simple meant such title as the vendor could convey, and that the vendee was to rely upon the covenants contained in the deed to indemnify himself against loss by reason of the nonissuance of the patent, but also that the parties themselves so construed it by their subsequent acts and conduct."

Wyoming.

Slothower v. Hunter, 15 Wyo. 189, 88 Pac. 36 (1906). See this case on page 430.

LAND OFFICE DECISIONS.

Application for patent for Edna Placer was made in 1880. The land was correctly described in the application, notices and plat as N. E. 4 of S. W. 4 of sec. 14, etc. In the receipt, final certificate and patent, it was erroneously described as N. W. 4, etc. This error was not observed until 1890, when the land department was advised, and the owners contemplated steps to surrender the patent and to obtain a new patent with correct description. In 1897 K. applied for lode patents for the same ground. The Edna applicants were not required to file adverse claims. The land was not subject to disposition at the date of K.'s entry, which was canceled. Owers v. Killoran, 29 L. D. 160 (1899).

By entry and purchase, the right to a patent is acquired, and that right once vested is equivalent to a patent. While such entry remains of record, it precludes the acquisition of any adverse right to the land embraced therein. This principle protects the title to a portion of ground embraced in an entry which by mistake was omitted from the patent. McCormack v. Night Hawk & Nightingale Gold Min. Co., 29 L. D. 373 (1899).

The department is without jurisdiction after patent to correct mistakes made in the survey and embodied in the description, so long as the patent remains outstanding. The Mono Fraction Lode Min. Claim, 31 L. D. 121 (1901).

Although the land embraced in a patent passes beyond the jurisdiction and control of the department, the latter has the right to determine what lands have been patented and what remain subject to its jurisdictiou. In case of a variance between the locus of a patented claim, as indicated by the tie line described in the patent from a corner of the claim to a corner of the public survey, or a United States mineral monument, and as defined upon the ground, the department regards as constituting the claim the tract of land embraced in the survey and bounded by lines actually defined and established on the ground by monuments, substantially within the requirements of the law and official regulations and corresponding to the description in the patent. To land so determined to be patented. the department will not receive further application for patent. Sinnott v. Jewett, 33 L. D. 91 (1904).

p. 431. The act of March 3, 1891, c. 561, § 8, 26 Stat. 1099, Comp. St. 1901, p. 1521, provides that suits by the United States to vacate and annul any patents theretofore issued shall only be brought within five years from the passage of the act, and suits to vacate and annul patents thereafter issued shall only be brought within six years after the date of the issuance of such patents. Any action by the government, therefore, to set aside the patent after the expiration of that period, is barred by the statute. This act applies to all patents, whether originally valid or void. (United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447, 52 Law. Ed. 881.) The right of the government to maintain an action to annul a patent exists only against the patentee or those taking title from him with notice. It is a good defense to such action that the title has passed to a bona fide purchaser for value without notice.

United States.

United States v. American Bell Tel. Co., 167 U. S. 239, 42 Law. Ed. 144 (1897). Brewer, J., classifies the cases in which the government may maintain a suit to set aside a patent for land as follows: "First, where, the Government being the only party interested, the patent is charged to have been obtained by fraud in representations or conduct. Second, where the land by appropriate reservation is not subject to patent, but is nevertheless erroneously patented. Third, where the land, though subject to patent in the ordinary administration of the land office, is patented to the wrong person, either through fraud or by reason of mistake or inadvertence."

United States v. King, 27 C. C. A. 509, 83 Fed. 188 (1897). 9th Circ. In an action by the government to cancel a patent on the ground that it had been obtained by false and fraudulent representations, the burden of proof is on the government. "It was required to establish the fraud and connect the defendants with it. The presumption that the patent was correctly issued could only have been overcome by clear and convincing proof of the false and fraudulent representations whereby the patent was secured." It seems that such an action cannot be maintained for fraudulent representations as to the expenditure made to the register and receiver, when the certificate of the surveyor general is in regular form and it is not charged that the fraudulent testimony was furnished to him or that it influenced his action in any way.

Peabody Gold Min. Co. v. Gold Hill Min. Co., 49 C. C. A. 637, 111 Fed. $17 (1901), 9th Circ., affirming 97 Fed. 657, 106 Fed. 241. One who locates

a claim on ground for which a patent has previously been granted to another has no standing in court to set aside the patent. A suit to set aside an existing patent on the ground of fraud can only be instituted in the name of the United States.

A patent would not be vacated even at the suit of the government for alleged fraud practised on the government in representing the claims to be quartz claims when they were in fact placer claims, since the fact that they were placer claims would not have precluded the owner thereof from obtaining a single patent therefor; and the price per acre paid for the land patented as a quartz claim was greater than would have been the price per acre for placer claims, and consequently the government was not in any way injured by the alleged deception or false representation.

"A patent which has been in existence for 16 years, and which protects rights that have been continuously exercised by the patentee and his predecessors in interest for nearly 50 years, will not be declared void as to any portion of its granted premises solely for the reason that upon its face it purports to be based upon a single mining location, and conveys more than may lawfully be included in one location, when in fact the claims were several, and might have been united in a single patent upon a proper presentation of the facts."

United States v. Stinson, 197 U. S. 204, 49 Law. Ed. 724 (1905). Brewer, J. "While the Government, like an individual, may maintain any appropriate action to set aside its grants and recover property of which it has been defrauded, and while laches or limitation do not of themselves constitute a distinct defense as against it, yet certain propositions in respect to such an action have been fully established. First, the respect due to a patent; the presumption that all the preceding steps required by law have been observed before its issue; the immense importance and necessity of the stability of titles depending upon these official instruments demand that suits to set aside or annul them should be sustained only when the allegations on which this is attempted are clearly stated and fully sustained by proof. Maxwell Land-Grant Case, 121 U. S. 325, 30 Law. Ed. 949; Colorado Coal & Iron Co. v. United States, 123 U. S. 307, 31 Law. Ed. 182; United States v. San Jacinto Tin Co., 125 U. S. 273, 31 Law. Ed. 747; United States v. Des Moines Nav. & R. Co., 142 U. S. 510, 35 Law. Ed. 1099; United States v. Budd, 144 U. S. 154, 36 Law. Ed. 384; United States v. American Bell Tel. Co., 167 U. S. 224, 42 Law. Ed. 144. "Second. The Government is subject to the same rules respecting the burden of proof, the quantity and character of evidence, the presumptions of law and fact, that attend the prosecution of a like action by an individual. 'It should be well understood that only that class of evidence which commands respect, and that amount of it which produces conviction. shall make such an attempt successful.' Maxwell Land-Grant Case, supra, p. 381; United States v. Iron Silver Min. Co., 128 U. S. 673, 677, 32 Law. Ed. 571; United States v. Des Moines, etc., Co., supra, p. 541.

"Third. It is a good defense to an action to set aside a patent that the title has passed to a bona fide purchaser, for value, without notice. And,

generally speaking, equity will not simply consider the question whether the title has been fraudulently obtained from the Government, but also will protect the rights and interests of innocent parties. United States v. Burlington & Missouri River R. Co., 98 U. S. 334, 342, 25 Law. Ed. 198; Colorado Coal Co. v. United States, supra, p. 313."

LAND OFFICE DECISIONS.

"While the legal effect of a final decree cancelling a patent is to revest title to the land in the Government and restore it to the public domain, nevertheless the records in the land department still bear the memorandum of the entry and should be corrected to show the cancellation before other entry to the land is allowed, in the interest of orderly administration." Until, therefore, a notation of such cancellation is made upon the records, the local officers are directed to reject all proffered applications. Hiram M. Hamilton, 38 L. D. 597 (1910).

CHAPTER XV.

DIFFERENT KINDS OF CLAIMS, THEIR SPECIAL FEATURES AND CHARACTERISTICS.

p. 437. The owner of a validly located or patented lode claim, although he holds title subject to the right of the owners of other lode mining claims to possess and enjoy all veins, lodes and ledges throughout their entire depth, the apex of which lies inside of their surface lines extended downward, is nevertheless prima facie entitled to everything beneath his surface. Other parties who enter beneath that surface and seek to mine and take ore therefrom are prima facie trespassers. The burden of proof rests upon them to establish that they are mining upon the dip of a vein, the apex of which lies outside of the surface. under which they are mining. The cases differ as to the effect of the establishment of this fact by the presumptive trespasser. In Montana Co. v. Clark, 42 Fed. 626 (see vol. 1, p. 455), it was held that by establishing the fact that the defendant was following on its dip a vein whose apex was outside the limits of the plaintiff's claim, it was shown that the defendants were not trespassers because they were not following premises belonging to the plaintiff, the vein upon which they were mining being excepted by the statute from the grant to the plaintiff. The supreme court of Montana, in Parrot Silver & Copper Co. v. Heinze, 25 Mont. 139, 64 Pac. 326, 87 Am. St. Rep. 386, 53 L. R. A. 491, takes the view that proof that the vein has