If no conspicuous place on the claim during such period of publication. adverse claim shall have been filed with the register and the receiver of the proper land-office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter. Provided, That where the claimant for a patent is not a resident of or within the land district wherein the vein, lode, ledge, or deposit sought to be patented is located, the application for patent and the affidavits required to be made in this section by the claimant for such patent may be made by his, her, or its authorized agent, where said agent is conversant with the facts sought to be established by said affidavits: And provided, That this section shall apply to all applications now pending for patents to mineral lands. [R. S.] Act of May 10, 1872, ch. 152, 17 Stat. L. 92. The provisos were added to the section by Act of Jan. 22, 1880, ch. 9, sec. 1, 21 Stat. L. 61. A failure to file an adverse claim is a waiver of all rights. Nesbitt v. Delamar's Nevada Gold Min. Co., (1898) 24 Nev. 273. See also Lee v. Stahl, (1886) 9 Colo. 208. When no adverse claim within the time prescribed is filed, it must be assumed that the applicant is entitled to a patent, and that no adverse claim exists. Lily Min. Co. v. Kellegg, (Utah 1903) 74 Pac. kep. 518. See also Lavagnino v. Uhlig, (1903) 26 Utah 1. By one who had received a patent. The provision concerning adverse claims was not intended to affect a party who, before the publication first required, had himself gone through all the regular proceedings required to obtain a patent for mineral land from the United States; had established his right to the land claimed by him, and received his patent; and was reposing quietly upon its sufficiency and validity. Iron Silver Min. Co. v. Campbell, (1890) 135 U. S. 298. A purchaser at an auction sale of the interest of a locator, pending an application for a patent, purchases only the present interest of the judgment debtor, and is an adverse claimant against such judgment debtor, with a right to file his claim under the statute; if the defendant goes on and procures the title from United States, the patent vests in him an absolute title. Hamilton v. Southern Nevada Gold, etc., Co., (1887) 33 Fed. Rep. 562. May set up a trust. - The provision that if no adverse claim shall have been filed, it shall be assumed that the applicant is entitled to a patent, does not prevent a party from maintaining a bill in equity to have a patentee declared a trustee for the use of the plaintiff. Turner v. Sawyer, (1893) 150 U. S. 587. See also Fisher v. Seymour, (1897) 23 Colo. 542. See Ducie v. Ford, (1891) 138 U. S. 587. Several locations may be included in one patent. St. Louis Smelting, etc., Co. v. Kemp, (1881) 104 U. S. 649. Applicant need not adverse subsequent application. One who has regularly applied for a patent is not compelled, in order to preserve his rights, to protest against any subsequent application for the same ground while his own application is still pending in the land department. Steel v. Gold Lead, etc., Min. Co., (1883) 18 Nev. 80. Sixty days' limitation. -The fact that the sixty days prescribed for the publication of notice had expired before the complainant adversed the application, was held to have no application to a case where the adverse claim did not arise until after the expiration of the sixty days' limitation, and the applicant for the patent had let his application lie dor- ( mant for a number of years without either paying the purchase money or doing the required work of one hundred dollars each year? pending the application for patent. Gillis v. Downey, (C. C. A. 1898) 85 Fed. Rep. 483. Notwithstanding a regulation of the department requiring ten weekly publications of the notice, making sixty-three days between the first and last publication, yet the adverse claim must be filed within sixty days as provided by the statute. Hunt v. Eureka Gulch Min. Co., (1890) 14 Colo. 456. The publication of the notice is process, and brings all adverse claimants into court, and, failing to assert their claims, they stand, at the expiration of the notice, in default. Wight v. Dubois, (1884) 21 Fed. Rep. 695. Personal notice is not required by the statute. Northern Pac. R. Co. v. Cannon, (C. C. A. 1893) 54 Fed. Rep. 253. "That the applicant has failed to comply with the terms of this chapter." - All that this provision covers is the right to anybody to come in and enter his protest or objection; in other words, to say to the officers of the government that the applicant has not complied with the terms of the statute. He does not appear as a party asserting his own right, and such a protest does not revivify rights lost by a failure to adverse. Wight v. Dubois, (1884) 21 Fed. Rep. 695. Patent is conclusive of patentee's rights. A patent, in a court of law, is conclusive as to all matters properly determinable by the land department, when its action is within the scope of its authority, that is, when it has jurisdiction under the law to con vey the land. In that court the patent is unassailable for mere errors of judgment." St. Louis Smelting, etc., Co. v. Kemp, (1881) 104 U. S. 646. See also Bunker Hill, etc., Min., etc., Co. v. Empire State-Idaho Min., etc., Co., (C. C. A. 1901) 109 Fed. Rep. 538; Fox v. Mackay, (1901) 1 Alaska 332; Poire v. Wells, (1882) 6 Colo. 409; Hunt v. Eureka Gulch Min. Co., (1890) 14 Colo. 454. A proceeding in the land office is judicial in its character, and in the nature of a proceeding in rem. If there is no adverse claim, a decision of the land office awarding the patent to the claimant is a judgment by default, as conclusive as to the matter adjudicated as a judgment upon contested issues, and deprives an adverse claimant of all remedies except those which a court of equity might allow to be urged against a judgment at law. Golden Reward Min. Co. v. Buxton Min. Co., (1897) 79 Fed. Rep. 868. See also New Dunderberg Min. Co. v. Old, (C. C. A. 1897) 79 Fed. Rep. 598; Northern Pac. R. Co. v. Cannon, (C. C. A. 1893) 54 Fed. Rep. 252; Aurora Hill Consol. Min. Co. v. 85 Min. Co., (1888) 34 Fed. Rep. 515; Hall v. Equator Min., etc., Co., (1879) 11 Fed. Cas. No. 5,931; German Ins. Co. v. Hayden, (1895) 21 Colo. 137; South End Min. Co. v. Tinney, (1894) 22 Nev. 19. "The issuance by the government of its patent, after due notice to all the world of the application, and ample notice to every one to contest it, conclusively determined, as against every one whose surface lines conflicted therewith, the priority of that location over every other, including the Stemwinder, and conferred upon the patentees and their successors in interest not only the entire surface of the claim, but, as against every one whose surface lines conflicted with those of the Last Chance, the extralateral rights conferred by sec. 2322 of the Revised Statutes to follow on their dip outside of the side lines, and within vertical planes drawn through the parallel end lines extended in their own direction, all veins, lodes, or ledges the tops or apexes of which lie inside the surface lines of the claim." Empire StateIdaho Min., etc., Co. v. Bunker Hill, etc., Min., etc., Co., (C. C. A. 1902) 114 Fed. Rep. 420. Patent cannot be collaterally attacked. Cowell v. Lammers, (1884) 21 Fed. Rep. 200. See also New Dunderberg Min. Co. v. Old, (C. C. A. 1897) 79 Fed. Rep. 598; Pacific Coast Min., etc., Co. v. Spargo, (1883) 16 Fed. Rep. 348. "The dignity and character of a patent from the United States is such that the holder of it cannot be called upon to prove that everything has been done that is usual in the proceedings had in the land department before its issue, nor can he be called upon to explain every irregularity or even impropriety in the process by which the patent is procured. Especially is it true that where the United States has not received any damage or injury, and can obtain no advantage from the suit instituted by it, the conduct of the parties themselves, for whose benefit such action may be brought, must it5 F. S. A.-3 self be so free from fault or neglect as to au- End lines not in fact parallel. of a patentee are to be determined by the terms of his patent, and when the description in a patent gives it parallel end lines, and grants the right to follow all lodes on their dip outside of the side lines whose apex is within the surface lines of the claim, the courts cannot go behind it in a collateral proceeding, though the end lines are not in fact parallel. Waterloo Min. Co. 17. Doe, (C. C. A. 1897) 82 Fed. Rep. 45. A patent, void on its face, may be impeached collaterally in a court of law. Poire v. Wells, (1882) 6 Colo. 409. Land officers without jurisdiction. It may be shown that the land officers were without jurisdiction to issue the patent. Chicago Quartz Min. Co. v. Oliver, (1888) 75 Cal. 194. If the statute has not been complied with, and a patent is issued without authority of law, no substantial title is acquired. Rose v. Richmond Min. Co., (1882) 17 Nev. 61. If a patent be obtained by fraud and trickery practiced in the land office without notice to others who are the beneficial owners of the property in accordance with the laws of the United States, and without their knowledge, a court of equity can afford relief. South End Min. Co. v. Tinney, (1894) 22 Nev. 19. The government has the same right to demand a cancellation of patent when obtained by fraud or fraudulent representation as a private individual when a conveyance of his Îand is obtained in like manner. The burden of proof in such cases is upon the government. 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 location of public lands, can only be overcome by clear and convincing proof. U. S. v. Iron Silver Min. Co., (1888) 128 U. S. 676. Burden of proof. — In a suit to cancel a patent to a mining claim on the ground that the patent had been obtained by means of false and fraudulent representations, the burden of proof is upon the government. The presumption that the patent was correctly issued can only be overcome by clear and convincing proof of the false and fraudulent representations whereby the patent was secured. U. S. v. King, (C. C. A. 1897) 83 Fed. Rep. 188. Matters within jurisdiction of land department. - The sufficiency of the work performed and improvements made upon each claim, both as to amount and character, is a matter to be determined by the surveyorgeneral from his own observation, or from the testimony of parties having knowledge of the subject; and where there are no fraudulent representations to him respecting them by the patentee, his determination, unless corrected by the land department before patent, must 33 Volume V. be taken as conclusive. U. S. v. Iron Silver Min. Co., (1888) 128 U. S. 685. See also U. S. v. King, (C. C. A. 1897) 83 Fed. Rep. 188. The question as to what are the true boundaries of a claim is a question of fact, coming properly within the jurisdiction of the land department. Golden Reward Min. Co. v. Buxton Min. Co., (1897) 79 Fed. Rep. 868. Interest conveyed by patent. This section and sections 2319 and 2322, R, S., tend to indicate that the patent when issued is a grant of land with all the rights incident to common-law ownership. St. Louis Min., etc., Co. v. Montana Min. Co., (C. C. A. 1902) 113 Fed. Rep. 900. "Patents issued since the passage of the Act of 1872 convey, under that Act, to the grantees, all the surface included within the lines of their location, and all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside such surface lines, where no adverse rights existed on the 10th of May, 1872." Blake v. Butte Silver Min. Co., 2 Utah 61. berg Min. Co. v. Old, Rep. 598. See also New Dunder(C. C. A. 1897) 79 Fed. A valid location is equivalent to a contract of purchase. The location, together with the necessary work, is the purchase, and the patent is the evidence of the title so acquired. The location, therefore, has the effect of a grant from the government to the locator, and this grant cannot be defeated or abridged by an unauthorized exception contained in the patent, for the patent must always be in accordance with the consummation of the grant evidenced by a valid location. Talbott v. King, (1886) 6 Mont. 76. When two parties have patents 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, it is competent, in any judicial proceeding where this question of superiority of title arises, to establish it by proof of these facts. Iron Silver Min. Co. v. Campbell, (1890) 135 U. S. 292. A placer claimant may adverse an application for a patent of a lode claim. Clipper Min. Co. v. Eli Min., etc., Co., (1904) 194 U. S. 233. The proceedings set forth in this section apply to applications for placer patents, notwithstanding the difference between the rights of the lode and the placer claimant, as to the quantity of land, the price per acre, conformity to public surveys, and other minor matters. Northern Pac. R. Co. v. Cannon, (C. C. A. 1893) 54 Fed. Rep. 253. The owner of a town lot, unpatented, can adverse the application of one applying for a patent to a lode claim; any person having a claim, other than a patented one, adverse to the applicant for patent, may adverse the same. Young v. Goldsteen, (1899) 97 Fed. Rep. 303. See also Bonner v. Meikle, (1897) 82 Fed. Rep. 697. But see Behrends v. Goldsteen, (1902) 1 Alaska 518. The owners of town lots can adverse the application of one applying for a patent to a mining claim though neither the town authorities nor the owners have taken any steps to secure title from the government to the land occupied by them. Bonner v. Meikle, (1897) 82 Fed. Rep. 697. "In order to except mines or mineral lands from the operation of a town-site patent, it is not sufficient that the lands do in fact contain minerals, or even valuable niinerals, when the town-site patent takes effect, but they must at that time be known to contain minerals of such extent and value as to justify expenditures for the purpose of extracting them; and, if the lands are not known at that time to be so valuable for mining purposes, the fact that they have once been valuable, or are afterwards discovered to be still valuable, for such purposes, does not defeat or impair the title of persons claiming under the town-site patent." Bonner v. Meikle, (1897) 82 Fed. Rep. 697. The claimant of a tunnel site is not required to file an adverse claim and submit his rights in the lode claims it crosses to adjudication by the land department upon the filing of applications for patents to those claims when his rights are at that time uncertain, contingent, and intangible. Uinta Tunnel Min., etc., Co. v. Creede, etc., Min., etc., Co., (C. C. A. 1902) 119 Fed. Rep. 167. See also Enterprise Min. Co. v. Rico-Aspen Consol. Min. Co., (1897) 167 U. S. 115; Ellet v. Campbell, (1893) 18 Colo. 510. "When the claim to a tunnel site has been located before the entry of conflicting lode claims, which have subsequently passed to patents, the question whether discoveries of mineral in place were made in the lode claims before or after the location of the claim to the tunnel site was perfected is open to determination by means of the testimony of witnesses and other competent evidence dehors the patents in any litigation between the parties involving their conflicting claims." Uinta Tunnel Min., etc., Co. v. Creede, etc., Min., etc., Co., (C. C. A. 1902) 119 Fed. Rep. 170. A patent of land to a lode claimant is issued subject to the rights of the claimant of a tunnel site located before the entry of the land. Uinta Tunnel Min., etc., Co. v. Creede, etc., Min., etc., Co., (C. C. A. 1902) 119 Fed. Rep. 168. Record as to co-owner. The record on an application for a patent need not show that a co-owner had lost his title to the ground by the publication of a notice, as required by section 2324, R. S., nor need it show that the co-owner had not contributed his part in labor or money to represent the claim. Riste v. Morton, (1897) 20 Mont. 139. Prior to the Act of May 10, 1872, a locator was entitled to one ledge only, and a patent containing the provision "together with all other veins, lodes, ledges, or deposits. throughout their entire length, as aforesaid, the tops or apexes of which lie inside of the exterior lines of said survey, as against all persons claiming under location made upon such other veins, lodes, ledges, or deposits subsequent to May 10, 1872," excludes from the grant to the locators any other ledge, located by parties other than the grantees, prior to May 10, 1872. Eclipse Gold, etc., Min. Co. v. Spring, (1881) 59 Cal. 304. Sec. 910. [Possessory actions for recovery of mining titles.] No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages 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. [R. S.] Act of Feb. 27, 1865, ch. 64, 13 Stat. L. 441. Before the enactment of any statute recognizing and relating to his possessory rights, the mining locator, as between himself and the United States, was technically a mere trespasser upon the public domain; and even although he might have conformed in his location to the rules and customs adopted in the mining district in which his claim was situated, yet so far as any legal right existed to hold his claim against the newcomer, that right rested upon possession merely; hence the statute. Duggan v. Davey, (1886) 4 Dak. 110. In furtherance of the policy to make the possession of that part of the public lands which is valuable for minerals separable from the fee, and to provide for the existence of an exclusive right to the possession, while the paramount title to the land remains in the United States, Congress enacted this statute. Belg v. Meagher, (1881) 104 U. S. 283. By "mining title," as employed in this statute, evidently is meant the title which the miner obtains by his discovery and location, followed up by a compliance with the statutory regulations to preserve his right of possession, and therefore, in a possessory action between persons, notwithstanding the paramount title to the land is in the United States, the case shall be adjudged by the law of possession as between the parties. Gillis t. Downey, (C. C. A. 1898) 85 Fed. Rep. 486. The state statute provides that the distinction between actions at law and suits in equity and the forms of all such actions and suits are abolished. A further statute declares that any person in possession, by himself or his tenant, of real property, may maintain an action of an equitable nature against another who claims an estate or interest therein adverse to him for the purpose of determining such claim, estate, or interest." Under such statutory provisions and this section it is clear that one who first makes a valid location of a mining claim and enters into its possession, acquires a title thereto; not the legal title which remains in the United States until conveyed by it, but such title as the laws of the United States recognize and will protect as against an intruder. Fulkerson v. Chisma Min., etc., Co., (C. C. A. 1903) 122 Fed. Rep. 784. The law of possession means the local rules and customs of miners. Rico-Aspen Consol. Min. Co. v. Enterprise Min. Co., (1892) 53 Fed. Rep. 321. Form of action. - Ejectment will lie for a mining claim although paramount title be in the United States. Davidson v. Calkins, (1899) 92 Fed. Rep. 230. See also Aurora Hill Consol. Min. Co. v. 85 Min. Co., (1888) 34 Fed. Rep. 520. In justice's court. In Duffy v. Mix, (1893) 24 Oregon 265, it was held that the right of possession of a mine is not a legal estate or title to land, so that an action might be maintained in a justice's court for its recovery, under a state statute giving to a justice of the peace jurisdiction of an action to recover the possession of a mining claim. Sec. 2326. [Adverse claim, proceedings on.] Where an adverse claim is filed during the period of publication, it, shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment-roll with the register of the land-office, together with the certificate of the surveyor-general that the requisite amount of labor has been expended or improv [e]ments made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land-Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor-general, whereupon the register shall certify the proceedings and judgment-roll to the Commissioner of the General Land-Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining-claim to any person whatever. [R. S.] Act of May 10, 1872, ch. 152, 17 Stat. L. 93. See amendments in acts of March 3, 1881, ch. 140, and April 26, 1882, ch. 106, following. An act to amend section twenty-three hundred and twenty-six of the Revised Statutes relating to suits at law affecting the title to mining claims. [Act of March 3, 1881, ch. 140, 21 Stat. L. 505.] [Findings by jury costs.] That if, in any action brought pursuant to section twenty-three hundred and twenty-six of the Revised Statutes, title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land-office or be entitled to a patent for the ground in controversy until he shall have perfected his title. [21 Stat. L. 505.] "Prior to the year 1881, in adverse suits, even where the applicant had not complied with these precedent requirements, he frequently secured title; for the adversing party, being plaintiff in the resulting suit, had the burden of the issue, and under the familiar rule in ejectment was required to recover on the strength of his own title, regardless of the weakness of that of his adversary. If he failed to establish a valid prior location, verdict and judgment went for defendant (the applicant), though the latter had not shown compliance with the law. To avoid this anomalous and illogical result the statute in question was adopted. By authorizing a verdict and judgment in the adverse suit that neither party has shown title to the ground,' it protects the United States from the evasion of these just conditions precedent to the. grant. But upon issue of patent this statute has spent its force." Seymour v. Fisher, (1891) 16 Colo. 195. Determining right to a patent às against United States. This statute does not make the United States a party to the suit. If one of the contending parties should establish title, that is, the right of possession of the premises in dispute on account of a compliance with the mining laws of the United States and the laws of the state, and the rules and customs of miners, then there is no authority in the statute to find against the United States and that the party so establishing a title is entitled to a patent from the United States. The application for the patent is made to the land department and that department must ultimately determine the right to the patent. Doe v. Waterloo Min. Co., (C. C. A. 1895) 70 Fed. Rep. 462. In Burke v. Bunker Hill, etc., Min., etc., Co., (1891) 46 Fed. Rep. 647, upon the question whether a suit under section 2326, R. S., is one arising under the laws of the United States, the court said that the idea that such a suit is not only intended to determine the rights of the two parties as between themselves but also as between each of the parties and the United States, so as to determine finally whether either party has so far performed the conditions prescribed by the statute as to entitle him to pay for the mine and receive a patent from the United States, thereby making the United States substantially, though not formally, a party to the suit and entitled to have their rights determined in the national courts, is supported by this amendment. But see Connolly v. Hughes, (Colo. 1902) 71 Pac. Rep. 681. To entitle a party to judgment in his |