4. Patent, Vacation of. 6. Secretary of the Interior. 28. "Where one attacks an existing patent | II. DECISIONS - continued. on allegations of fraud, with the purpose of himself entering the land on vacation of the patent, and a hearing is ordered to ascertain the facts, he should make such a prima facie showing at his own expense as will enable this Department to decide whether will request suit to vacate the patent." Alexander Moore, 2 L. D. 761; Bullock v. Central Pacific R. R. Co., 11 L. D. 590. 29. A petition addressed to the General Land Office, asking that a suit be brought to vacate a patent, should be forwarded to the Department with a recommendation as to the advisability of ordering a hearing preliminary to the recommendation of such suit, as 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. 30. A judgment rendered upon an adverse suit, awarding the land involved to the applicant, does not preclude an investigation by the Land Department as to claimant's compliance with the law, and a rejection of the application for patent if non-compliance is found. George H. Smith (Bull of the Woods Mill Site), 7 L. D. 415. 31. A rehearing may be ordered where the first contest was dismissed through the fraudulent conduct of petitioner's attorney. A. M. Moses, 3 L. D. 57. 32. A rehearing will not be ordered because of newly-discovered evidence if such evidence might have been known and presented at the trial of the case. Long Jim v. Robinson, 17 L. D. 348. 33. Hearings under paragraphs 109 et seq. of the Mining Regulations should be held only when it becomes the duty of the local land office to allow final entry of the land. Com'r to Helena Office, Oct. 5, 1892, In re Samuel A. Robertson, and Feb. 3, 1894, In re William McMaster. LAND DEPARTMENT. I. REGULATIONS. II. DECISIONS. 1. Scope of Authority - Jurisdiction. 3. Patent. 7. Commissioner of the General Land Office. 8. Register and Receiver. 9. Surveyor General — Deputy Mineral Surveyor. 10. General. I. REGULATIONS. 104. The fees payable to the register and receiver for filing and acting upon applicato each officer, to be paid by the applicant for tions for mineral-land patents are five dollars patent at the time of filing, and the like sum of five dollars is payable to each officer by an adverse claimant at the time of filing his adverse claim. Sec. 2238, R. S., paragraph 9. 105. All fees or charges under this law may be paid in United States currency. 106. The register and receiver will, at the close of each month, forward to this office an abstract of mining applications filed, and a register of receipts, accompanied with an abstract of mineral lands sold, and an abstract of adverse claims filed. 107. The fees and purchase money received by registers and receivers must be placed to the credit of the United States in the receiver's monthly and quarterly account, charging up in the disbursing account the sums to which the register and receiver may be respectively entitled as fees and commissions, with limitations in regard to the legal maxi mum. II. DECISIONS. 1. Scope of Authority — Jurisdiction. 1. The decisions of the Land Department on questions of fact within its jurisdiction (in the absence of fraud, mistake or imposition, other than error in judgment) are conclusive. Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 330: Moore v. Robbins, 96 U. S. 530; Quinby v. Conlan, 104 U. S. 420; 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; Lee v. Johnson, 116 U. S. 48: Aiken v. Ferry, 6 Sawy. 79; Aurora Hill Cons. M. Co. v. 85 M. Co.. 12 Sawy. 355; 34 Fed. Rep. 515; 15 Mor. Min. Rep. 581; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434. 2. Decisions of the Land Department, within the scope of its jurisdiction, are not reviewable in actions at law. French v. Fyan, 93 U. S. 169; Vance v. Burbank, 101 U. S. 514; Quinby v. Conlan, 104 U. S. 420; 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; N. P. R. R. Co. v. Cannon, 7 U. S. App. 507; Aurora Hill Cons. M. Co. v. 85 M. Co., 12 Sawy. 355; 34 Fed. Rep. 515; 15 Mor. | Min. Rep. 581; Gale v. Best, 78 Cal. 235. 3. Decisions of the Land Department may be reviewed as to questions of law involved. Aiken v. Ferry, 6 Sawy. 79. 4. Decisions of the Land Department upon legal points may be reviewed by the courts on direct proceedings for their correction or annulment; but this will not be done collaterally. Johnson v. Towsley, 13 Wall. 72; Vance v. Burbank, 101 U. S. 514; 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; Baldwin v. Stark, 107 U. S. 463; Lee v. Johnson, 116 U. S. 48; Aurora Hill Cons. M. 10. While the general rule is that the decisions by the Land Department on questions of fact preliminary to the issuance of a patent are conclusive after the issuance of patent, "Where each party has a patent 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, we think it is competent, in any judicial proceeding where this. question of superiority of title arises, to establish it by proof of those facts." Iron Silver M. Co. v. Campbell, 135 U. S. 286. (Reversing 17 Colo. 267; 29 Pac. Rep. 513.) 11. "It has been often said by this court that the land officers are a special tribunal of of the facts before them is conclusive. And a quasi judicial character, and their decision we are not now controverting the principle that where a contest between individuals, for Co. v. 85 M. Co., 12 Sawy. 355; 34 Fed. Rep. the right to a patent for public lands, has 515; 15 Mor. Min. Rep. 581. 5. A finding of the Land Department of fact or mixed law and fact on a question within its jurisdiction, is conclusive in an action at law. Jeffords v. Hine, 11 Pac. Rep. 351; 15 Mor. Min. Rep. 575. 6. The courts are not bound by a decision of the Land Department on a question of law. Wisconsin Cent. R. R. Co. v. Forsythe, 158 U. S. 46. 7. Decisions of the Land Department may be inquired into when final if fraud, accident or mistake is alleged. Comegys v. Vasse, 1 Pet. 212; Cunningham v. Ashlet, 14 How. 377; Barnard's Heirs v. Ashley's Heirs, 18 How. 43; Garland v. Wynn, 20 How. 8; Lytle v. State of Arkansas, 22 How. 192; Lindsey v. Hawes, 2 Black, 554. 8. Decisions of the Land Department may be inquired into to see if a patentee should be declared trustee for another. Johnson v. Towsley, 13 Wall. 72; Warren v. Van Brunt, 19 Wall. 646. 9. While decisions of the Land Department on questions of law are not binding upon the courts, they are entitled to great respect, and ought not to be overruled without cogent reasons. United States v. Moore, 95 U. S. 760; United States v. Burlington, etc. R. R. Co., 98 U. S. 334; Kansas Pacific R. R. Co. v. Atchison R. R. Co., 112 U. S. 414; Brown v. United States, 113 U. S. 568; Hastings & Dakota R. R. Co. v. Whitney, 132 U. S. 357. been brought before those officers, and both parties have been represented and had a fair hearing, that those parties are concluded as to all the facts thus in issue by the decision of the officers." United States v. Minor, 114 U. S. 233. 12. "It is the established doctrine expressed in numerous decisions of this court, that whenever Congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the Land Department to issue a patent for such land upon ascertainment of certain facts, that Department has jurisdiction to inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition or mistake, its determination is conclusive against collateral attack." Barden v. N. P. R. R. Co., 154 U. S. 288. 13. The officers of the Land Department "exercise a judicial function, and therefore it has been held in various instances by this court that their judgment as to matters of fact properly determinable by them is conclusive." Barden v. N. P. R. R. Co., 154 U. S. 288; Carr v. Fife, 156 U. S. 494; Catholic Bishop of Nesqually v. Gibbon, 158 U. S. 155. 14. A decision of 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. 15. A final decision of the Land Depart- | question as to the priority of such right. ment, holding a tract to be non-mineral, is Bright v. Elkhorn M. Co., 8 L. D. 122. conclusive up to date of hearing; but it does not preclude further inquiry based on subsequent development. Stinchfield v. Pierce, 19 L. D. 12. 16. The act of February 26, 1895 (28 Stat. 683, Idaho-Montana Act), does not suspend the jurisdiction of the Land Department to pass upon the character of land when necessary. Sweeney v. N. P. R. R. Co., 21 L. D. 65. 17. The authority of a United States corporation to take or hold mineral land may not be questioned by the Land Department. Rose Nos. 1 and 2 Lodes, 22 L. D. 83. Contra, Com'r to Leadville Office, Oct. 29, 1891, In re Buena Vista Electric Light Co. 18. A properly authenticated certificate of the existence of a corporation, applicant for a mineral patent, is sufficient proof of citizenship under the statute. Rose Nos. 1 and 2 Lodes, 22 L. D. 83. 2. Adverse Claims. (See ADVERSE, p. 284.) 19. Decisions of the Land Department are not binding on the courts in actions for the settlement of adverse claims brought under section 2326, United States Revised Statutes. Hartman v. Smith, 7 Mont. 19; 14 Pac. Rep. 648. 20. In an action upon an adverse claim, where plaintiffs, as evidence of their title, had introduced the receiver's receipt for the entry thereof, it is admissible for the defendants to prove by decisions of the Land Department that the receipt had been canceled and set aside on the protest against the issuance of patent. Murray v. Polglase, 17 Mont. 455; 43 Pac. Rep. 505. 21. 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 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. 22. The Land Department has no jurisdic tion to determine or pass upon controversies between adverse claimants as to the right of possession of a mining claim, or upon any 23. "The Executive Department has no jurisdiction of adverse mineral claims, which, under the law, are adjudicated exclusively by the courts." Waterhouse v. Scott, 13 L. D. 718. 24. If an adverse claim is in proper form and is filed in time, the merits thereof is not a question for the Land Department, which under the law is bound to suspend action that the controversy may be settled in court. Valentine Gold Qtz. Mine, Sickel's Min. Dec. 287; King of the West Lode, Sickel's Min. Dec. 297; Ovens v. Stephens, 2 L. D. 699. 25. The merits of an adverse claim properly presented is not the proper subject of consideration by the Land Department, even though, on the face of the adverse filed in the local office, the adverse claimant appears to have no case. Bay State G. M. Co. v. Trevillion, 10 L. D. 194. 26. The sufficiency of an adverse claim filed in the land office may not be questioned by a court on adverse suit. Quigley v. Gillett, 101 Cal. 462; 35 Pac. Rep. 1040. 27. The merits of an adverse claim may not be inquired into by the Land Department, the assertion thereof in proper manner and institution of suit constituting a bar to any proceedings by the Land Department. (Sec. 2326, U. S. Rev. Stat.) Robinson v. Mayger, 1 L. D. 538. 28. "If no adverse claim is filed during the required period of publication, it is assumed that the applicant is entitled to patent, and no agreement of parties can control this statutory provision. If either party claims a nonfulfillment of such agreement by the other, the remedy must be found in the courts, and not before your office or this Department." Gustavus Hagland, 1 L. D. 591. 29. To be recognized by the Land Department under the provisions of section 2326, United States Revised Statutes, a suit must be based upon an adverse claim filed during the sixty days of publication of notice of application for patent, and must be commenced within thirty days after the filing of such adverse. Nettie Lode v. Texas Lode, 14 L. D.. 180. 30. Where an adverse claim is filed, and suit instituted thereon, all proceeding before the Land Department must be stayed, and the Land Department is not reinvested with jurisdiction by the filing by the applicant of a relinquishment of the ground covered by the adverse claim as presented before the Department, when it appears that the complaint filed in court has been so amended as to cover more land than shown by the adverse plat filed in the land office. Jamie Lee Lode v. Little Forepaugh Lode, 11 L. D. 391. 31. The applicant for patent cannot waive an adverse claim by excluding from his application the area covered by the adverse claim, and so vest the Land Department with jurisdiction to patent the remaining portion of his claim. The adverse claim can be waived only by one setting it up. But if the Land Department does so proceed there is no cause of complaint by the adverse claimant, and it is only a question between the Land Department and the applicant for patent. Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683. (Reversing 7 U. S. App. 463; 54 Fed. Rep. 284; 9 U. S. App. 613; 61 Fed. Rep. 557.) 32. Where an adverse claim is filed against an application for patent, the applicant may (1) suspend proceedings before the Land Department and litigate with the adverse claimant, (2) relinquish the ground in conflict from his application (litigating therefor) and take patent for the remainder of his claim, or (3) dismiss his application for patent in its entirety and continue to claim under his possessory title. Branagan v. Dulaney, 2 L. D. 744. 33. The question of whether or not an adverse suit has been prosecuted with reasonable diligence is one to be determined, not by the Land Department, but by the court having jurisdiction over the suit. Rose v. Richmond M. Co., 17 Nev. 25; 2 Colo. Law Rep. 7; 27 Pac. Rep. 1105. See S. C., 114 U. S. 576. 34. While a suit brought under the provisions of section 2326, United States Revised Statutes, is pending undetermined in court, it is not for the Land Department to decide whether or not suit has been prosecuted with reasonable diligence, and a patent issued by the Department during the pendency of such a suit involving the land, is issued without authority of law, is void, and may be attacked collaterally in a court of law. Richmond M. Co. v. Rose, 114 U. S. 576. 35. An adverse claimant who fails to institute suit thereby waives the right to set up before the Land Department matters properly determinable in court on an adverse suit. Southwestern M. Co. v. Gettysburg Lode, 4 L. D. 271. 36. A difference in the name (apparently through clerical error) of the adverse claimant as presented in the adverse claim filed in the local office, and as shown by proceedings in court, will not warrant the dismissal of the adverse by the Land Department. Bay State G. M. Co. v. Trevillion, 10 L. D. 194. 37. Although an adverse claim was defective in that it was sworn to (before the act of April 26, 1882, 22 Stat. 49) by the agent of the adverse claimants, action will be suspended by the Land Department if suit has been instituted thereon. Samuel McMaster, 2 L. D. 706. 38. Where two co-owners of a mining claim file an adverse claim against an application for patent, and institute separate suits thereon, in different courts, the Land Department will not allow entry upon the application, inclusive of the conflict, during the pendency of either of said suits. Black Queen Lode v. Excelsior No. 1 Lode, 22 L. D. 343. 39. No judgment of a court rendered after the filing of application will be considered binding upon the Land Department, save one rendered under the provisions of section 2326, United States Revised Statutes. Nichols v. Becker, 11 L. D. 8. 40. The Land Department will not undertake to settle controversies as to the rights of disputing mining claimants. Com'r to John Nutcher, Aug. 22, 1893. 41. A dispute between mining claimants, one claiming the land as a lode claim and the other as a placer claim, must be settled in court, as the determination of such controversies is not within the jurisdiction of the Land Department. Com'r to C. Dodson, April 10, 1891. 42. Where a placer patentee has filed an adverse claim against the application for patent for a lode claim within the placer and has begun suit thereon, the Land Department will take no action, but will leave the parties to secure a determination of their rights in court. Iron Silver M. Co. v. Mike & Starr M. Co., 6 L. D. 533. 43. A judgment rendered on an adverse | United States v. Schurz, 102 U. S. 378; Steel suit awarding the surface of the ground involved to a placer claimant, and lodes therein contained to lode claimants, is without authority of law, and will not be followed by the Land Department, which will not issue a patent for a placer claim containing known lodes belonging to one other than the placer claimant. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641. 44. The object and purpose of an action under section 2326, United States Revised Statutes, is not only to settle the controversy as between the claimants, but for the information of the officers of the Land Department, and to recover, either party must show by proof the right to a patent. An admission of material facts by the opposing party will not avail, but the facts must be found. Rosenthal v. Ives, 2 Idaho, 244; 12 Pac. Rep. 904; 15 Mor. Min. Rep. 324. 45. The judgment of a court to the effect that lands are mineral does not bind the Land Department, whose duty it is to determine for itself the character of the land to be disposed of. Barden v. N. P. R. R. Co., 19 L. D. 188. 46. The judgment rendered by the court upon an adverse suit is conclusive upon the Land Department only as to the right of possession, and does not relieve the Department from its duty of requiring proof of compliance with law by the adverse claimant. Alice Placer, 4 L. D. 314. 47. A judgment rendered upon an adverse suit awarding the land involved to the applicant does not preclude an investigation by the Land Department as to claimant's compliance with the law and a rejection of the application for patent if non-compliance is found. George H. Smith (Bull of the Woods Mill Site), 7 L. D. 415. 48. A judgment on an adverse suit is not conclusive upon the United States as to the character of the land involved, or as to the parties' compliance with law. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641. 3. Patent. (See PATENT, p. 266.) 49. The issuance of a patent for public land (even though erroneously) terminates the jurisdiction of the Land Department. v. St. Louis Sm. Co., 106 U. S. 447; Rockwell v. Indian Widows, 1 L. D. 90; Heir of John Love, 2 L. D. 386; Baker v. State of California, 4 L. D. 137; Wisconsin Central R. R. Co. v. Stinka, 4 L. D. 344; Pueblo of San Francisco, 5 L. D. 483; Garriques v. Atchison, Topeka & Santa Fe R. R. Co., 6 L. D. 543; The Middle Grounds, 7 L. D. 255; Schweitzer v. Ross, 8 L. D. 70; John P. S. Vogt, 9 L. D. 114; Louisa Goldstein, 10 L. D. 155: Plymouth Lode, 12 L. D. 513; Protector Lode, 12 L. D. Peak Lode, 14 L. D. 47 (modified in South Star 662; Pacific Slope Lode, 12 L. D. 686; Pikes Lode, 20 L. D. 204); South Star Lode, 17 L. D. 280 (modified, S. C., 20 L. D. 204); Spirlock v. N. P. R. R. Co., 22 L. D. 92. 50. The action of the Land Department in issuing a patent is conclusive as to the legal title. Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574. 51. The jurisdiction of the Land Department in issuing patents and the conclusiveness of such patents discussed at length. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673. 52. The issuance of patent for public land terminates the jurisdiction of the Land Department to inquire into the character thereof. Courtright v. Wisconsin Central Ry. Co., 19 L. D. 410. 53. The issuance of patent terminates the jurisdiction of the Land Department over the land covered thereby, and the patent can be invalidated only by judicial proceedings. Thomas J. Laney, 9 L. D. 83. 54. A patent issued by the officers of the Land Department carries with it all legal presumption in support of their action. Lee v. Johnson, 116 U. S. 48. 55. "When the patent has been executed by the President and recorded in the General Land Office, all power of the Executive Department over it has ceased," and title has passed, whether or not the patent has been delivered to the patentee. Bicknell v. Comstock, 113 U. S. 149. 56. A patent regularly issued and recorded passes title without delivery to the patentee, and terminates the jurisdiction of the Land Department. Schweitzer v. Ross, 8 L. D. 70. 57. "Until patent has issued, the Department has full and complete jurisdiction over all entries not confirmed by the statute, and |