194. A. enters into a contract with B., his co-tenant, who promises to do annual assessment work. A.'s interest is forfeited if work is not done; the claim becomes subject to relocation, and a valid relocation may be made by B. A.'s remedy is an action for breach of contract, or to establish and enforce a trust in the claim as relocated. Saunders v. Mackey, 5 Mont. 523; 6 Pac. Rep. 361. 195. A preference right to purchase coal land depends upon priority of possession and improvement, followed by proper filing and development. Bullard v. Flanagan, 11 L. D. 515. 196. A coal declaratory statement, which section 2328, United States Revised Statutes, provides may be filed by "any person or association of persons, severally qualified as above provided, who have opened and improved or shall hereafter open and improve any coal mine, or mines upon the public lands, and shall be in actual possession of the same," may also be filed by one in possession who has purchased the possessory right and improvements of another. Swain v. Kearney, 22 L. D. 306. 197. On the relinquishment of a coal declaratory statement, the improvements made by the declarant inure to the benefit of one asserting a valid adverse claim to the land under the coal land law at the date of such relinquishment. Ouimette v. O'Connor, 22 L. D. 538. no work to have been done on the claim, and if the party denying the forfeiture relies on work done outside of the claim, it devolves upon him to show such work to have been done for the benefit of the claim. Hall v. Kearney, 18 Colo. 505; 33 Pac. Rep. 373. 201. The fact that the claimant has not paid for labor done on his claim is immaterial if it was done at his instance. Lock hart v. Rollins, 2 Idaho, 503; 21 Pac. Rep. 413; Coleman v. Curtis, 12 Mont. 301; 30 Pac. Rep. 266. 202. Applications for patent require the preliminary showing of compliance with the expenditure requirement of section 2324, United States Revised Statutes, or resumption of work so as to prevent relocation for abandonment. Good Return M. Co., 4 L. D. 221. 203. Before making a mineral entry the claimant must show performance of assessment work on his claim or resumption of work thereon. Circular, Dec. 14, 1885, 4 L. D. 374. 204. At the date of filing an application for mineral patent, the claimant must show either that assessment work has been done for the pending year, or that work has been resumed on the claim. John Kinkaid, 5 L. D. 25. 205. Proof of annual work or resumption of work must be furnished by applicants. Circular, May 21, 1889, 8 L. D. 516. 198. Where, before the survey of the land, 206. Where a mineral entry was allowed a coal claimant locates a claim in his indion insufficient evidence of compliance with vidual capacity and another adjoining claim the law in the matter of expenditure upon as agent for a company, and it is shown by the claim, supplemental evidence of complithe government survey that the improve-ance with the law may be submitted in the ments made by said company are upon land absence of a protest or adverse claim. James claimed by the individual, such improve- D. Rankin, 7 L. D. 411. ments inure to the benefit of his claim. Curtis v. Songer, 22 L. D. 11. 199. The final decision, under judicial proceedings, that the claimant is not entitled to any credit for work done on the claim, renders it necessary that the supplementary evidence should clearly show that the value of the improvements or labor done upon or for the development of the claim since the date of said proceedings is not less than $500. James D. Rankin, 7 L. D. 411. 200. Although the burden of proving forfeiture is upon one relying upon the same, he has made out a prima facie case by showing 207. The fact that a part of a mining lo cation on which were situate the improvements was, after location, patented to an agricultural claimant, does not render the location invalid, at least as to a subsequent locator not claiming under the agricultural patentee. Richards v. Wolfing, 98 Cal. 195; 32 Pac. Rep. 971. 208. Land which is known as a present fact to contain mineral in such quantities as will justify expenditure in working it is mineral land within the meaning of the law. Departmental decision of March 27, 1896, In re Hull v. Livesay. 209. In an action to recover possession of a mining claim, plaintiff must prove some title superior to that of defendant by a preponderance of evidence, but need not prove right to a patent by requisite expenditures. Wills v. Blain, 4 New Mex. 378; 20 Pac. Rep. 795. 210. Where a mining claim is located upon an Indian reservation and the locator is in possession at the date the reservation is thrown open, "with the requisite discovery, with the surface boundaries sufficiently marked, with the notice of location posted, and with a disclosed vein of ore, he could, by adopting what had been done, causing a proper record to be made, and performing the amount of labor or making the improvement necessary to hold the claim, date his rights from that day; and that such location and labor and improvements would give him the right of possession." Noonan v. Caledonia M. Co., 121 U. S. 393. (Affirming 3 Dak. 189; 14 N. W. Rep. 426.) ENTRY. I. THE STATUTE. II. REGULATIONS. III. DECISIONS. I. THE STATUTE. (See sec. 2325, U. S. Rev. Stat., p. 137.) II. REGULATIONS. 42. Upon the filing of this affidavit the register will, if no adverse claim was filed in his office during the period of publication, permit the claimant to pay for the land according to the area given in the plat and field notes of survey aforesaid, at the rate of five dollars for each acre and five dollars for each fractional part of an acre, the receiver issuing the usual duplicate receipt therefor. The claimant will also make a sworn statement of all charges and fees paid by him for publication and surveys, together with all fees and money paid the register and receiver of the land office; after which the whole matter will be forwarded to the Commissioner of the General Land Office and a patent issued thereon if found regular. 44. The consecutive series of numbers of mineral entries must be continued, whether the same are of lode or placer claims or mill sites. 93. A party who is not an applicant for pat ent under section 2325, Revised Statutes, or the assignee of such applicant, is not entitled to make entry under such section, and in no case will the name of such party be inserted in the certificate of entry. This regulation has no reference to proceedings under section 2326. 94. Any party applying to make entry as trustee must disclose fully the nature of the trust and the name of the cestui que trust; and such trustee, as well as the beneficiaries, must furnish satisfactory proof of citizenship; and the names of beneficiaries, as well as that of the trustee, must be inserted in the final certificate of entry. 95. No entry will be allowed until the register has satisfied himself, by a careful examination, that proper proofs have been filed upon all the points indicated in official regucient bona fide compliance with the laws and lations in force, and that they show a suffisuch regulations. III. DECISIONS. 1. "The miner having located his claim, is to be treated as an express licensee of the United States, and independent of a purchase from the government of his mining claim, he has, upon compliance with the terms of the act, a right to appropriate the minerals therein contained. A title in fee by patent is offered him, which he may at his pleasure accept or reject." There is no time prescribed within which he shall apply for a patent. Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282. 2. The locator of a mining claim need not purchase from the United States until he so wishes, but may continue to hold under his possessory title so long as he complies with the law in the matter of annual expenditures upon the claim. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183; Chapman v. Toy Long, 4 Sawy. 28; 1 Mor. Min. Rep. 497; United States v. Nelson, 5 Sawy. 68; 14 Mor. Min. Rep. 381; Black v. Elkhorn M. Co., 52 Fed. Rep. 859; Smith v. Van Clief, 6 C. L. O. 2. 3. After a legal entry of public land whereby the entryman becomes entitled to a patent, he holds the equitable title, and the United States thereafter holds the naked legal title in trust for him until patent issues. Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210; Hughes v. United States, 4 Wall. 232; Wirth v. Branson, 98 U. S. 118; Deffeback v. Hawke, 115 U. S. 392; Cornelius v. Kessel, 128 U. S. 456; Dahl v. Raunheim, 132 U. S. 260; Benson M. & Sm. Co. v. Alta M. & Sm. Co., 145 U. S. 428; Bigelow v. Chatterton, 10 U. S. App. 267; Union M, & M. Co. v. Danberg, 2 Sawy. 450; Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348; Hamilton v. Southern Nevada M. Co., 13 Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min. Rep. 314; Amador-Medean G. M. Co. v. South Spring Hill G. M. Co., 13 Sawy. 523; Astrom v. Hammond, 3 McLean, 107; Carroll v. Perry, 4 McLean, 26; United States v. Freyberg, 32 Fed. Rep. 195; Jones v. United States, 35 Fed. Rep. 561; Montgomery v. United States, 36 Fed. Rep. 4; Gwynne v. Niswanger, 15 Ohio, 368; People v. Shearer, 30 Cal. 648; Ross v. Supervisors, 12 Wis. 38; Deno v. Griffin, 20 Nev. 249; 20 Pac. Rep. 308; Goodlet v. Smithson, 5 Port. (Ala.) 246. 4. A legal entry of public land vests the equitable title thereto in the entryman, the United States thereafter holding the legal title in trust for the entryman until a patent issues, and this right cannot be defeated by an order of the Land Department, issued without warrant of law, canceling the entry. Cornelius v. Kessel, 128 U. S. 456. 5. The issuance of the certificate of purchase on payment for the land to the United States (making of an entry) vests equitable title in the entryman. The patent when is sued relates back to the date of the entry upon which it is based. Bagnell v. Broderick, 13 Pet. 450; Gibson v. Choteau, 13 Wall. 93; Shepley v. Cowan, 91 U. S. 330; Heydenfeldt v. Daney G. & S. M. Co., 93 U. S. 634; 13 Mor. Min. Rep. 204; 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; Deffeback v. Hawke, 115 U. S. 392; Astrom v. Hammond, 2 McLean, 107; Hayner v. Stanley, 8 Sawy. 225; Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348. 6. Patent relates back to date of entry. Aurora Hill Cons. M. Co. v. 85 M. Co., 12 Sawy. 355; 35 Fed. Rep. 515; 15 Mor. Min. Rep. 581; Coleman v. Peshtigo Lumber Co., 30 Fed. Rep. 317; Blackley v. Coles, 6 Colo. 350; Poire v. Wells, 6 Colo. 406; City of Denver v. Mullen, 7 Colo. 345; Omaha & Grant Sm. & Red. Co. v. Tabor, 13 Colo. 41; 21 Pac. Rep. 925; Struby-Esterbrook Co. v. Davis, 18 Colo. 93. 7. After entry land may be taxed by the State. Alta M. & Sm. Co. v. Benson M. & Sm. Co., 16 Pac. Rep. 565; Courchainer v. Bullion M. Co., 4 Nev. 374; Brown v. Warren, 16 Nev. 229; Deno v. Griffin, 20 Nev. 249; 20 Pac. Rep. 308; F. P. Harrison, 2 L. D. 767. 8. When, between the dates of making mineral entry and issuance of patent, the entryman sells the claim, the grantee holds under the patent, which relates back to the date of entry. Brown v. Warren, 16 Nev. 229. the certificate issued, the purchaser at once 9. When the purchase is completed and acquires a vested right, of which he cannot be subsequently deprived, and the land ceases to be a part of the public domain. There is a part performance of the contract, which entitles the purchaser to a specific performance of the whole, without further action on his part. F. P. Harrison, 2 L. D. 767. 10. 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 Limitations of Oregon, which is intended to apply to lands still subject to governmental disposition. Rader v. Allen, 27 Oreg. 344; 41 Pac. Rep. 154. 11. A certificate of mineral entry may not be collaterally assailed any more than can be a patent. Hamilton v. Southern Nevada G. & S. M. Co., 13 Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min. Rep. 314. 12. It is a general rule of law that a certificate of entry, like a patent, is conclusive of legal title; but this rule will not be followed where entry was made by the defendant in an adverse suit after the dismissal of such suit, where the suit was thereafter reinstated, and the cause will be tried as though it never had been dismissed. McEvoy v. Hyman, 25 Fed. Rep. 539; 15 Mor. Min. Rep. 300. 13. In Federal courts a certificate of entry of land may not be considered as evidence of the holder's legal title, as the making of entry vests only equitable title in the entryman. Langdon v. Sherwood, 124 U. S. 74. 14. The signature of the Register must be first proved in order to admit in evidence a Register's final certificate of entry. Jackson v. McMurray, 4 Colo. 76; 12 Mor. Min. Rep. 164. 15. A mineral entry, so long as it remains uncanceled, confers the same right as a United States patent, being prima facie evidence that the entryman is entitled to a pat ent. Aurora Hill Cons. M. Co. v. 85 M. Co., 12 | Forbes v. Driscoll, 31 N. W. Rep. 633; VantonSawy. 355; 34 Fed. Rep. 515: 15 Mor. Min. Rep. geran v. Hefferman, 38 N. W. Rep. 52; Par581; Hamilton v. Southern Nevada M. Co., 13 sons v. Venzke, 4 N. Dak. 452; 61 N. W. Rep. Sawy. 113; 33 Fed. Rep. 566; Benson M. & Sm. 1036.) Co. v. Alta M. & Sm. Co., 145 U. S. 428; Last Chance M. Co. v. Tyler M. Co., 61 Fed. Rep. 557; 15 U. S. App. 456. 16. The cancellation of a mineral entry does not in itself render the ground subject to relocation, as the cancellation has no effect on claimant's possessory right. McGowan v. Alps Cons. M. Co., 23 L. D. 113. 17. A relocation of a mining claim embraced in a subsisting mineral entry will not confer any rights upon the relocator. F. P. Harrison, 2 L. D. 767; Good Return M. Co., 4 L. D. 221; Smuggler M. Co. v. Trueworthy Lode, 19 L. D. 356. 18. A location of land covered by a mineral entry is void, notwithstanding the alienage of the entryman, the entry while it remains of record being a segregation of the land; and such a location would not give the locator even the right of appeal from a decision dismissing his protest. Leary v. Manuel, 12 L. D. 345. 19. The effect of an entry as regards third parties is not altered by reason of a defect in the survey which caused a temporary suspension of the entry by the Land Department. Last Chance M. Co. v. Tyler M. Co., 61 Fed. Rep. 557; 15 U. S. App. 456; 157 U. S. 683. 20. 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. (Citing 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. 373; Steel v. St. Louis Sm. Co., 106 U. S. 447; Hestres v. Brennan, 50 Cal. 211: Randall v. Edert, 7 Minn. 450; Gray v. Stockton, 8 Minn. 529; Ferry v. Street, 11 Pac. Rep. 571; Darcy v. McCarthy, 12 Pac. Rep. 104; Pierce v. Frace, 26 Pac. Rep. 192; Jones v. Mayers, 2 Idaho, 724; 26 Pac. Rep. 215; Judd v. Randall, 29 N. W. Rep. 589; 21. 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. 22. 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. 23. 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. 24. A purchaser of land after entry, but before issuance of patent, is simply the assignee of an equitable interest, and as such takes with notice of all defects in the title purchased. Hence he cannot be considered an innocent purchaser, in a legal sense. R. M. Chrisinger, 4 L. D. 347; William E. McIntyre, 6 L. D. 503; C. A. Kibling, 7 L. D. 327; Murphy v. Sanford, 11 L. D. 123; United States v. Miller, 14 L. D. 617. 25. The Secretary of the Interior exercises a supervisory authority over the Commissioner of the General Land Office, who, in turn, exercises the same authority over the local land officers. A purchaser of land after entry and before the issuance of patent takes subject to the re-examination of the entry and its possible cancellation. Sweigart v. Walker, 30 Pac. Rep. 162. 26. Before an entry is canceled, the claimant must be given his day in court by allowing him to show cause why the entry should not be canceled. Departmental decision, April 16, 1894, In re Southgate v. Po Ka Tah Kum; Senator Mill Site, 7 L. D. 475; Neal v. McMullen, 9 L. D. 522; Vanderbilt Lode, 16 L. D. 105. 27. A Commissioner's order canceling an entry on the contest to which the entryman had not been cited as required by Departmental practice is a nullity. Risdon v. Davenport, 4 S. Dak. 555. 28. A mineral entry canceled without proper notice to the entryman will be reinstated notwithstanding the intervention of an adverse claim by relocation of the ground after the cancellation. McGowan v. Alps Cons. M. Co., 23 L. D. 113. 29. The cancellation of an entry without service on the claimant by the Land Department is void. Young v. Hanson, 64 N. W. Rep. 654. 37. A mineral entry of lands covered by a cash entry, though irregularly allowed, may be allowed to stand where the cash entry has been canceled. Dobbs Placer, 1 L. D. 565. 38. 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 30. A mineral entry should not be canceled upon the report of a special agent that claimant has not complied with the law and that the mining claim is valueless as such, but a bearing should be ordered by the Gen-entry will be canceled and the parties left to eral Land Office. Franklin L. Bush, 2 L. D. 788. 31. A decision of the local office "that the entry is held for cancellation subject to the right of further appeal," is not, when offered in evidence upon trial of adverse suit, open to the objection that it does not cancel, but merely recommends cancellation. The effect of a decision of this kind is not destroyed by the use of such language. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep. 505. 32. Where a mineral entry is allowed, and it is shown at a hearing that the plat and the notice of application for patent were hidden upon the claim instead of being posted in a conspicuous place thereon, the entry will be canceled without prejudice to claimant's right to begin proceedings de novo to acquire patent. Pratt v. Avery, 7 L. D. 554. 33. The allowance of a mineral entry for land covered by an existing mineral entry is erroneous, but the second may be allowed to stand if the prior entry has been canceled for failure to give proper notice (and, apparently, the first entryman will be given no opportunity to adverse the application of the second entryman). Moss Rose Lode, 11 L D. 120. 34. In requiring an amended survey of an entered mining claim, the General Land Office should direct that claimant be allowed a certain time within which to take proper steps, under penalty of cancellation of the entry. Vanderbilt Lode, 16 L. D. 105. litigate their conflicting claims in court. The Land Department will not pass upon the vaLittle lidity of the relocation in such a case. Pauline Lode v. Leadville Lode, 7 L. D. 506. 39. A mineral entry should not be canceled because the entryman claims by transfer from a local land officer by whom the claim was located, where the entryman and the officer acted in good faith. Rust and Criteser, 2 L. D. 754. 40. A coal entry should not be canceled for failure to furnish proof not required by the Land Department regulations in force at date of the entry. Durango Land & Coal Co., 18 L. D. 382. 41. If the General Land Office holds an entry for cancellation on insufficient grounds and cancels it on failure of claimant to appeal, the rights of the entryman are lost if another right attaches after cancellation. Roberts v. Gebhart, 104 Cal. 67. 42. The cancellation of a mineral entry has for its effect simply to set aside all that has been done by the claimant toward the acquisition of a patent and relegates him to his possessory title. John R. Magruder, 1 L. D. 526. 43. A judgment canceling an entry takes effect on date of rendition by the Secretary of the Interior or by the Commissioner of the General Land Office. John H. Reed, 6 L. D. 563; Barclay v. State, 6 L. D. 699; Anderson V. Railway Co., 7 L. D. 163; Dahlstrom v. St. P. 35. A mineral entry should not be canetc. R. R. Co., 12 L. D. 59; Perrott v. Connick, celed for failure to comply with a require-13 L. D. 598; Lough v. Ogden, 17 L. D. 171; ment of the land office unless the record McDonald v. Hartman, 19 L. D. 547; Oettel v. shows notice of such requirement to have Dufur, 22 L. D. 77. been given the entryman. San Juan Placer, 12 L. D. 125. 36. A mineral entry will be canceled when it appears that the claim is not known to be valuable for mineral and is not taken for mining purposes. Trickey Placer, 7 L. D. 52 44. The entryman should be notified of the order of cancellation of his entry. San Juan Placer, 12 L. D. 125. 45. A canceled entry may be reinstated if the owners at date of cancellation were not notified of requirements of the land office. |