July 13, 1866, C. 182, 14 Stat. 94, making a grant to the Placerville etc., Railroad; act of July 25, 1866, C. 242, 14 Stat. 239, making a grant to the California & Oregon Railroad, sections 2 and 10; act of July 27, 1866, C. 278, 14 Stat. 292, making a grant to the Atlantic & Pacific Railroad and to the Southern Pacific Railroad; act of March 2, 1867. C. 189, 14 Stat. 548, making a grant to the Stockton & Copperopolis Railroad; act of March 3, 1871, C. 122, 16 Stat. 573, making a grant to the Texas Pacific Railroad." Barden v. Northern Pacific R. R. Co., 154 U. S. 288. 23. Section 4 of the act of July 2, 1864 (13 Stat. 358), reserving certain lands from the grant to the Central Pacific Railroad Company, is erroneously printed in the Statutes at Large, the correct reading being: "And any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any pre-emption, homestead, swamp land, or other lawful claim, nor include any government reservation or mineral lands, or the improvements of any bona fide settler on any lands returned and denominated as min. eral lands," etc. McLaughlin v. Menotti, 105 Cal. 572. 24. If the locator of a mining claim conveys a portion of his claim without any reservation in his deed of conveyance, his grantee would be entitled to all the ore found in the ground conveyed in any vein whose apex was within the surface lines of his deed. In other words, the rights of the grantee are measured by the terms of the deed, and in such a case section 2336, United States Revised Statutes, 7. The doctrine of the conclusiveness of judgments and decrees of courts, as between those who are parties to the litigation, is not applicable to the United States in regard to the proceedings before the land officers in granting patents for public lands. United States v. Miner, 114 U. S. 233. SUIT. pp. 297, 256, and 128.) has no application. Stinchfield v. Gillis, 107 (See ADVERSE, PATENT, and ABANDONMENT, Cal. 84; 40 Pac. Rep. 98; S. C., 96 Cal. 33; 30 Pac. Rep. 839. RES JUDICATA. 1. The doctrine of res judicata is not applicable in the absence of identity in the persons and parties. Merritt v. Philp, 16 L. D. 404. 2. The doctrine of res judicata does not apply in the face of manifest error. Southwestern M. Co. v. Gettysburg Lode, 4 L. D. 120. 3. A final decision of the Department in which a tract of land is held to be mineral in character is only conclusive up to the period covered by the inquiry, and will not preclude subsequent investigation as to the character of said tract. Dargin v. Koch, 20 L. D. 384. See, also, Searle Placer, 11 L. D. 441; Stinchfield v. Pierce, 19 L. D. 12; Zadig v. C. P. R. R. Co., 20 L. D. 26; McCharles v. Roberts, 20 L. D. 564; Barnstetter v. C. P. R. R. Co., 21 L. D. 464; Com'r to Denver Office, August 8, 1893. 4. A decision by the Land Department as to the character of land is not conclusive as to the character as known subsequent to the trial of the case upon which the decision is rendered. Thomas v. Thomasson, 16 L. D. 52. 5. 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. 1. "No possessory actions between persons, in any court of the United States, for the recovery of any mining title, or for damage to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States; but each case shall be adjudged by the law of possession." Sec. 910, U. S. Rev. Stat. 2. The plaintiff in a suit involving a mining claim, not under section 2326, United States Revised Statutes, need only allege ownership of the claim in general terms in his complaint. Souter v. Maguire, 78 Cal. 543; 21 Pac. Rep. 183; Donahue v. Johnson, 9 Wash. St. 187. 3. Possession is sufficient to enable one to maintain an action of trespass or ejectment against a stranger, but not against one who has the right of possession. Noyes v. Black, 4 Mont. 527; 2 Pac. Rep. 769. 4. In ejectment the plaintiff must prove a legal location based on a discovery of mineral-bearing rock in place in a discovery shaft such as is required by State statute. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 5. The plaintiff in an action of ejectment between the owners of conflicting lode mining claims must prove a discovery in his discovery shaft, and that the lode there discovered extends to the ground in conflict. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 6. In ejectment for a mining claim where it appears that the discovery shafts of both parties are identical, evidence that the dis 6. Judgment by default on an adverse suit renders res judicata only those facts which must have been proved to support the judg-coveries were made on lands patented prior ment rendered. Tyler M. Co. v. Sweeney, 4 U. S. App. 329; 54 Fed. Rep. 284; S. C., Tyler M. Co. v. Last Chance M. Co., 157 U. S. 683; 7 U.S. App. 463; 61 Fed. Rep. 463. to the dates of discovery of either party should be admitted, and if the fact is found, neither party can recover. Moyle v. Bullene, 44 Pac. Rep. 69 (Colo.). 15. Proof of the abandonment of a mining 7. A lode claimant claiming a conflict with another lode claim must, to recover, show | claim by a defendant may be given by plaint that his lode extends through the conflict. Zollars & Highland Chief Cons. M. Co. v. Evans, 2 McCrary, 39; 4 Mor. Min. Rep. 407. 8. In an ejectment suit where the plaintiff shows title by patent to a mining claim, and the defendant admits possession for town site purposes, the plaintiff is entitled to a judgment without showing that the surface is necessary to the working of his mine. Abbott v. Primeaux, 16 Nev. 361. 9. In an action to recover possession of a mining claim, the plaintiff must prove some title superior to that of the defendant by a preponderance of evidence. Wills v. Blain, 4 New Mex. 378; 20 Pac. Rep. 795. iff, in ejectment therefor, without a special plea, where the defendant pleads, and relies on, as a defense to the action, a location prior to that of plaintiff. Trevaskis v. Peard, 44 Pac. Rep. 246 (Cal.). 16. The validity of a mining location may not be questioned in an ejectment suit where both parties claim under such location. Union Cons. M. Co. v. Taylor, 100 U. S. 37; 5 Mor. Min. Rep. 323. 17. The defendant in an ejectment suit involving a mining claim may prove the plaintiff's title to have been lost by abandonment of the claim, under a general denial of plaintiff's title. Bell v. Brown, 22 Cal. 671; 15 Mor. Min Rep. 240. 10. "If there is any exception to the rule that in an action to recover possession of 18. An adverse suit should be brought in land the plaintiff must recover on the proper form. If the plaintiff is in possession strength of his own title, and that the de- he should bring his suit to quiet title; if not fendant in possession can lawfully say, until in possession, he should bring his action in you show some title, you have no right to dis-ejectment. Wolverton v. Nichols, 2 Pac. Rep. turb me - it has not been pointed out." Rey- 308; 15 Mor. Min. Rep. 309. See S. C., 119 U. S. nolds v. Iron Silver M. Co., 116 U. S. 687; 15 485. Mor. Min. Rep. 591. 11. The plaintiff in an action of ejectment for a mining claim may rest his right to recover upon a prior possession. Such an action does not necessarily put in issue the legal title, and plaintiff's recovery will not be conclusive of his grantor's title. Grady v. Early, 18 Cal. 108; 12 Mor. Min. Rep. 104. 12. In an action of ejectment, possession by the plaintiff is prima facie evidence of legal title and is sufficient as against a mere trespasser. Campbell v. Rankin, 99 U. S. 261; 12 Mor. Min. Rep. 257. 13. In an action of ejectment the legal title must prevail. The patent of the United States passes that title. Steel v. St. Louis Sm. Co., 106 U. S. 447. 14. Though in an action of ejectment to recover possession of a mining claim, if the defendant relies on forfeiture by the plaintiff, he must plead it specially, (Morenhaut v. Wilson, 52 Cal. 268), this is not the rule in adverse suits, where the better title must prevail, and if neither has it, neither will have a judgment. Steel v. Gold Lead G. & S. M. Co., 18 Nev. 80; 1 Pac. Rep. 448; 15 Mor. Min. Rep. 292. Contra, Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345. 19. In Colorado an adverse suit should be brought as an action of ejectment. Becker v. Pugh, 9 Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304. (Second trial, 17 Colo. 243; 29 Pac. Rep. 173.) 20. In an adverse suit in the nature of an action of ejectment, ouster need not be proven by plaintiff. Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309. 21. The Attorney General of the United States has authority to bring suit on behalf of the United States to vacate a land patent. United States v. San Jacinto Tin M. Co., 125 U. S. 273. (Affirming S. C., 23 Fed. Rep. 279.) United States v. Beebe, 127 U. S 338. 22. Where a patent erroneously issues for land which the United States is required by law to convey to one other than the patentee, the United States will bring suit to vacate. Hughes v. United States, 4 Wall. 232. 23. "If fraud, mistake, error or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals; and if the government is the party injured, this is the proper course." Moore v. Robbins, 96 U. S. 530. 24. In the case of a known lode in a placer | clear proof of fraud, but prompt assertion of claim at date of the placer application for such party's rights. Johnson v. Standard M. patent, and not included in the placer appli- | Co., 148 U. S. 360. cation, the rule which applies to all actions to recover possession of real estate applies, namely, that the plaintiff can only recover on the strength of his own title and not on the weakness of defendant's title. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591. 25. The exemption of the government from the operation of the Statute of Limitations or from the application of the doctrine of stale claim will not allow the statute or said doctrine to be evaded by the bringing of suit in the name of the United States, when a private person is the real party in interest. United States v. Beebe, 127 U. S. 338. 26. When an original purchaser of mining lands has complied with the legal requirements and obtained a patent certificate from the government, he has acquired a vested right in the land -a legal estate that can be recovered in an action of ejectment. Such an action is not subject to the Statute of Lim itations of Oregon, which is intended to apply to lands still subject to governmental disposition. Rader v. Allen, 27 Oreg. 344; 41 Pac. Rep. 154. 27. An applicant for a placer patent who has given due notice thereof and made entry may maintain a suit to quiet title against one claiming under a conflicting lode location. Dahl v. Raunheim, 132 U. S. 260. 28. Where the United States brings a suit in equity to vacate a land patent for fraud in its procurement, it is not obliged to tender repayment of the purchase price paid for the land by the patentee. United States v. Trinidad Coal & Coking Co., 137 U. S. 160. 29. Where a patent has been obtained through fraud, and if allowed to stand would work prejudice to the rights of the United States, or prevent it from fulfilling an obligation, suit to vacate is warranted. United States v. Missouri, K. & T. R. Co., 141 U. S. 358. 30. Where mining property has been developed by the courage and energy and at the expense of defendants until it has become of enormous value, courts will look with disfavor upon the claims of a party thereto who has lain idle while awaiting the results of this development, and will require not only 31. The United States will bring suit to vacate a patent issued through fraud or mistake. United States v. Wilson, 30 Fed. Rep. 309. 32. A hearing to determine whether or not suit should be recommended to vacate a United States patent should be ordered only by the Secretary of the Interior. Butte & Boston M. Co., 21 L. D. 125. 33. 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. 34. Suit to vacate should be recommended if patent was issued upon an incorrect survey. United States v. Rumsey, 22 L. D. 101. 35. Questions of the rights between town site and mineral claimants must be deter mined by the courts. Rico Town Site, 1 L. D. 556. 36. The courts are to decide all questions Eldred v. Lasey, Sickel's Min. Dec. 284. as to relative rights of contesting claimants. 37. In an action to quiet title to a mining claim where plaintiff sought to prove the performance of annual labor before defendant's fendant's testimony that the value of such relocation, a finding of the jury under dework was less than $100 will not be disturbed on appeal, where plaintiff barely proved the performance of the required work, if at all, under the best view of his testimony. Hirschler v. McKendricks, 16 Mont. 211; 40 Pac. Rep. 290. TAXATION. 1. The possessory title to a mining claim is such property as is subject to taxation by the State. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183; State v. Moore, 12 Cal. 56; 14 Mor. Min. Rep. 110; Seymour v. Fisher, 16 Colc. 188; 27 Pac. Rep. 240; Hale & Norcross G. & S. M. Co. v. Story County, 1 Nev. 104; 14 Mor. Min. Rep. 115. 2. After entry, land may be taxed by the State. Alta M. & Sm. Co. v. Benson M. & Sm. Co., 16 Pac. Rep. 565. 3. The moment mineral or ore becomes detached from the soil of the public lands in which it is imbedded, it becomes personal |