date of the location. Talbott v. King, 6 Mont.sions drawn from the testimony by the Land 131. See, also, 6 Mont. 76; 9 Pac. Rep. 434. 264. Issuance of a mineral patent "is prima facie evidence that a discovery of mineral was made; that the land was properly located as mineral land; that the application for patent, the notices given by the defendants [applicants] and all other steps required by the law had been regularly taken." N. P. R. R. Co. v. Cannon, 7 U. S. App. 507; Last Chance M. Co. v. Tyler M. Co., 15 U. S. App. 456. 265. "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. 266. A patent is not conclusive as to the correct boundaries, and as to the locus of the claim, but may be shown to be erroneous in the matter of description. Bell v. Skillicorn, 28 Pac. Rep. 768. 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. 272. A person claiming under a mineral location, to be entitled to the possession as against one claiming under a patent to a railroad company, must show that at date of such patent the land was known to be more valuable for mining than for agricultural purposes, and in determining the relative values for such purposes, subsequent changes cannot be considered. Hunt v. Steese, 75 Cal. 620; 17 Pac. Rep. 920. 273. A patent to a railroad company is not conclusive evidence that the land is nonmineral in character, and a party claiming under a subsequent mining patent may show that the land is mineral, and upon such showing being made his title will be quieted. Chicago Quartz M. Co. v. Oliver, 75 Cal. 194. 274. Where by the terms of a patent mineral lands are excluded from the grant, it is competent for the party claiming adversely to the patentee to show that the land in dis-pute is mineral in character, and therefore excepted from the operation of the patent. McLaughlin v. Powell, 50 Cal. 64; 10 Mor. Min. Rep. 424. 267. A mineral patent renders res judicata, so far as the Land Department is concerned, the fact that the land was known to be min. eral. Blackmore v. Reilly, 17 Pac. Rep. 72. 268. The issuance of a lode patent is con- 275. The United States will not attack its clusive proof that the claim is located on the patent, regularly issued, for fraud in its proapex of a vein. Iron Silver M. Co. v. Camp-curement, unless such fraud is very clearly bell, 17 Colo. 267; 29 Pac. Rep. 513. See S. C., shown, especially where the land has passed 135 U. S. 286. into the hands of bona fide purchasers. Butte & Boston M. Co., 21 L. D. 125. 269. In a controversy as to the ownership of the vein on the dip, issuance of patent does not prove the correctness of the Land Department records as to date of location, but this must be proved 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. 557; 9 U. S. App. 613; Kahn v. Old Tele1 graph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 345. 270. A patent passes government title to the surface and any vein or lodes beneath it not otherwise granted. Its issuance presumes a compliance with the mining laws. Kahn v. Old Telegraph M. Co., 2 Utah, 174; 11 Mor. Min. Rep. 645. 271. The Supreme Court does not interfere with the title of a patentee on an alleged mistake of fact, or from wrong conclu 276. 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. 277. Proceedings to vacate a patent for fraud in its procurement will not be recommended by the Land Department when the fraud is not clearly shown and the land has passed into the hands of a bona fide purchaser. G. T. Dickinson, 10 L. D. 449. 278. When the complaint in an action to annul a patent alleged in substance that no discovery had been made, and the evidence is conflicting, proof that the claim was considered valuable for mining purposes was held sufficient, and the patentees were not obliged to show that there was a reasonable probability of the claim becoming a source of profit. to constitute a mine within the meaning of the statute. United States v. King, 9 Mont. 75; 22 Pac. Rep. 498. 279. One suing a patentee to have him declared trustee of the legal title for him must show that he is entitled to the patent, not merely that patent erroneously issued, for that would be material only in a direct proceeding to vacate the patent. Meyendorf v. Frohner, 3 Mont. 282; 5 Mor. Min. Rep. 559. 280. The limits of a patented mining claim may be identified by location monuments when the description of the claim in the pat ent by courses and distances is found to be in correct. Cullacott v. Cash G. & S. M. Co., 8 Colo. 179; 16 Pac. Rep. 211; 15 Mor. Min. Rep. 392. 281. A location notice is proper evidence in connection with the patent to show the claim to which the patent refers. Goller v. Fett, 30 Cal. 481; 11 Mor. Min. Rep. 171. 13. Suits for Possession. (See ADVERSE, p. 297, and SUIT, p. 445.) 282. When plaintiff's ownership and right of possession are put in issue by answer, he must show affirmatively a compliance with the act of Congress and local rules and regulations, and that he had thereby made a valid location. Garfield M. & M. Co. v. Hammer, 130 U. S. 291. (See S. C., 6 Mont. 53; 8 Pac. Rep. 153.) Terrible M. Co. v. Argentine M. Co., 5 McCrary, 639. 283. 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. 284. In 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. 285. In possessory actions, proof of possession of a mining claim is prima facie evidence of title. Patchen v. Keeley, 19 Nev. 404: 14 Pac. Rep. 347; Lebanon M. Co. v. Cons. Republican Mtn. M. Co., 6 Colo. 381; Sears v. Taylor, 4 Colo. 38; Funk v. Sterrett, 59 Cal. 613; Noyes v. Black, 4 Mont. 527; 2 Pac. Rep. 769. 286. 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 his right to a patent. Wills v. Blain, 4 New Mex. 378; 20 Pac. Rep. 795. 287. In questions involving the right of possession, proof of prior occupancy, and especially when accompanied by a deed showing color of right, should not be rejected by the court. Campbell v. Rankin, 99 U. S. 261; 12 Mor. Min. Rep. 257. 288. In actions of ejectment or trespass, possession by plaintiff has always been held prima facie evidence of the legal title, and as against a mere trespasser is sufficient. Campbell v. Rankin, 99 U. S. 261; 12 Mor. Min. Rep. 257. (Citing 2 Greenl. Ev., sec. 311; Atwood v. Fricot, 17 Cal. 37; 2 Mor. Min. Rep. 305; English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217.) 289. In possessory actions, proof of possession of a mining claim is prima facie evidence of title. Patchen v. Keeley, 19 Nev. 404; 14 Pac. Rep. 347; Lebanon M. Co. v. Cons. Republican Mtn. M. Co., 6 Colo. 381; Sears v. Taylor, 4 Colo. 38; Funk v. Sterrett, 59 Cal. 613; Noyes v. Black, 4 Mont. 527; 2 Pac. Rep. 769. 14. General. 290. "The discovery by the defendant of the Dahl lode, 200 or 300 feet outside of those boundaries, does not, as observed by the court below, create any presumption of the possession of a vein or lode within those boundaries, nor, we may add, that a vein or lode existed within them." Dahl v. Raunheim, 132 U. S. 260. 291. In the absence of a contrary showing, it will be assumed that that portion of the vein on which the discovery shaft is sunk is the middle of the vein, from which surface ground on each side is to be measured. Hope M. Co., 5 C. L. O. 116. 292. It is presumed by the Land Department, in the absence of a contrary showing, that the lode extends in a straight line through the center of a surveyed claim. Bimetallic M. Co., 15 L. D. 309. 293. "A lode or vein is a body of mineral or mineral-bearing rock, within defined boundaries, in the general mass of the mountain. In this definition the elements are the body of mineral or mineral-bearing rock, and the boundaries. With either of these things established, very slight evidence may be accepted as to the existence of the other." Hyman v. Wheeler, 29 Fed. Rep. 247; 15 Mor. Min. Rep. 519. 294. A party claiming mining ground not actually possessed, and beyond the possessio pedis, must show his right thereto by constructive possession, and he can show such constructive possession only by physical works and monuments or by local mining laws and rules and compliance therewith. Roberts v. Wilson, 1 Utah, 292; 4 Mor. Min. Rep. 498. 295. It is presumed, in the absence of evidence, that parties in possession of mining claims hold them according to the rules and customs of the miners in the district. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196. which water can be brought to wash the mineral from the earth, sand or gravel with which it may be mingled; and the uses to which the land may be subjected when the claim is exhausted, may be proper subjects of consideration." United States v. Iron Silver M. Co., 128 U. S. 673. See 24 Fed. Rep. 568. 300. Co-tenants are presumed by law to own equal interests until the contrary is shown. Nippel v. Hammond, 4 Colo. 211. 301. The exclusion from entry and patent of a mining claim of conflict with another claim does not preclude the patentee from holding the excluded ground under his possessory title, and raises no presumption against such title. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 302. An applicant for a mineral patent must clearly show possessory title to the claim applied for. Montana Company, 6 L. D. 261. 303. Ex parte affidavits with no opportunity for cross-examination should not be considered in contested mining cases. France v. Harrison, 5 C. L. O. 66. 296. Proof of posting of notice of application for patent in the local land office should be furnished by the register, but if not furnished by him the claimant may submit evidence on the point. Mimbres M. Co., 8 L. D. placer, the lode discovery being some hundred 457. 304. Where a lode claim conflicts with a feet outside of the conflict, there is no pre the placer ground. Raunheim v. Dahl, 6 Mont. 167; 9 Pac. Rep. 892; 132 U. S. 260. 297. Where it is impossible to show posi-sumption of the continuation of the lode into tively that notice of application for a mineral patent remained posted in the local land office during the period of publication, the affidavits of the persons who were local officers during such period, to the effect that it was their custom to post such notices during the period of publication, may be accepted as satisfactory. Departmental decision of June 13, 1896, In re S. H. Standart. 305. "When one has discovered a lode upon the unappropriated public domain, and has, within the proper time, in good faith, performed all the subsequent acts essential to a valid location, as provided by law, he is entitled to the presumption that his lode extends throughout the full length of the claim" (as against another lode claimant). The burden of proving this is upon the one denying it. Armstrong v. Lower, 6 Colo. 581; 15 Mor. Min. Rep. 458. (Affirming 6 Colo. 393; 15 Mor. Min. Rep. 631.) Patterson v. Hitchcock, 3 Colo. 533; 5 Mor. Min. Rep. 542. 306. "Generally, when a ledge has been traced for such a distance, in a claim of this size, it would not be an unreasonable presumption that it would continue in the same direction far enough to cross the end lines of the claim." Carson City G. & S. M. Co. v. North Star M. Co., 73 Fed. Rep. 597. 307. The location of a lode claim based upon a proper discovery, and made according to law, raises the presumption that the lode 2. A hearing to determine the character of the land covered by a mineral application, and the question of compliance with the law by the applicant, may be ordered by the local land office on protest filed. Devereux V. Hunter, 11 L. D. 214. 3. A mineral entry should not be canceled on 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 hearing should be ordered by the General Land Office. Franklin L. Bush, 2 L. D. 788. 4. 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. 5. Where entry is made of a lode claim in conflict with a patented placer claim, and it appears that the title under the placer patent to the ground in conflict is vested in the lode claimant, the known existence of the lode at date of the application for the placer patent may be shown by ex parte affidavits, as there could be no opposing party to render a hearing necessary. Valley Lode, 22 L. D. 713. 6. If the owner of a lode claim within a patented town site secures a reconveyance of the conflict to the United States, he may show by affidavits the known existence of the lode at the date of the town site entry, without going to a hearing for the purpose, as there could be no other party to such hearing. Com'r to Denver Office, July 10, 1896, In re Dump Lode. 7. One desiring to apply for a mineral patent for land covered by an existing mineral application may secure its cancellation by proving abandonment of the claim applied for, at a hearing to which the applicant is a party. Moylan C. Fox, 2 L. D. 766. 8. A hearing to determine the mineral or non-mineral character of land should not be ordered in the absence of an application to enter it. Central Pacific R. R. Co., 8 L. D. 30; 9 L. D. 613. 9. A mineral application should not be received for land covered by a homestead entry, dered to determine the character of the land. but upon its tender a hearing should be or(In this case the erroneously filed application was allowed to stand, pending such a hearing.) Hooper v. Ferguson, 2 L. D. 712. 10. Upon a sufficient showing by an applicant for a lode within the limits of a patented town site, a hearing will be ordered to determine whether or not the lode was known to be valuable for mineral at date of town site entry, with the view to the recommendation of suit to vacate the town site patent to the extent of the conflict, if such issue be decided in the affirmative. Thomas J. Laney, 9 L. D. 83; Plymouth Lode, 12 L. D. 513: Protector Lode, 12 L. D. 662; Pacific Slope Lode, 12 L. D. 686; Cameron Lode, 13 L. D. 369. But 11. Modified by the South Star Lode (20 L. D. 204). See Commissioner to Denver Office, November 16, 1895, In re Antediluvian Lode, holding that, on such a hearing, if it be proved that the lode was known to be valuable at date of town site entry, patent may issue for the lode claim. 12. On a sufficient showing by the applicant for a lode claim situate in a patented 20. Where it is alleged by protest that, between the dates of application for patent and entry, a claim was abandoned and was relocated by protestant, a hearing will be ordered, and if the charge is proved the entry will be canceled. Sweeney v. Wilson, 10 L. D. 157. placer, a hearing may be ordered to deter- | Placer, 4 L. D. 314; George H. Smith, 7 L D. mine whether the lode was known at the 415. date of the placer application, with the view of recommending suit by the United States Attorney General to vacate the placer patent as to the conflict. Pikes Peak Lode, 14 L. D. 47. (Modified in South Star Lode, 20 L. D. 204.) 13. A coal contestant who offers to pay costs of a hearing in his contest against a coal entry, and upon whose showing the entry is canceled, has a preference right of filing upon the land, even though the hearing prayed was never ordered. Garner v. Mulvane, 12 L. D. 336. 14. Where a mineral entry has been allowed upon a satisfactory showing of the mineral character of the land, a hearing will not be ordered on the protest of an agricultural claimant unless it be alleged that the land was agricultural in character at date of the filing of mineral application for patent. Houghton v. McDermott, 15 L. D. 509. 15. A hearing should be ordered upon the protest of one alleging non-compliance by an entryman with the law relating to discovery, expenditures and notice of application. Weinstein v. Granite Mtn. M. Co., 14 L. D. 68. 16. A hearing should be ordered upon a duly corroborated protest alleging non-compliance with the law by an entryman. Waterloo M. Co. v. Doe, 17 L. D. 111. 17. Where, after publication of notice of application for patent and before entry, a mining claim is relocated by a stranger for failure on the 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. 18. If testimony taken in one case is by stipulation to be considered in another, a certified copy must be filed in the second case. Fall v. Taylor, 13 L. D. 140. (Citing Davidson v. Parkhurst, 3 L. D. 140.) 21. A hearing may not be ordered on a protest against a mineral application during the pendency of an adverse suit against the applicant. Swaim v. Craven, 12 L. D. 294. 22. An order of the Commissioner directing a hearing is a discretionary action and an appeal will not lie therefrom. Bailey v. Olson, 2 L. D. 40; Florida Railway & Navigation Co. v. Miller, 3 L. D. 324; Heitkamp v. Halvorson, 3 L. D. 530; James H. Murray, 6 L. D. 124; Smalley v. Hawbilts, 8 L. D. 372; Reeves v. Emblen, 8 L. D. 444; Samuel J. Bogart, 9 L. D. 217. 23. The refusal to order a hearing, when it amounts to a denial of a right claimed, is an order from which an appeal will lie. Jackson v. McKeever, 3 L. D. 516; Turner v. Robinson, 3 L. D. 562; Henry C. Putnam, 5 L. D. 22; James H. Murray, 6 L. D. 124; Ulitalo v. Kline, 9 L. D. 377; Anderson v. Amador & Sacramento Canal Co., 10 L. D. 572; Frary v. Frary, 13 L. D. 478; Cameron v. McDougal, 15 L. D. 243; Spratt v. Edwards, 15 L. D. 290; Gray v. Whitehouse, 15 L. D. 352. 24. The doctrine of res judicata applies to the question of the character of the land only to the date of the hearing had. Zadig v. Central Pacific R. R. Co., 20 L. D. 26; Barnstetter v. Central Pacific R. R. Co., 21 L. D. 464. 25. A hearing will be allowed for the submission of evidence explanatory of a seeming discrepancy between the boundaries of a claim as located and as shown by the survey thereof. Emma Lode, 7 L. D. 169. 26. Where land returned as mineral is decided upon a hearing had to be non-mineral, the burden thereafter is upon one alleging its mineral character to show it as a present fact. Kane v. Devine, 7 L. D. 532. 19. It is within the discretion of the Com- 27. Where, on testimony submitted at a missioner to order a hearing to ascertain hearing, it is finally decided that land is nonwhether or not an applicant has complied mineral in character, a hearing will not be with the law, and to determine the character ordered on the protest of another claimant of the land, notwithstanding the fact that who sets up nothing not considered in the the applicant has secured a favorable judg- first contest. Departmental decision of June ment as defendant in an adverse suit. Alice | 18, 1896, In re Spitzler v. Koch. |