the lode patent. Smoke House Lode, City, 4 L. D. 555. Butte the remedy must be found in the courts, and 11. A conflicting survey already patented cannot, as an adverse claim, delay an application for a patent. Equator M. & Sm. Co., 2 C. L. O. 114. 12. A co-owner need not protect his rights by adverse, if application for patent is made in their own names by the other co-owners; but if patent issues to them they will be declared constructive trustees for the owner whose name is omitted from the application. Brundy v. Mayfield, 15 Mont. 201; 38 Pac. Rep. 1067; Turner v. Sawyer, 150 U. S. 578. Contra, Grampian Lode, 1 L. D. 544; Monitor Lode, 18 L. D. 358. 13. Dower interest in a mining location must be protected by an adverse claim under section 2326, United States Revised Statutes, as the possessory title which is subject to dower merges in the absolute fee simple title on issuance of patent. Black v. Elkhorn M. Co., 49 Fed. Rep. 549. 14. 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. 19. A. and B. claim the same vein under conflicting locations. A verbal agreement is made that A. should obtain patent and convey a one-half interest to B., expenses to be borne equally. On suit to compel specific performance, it was held that the agreement was within the Statute of Frauds; that relinquishing a disputed possession and simply refraining from filing an adverse claim did not constitute a part performance, such as would take the agreement out of the statute, and that even a part payment of expenses of securing patent could not avail plaintiff, for the reason that there was no such mutuality of obligation in the agreement as would have enabled the defendant to compel such payment had plaintiff seen fit to refuse it. Ducie v. Ford, 8 Mont. 233; S. C., 138 U. S. 587. 20. A patent may issue for a mining claim, where a waiver of adverse claim is filed in the land office, without requiring evidence of the disposition of the suit instituted on the adverse claim. St. Lawrence M. Co. v. Albion Cons. M. Co., 4 L. D. 117. 21. 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 15. A patent issued for a mining claim patent for the remainder of his claim, or (3) during the pendency of suit properly brought dismiss his application for patent in its enon an adverse claim is void. Rose v. Rich-tirety and continue to claim under possessory mond M. Co., 17 Nev. 25; 27 Pac. Rep. 1105; 2 Colo. Law Rep. 7; 114 U. S. 576. 16. An adverse claim must be settled or waived before a patent can issue. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673. 17. The allowance of mineral entry during the pendency of an adverse suit has no effect on the patent issued after the termination of the adverse suit in favor of the applicant. Deno v. Griffin, 20 Nev. 249; 20 Pac. Rep. 308. 18. "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, title. Branagan v. Dulaney, 2 L. D. 744. 22. An applicant for patent may abandon the part adversely claimed, and after survey receive a patent for the part not in controversy. Fairmount G. & S. M. Co., 1 C. L. O. 82. 23. An abandonment of surface ground in conflict does not terminate the contest initiated by an adverse claimant, but the judgment of the court must be had upon all questions before patent can issue. Ayers v. Daly, 3 C. L. O. 196. 24. Issuance of patent for a mining claim during pendency of adverse suit is no ground for dismissal of the suit. Frien v. Oggshaw, 3 Wyo. 59. 25. An adverse claimant, whose adverse suit has been dismissed, cannot complain of the fact that entry was made and patent is- | Rep. 334; United States v. Reed, 12 Sawy. 99; sued during the pendency of such suit, and 28 Fed. Rep. 486. the validity of the patent is not affected by such irregularity. Deno v. Griffin, 20 Nev. 249; 20 Pac. Rep. 308. 26. In case of failure to adverse, only crossveins and those uniting on the dip with the one patented are excepted from the patent. Lee v. Stahl, 13 Colo. 174; 22 Pac. Rep. 436. (Affirming 9 Colo. 208; 11 Pac. Rep. 77.) 27. A judgment rendered on an adverse 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. 28. All adverse claims are barred by the issuance of patent. Raunhein v. Dahl, 6 Mont. 167; 9 Pao. Rep. 892; S. C., 132 U. S. 260; Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282. 29. A successful adverse claimant should have a plat and field-notes constructed by the United States Surveyor General from the copy of the judgment roll, showing the ground awarded him. He must file said plat and field-notes, together with the Surveyor General's certificate of $500 expenditure and certified copy of the judgment roll, in the local land office, and may thereupon make payment for the land. Albert F. Harsh, 2 L. D. 706. 2. Agricultural. (See AGRICULTURAL CLAIM, p. 376.) 30. To be reserved from entry under the agricultural land laws, and from patent issued under said laws, land must have been known at the time of sale (entry) to be valuable for its minerals. A discovery of its mineral character subsequent to that date cannot affect the title. Deffeback v. Hawke, 115 U. S. 392. 31. To be excepted from an agricultural patent, land must have been known to be more valuable for mineral than for agricultural purposes at date of agricultural entry. Development after entry is immaterial. Hunt v. Steese, 75 Cal. 620; 17 Pac. Rep. 920; Boggs v. Merced M. Co., 14 Cal. 380; 10 Mor. Min. 32. The discovery that land is valuable for coal, after a final homestead entry, will not reserve it from patenting under the homestead entry. Nicholas Abercrombie, 6 L. D. 393. 33. Mineral land to be excepted from an agriculural patent must have been known to be such at date of the agricultural claimant's entry and payment for the land. Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348. 34. A patent to a tract of land under the pre-emption or homestead laws does not give title to known mines. Hugh B. Newell, 3 C. L. O. 50; Bellows v. Champion Mine, 4 C. L. O. 17; George M. Hurlbut, 5 C. L O. 5. 35. An agricultural entry of mineral lands gives no right to a patent. Scogin v. Culver, 7 C. L. O. 23. 36. An agricultural patent is void as against pre-existing valid mining claims. Gold Hill Qtz. M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635. 37. The rightful owners will be allowed to secure patent for their mine, notwithstanding the patenting of a Porterfield warrant covering the land. A. V. Weise, 2 C. L. O. 130. ural claim, and thereafter patent inadvert38. Where a patent issued on an agricultently issued for a mining claim in conflict therewith, and it is shown that said mining claim was located prior to the agricultural entry, parties claiming under said patents will be left to their remedies in court. Com'r to Salt Lake City Office, Feb. 26, 1896, Bently v. Gibbons. 3. Alien. (See CITIZENSHIP, p. 48.) 39. The title of a claimant of the public mineral lands as locator of a mining claim may not be questioned on the ground of alienage by any one excepting the United States, or in proceedings to obtain United States patent (on adverse suit). Billings v. Aspen M. & Sm. Co., 10 U. S. App. 1, 322; 51 Fed. Rep. 338; Wood v. Aspen M. & Sm. Co., 36 Fed. Rep. 25. 40. Aliens cannot hold a mining claim prior to the issuance of patent therefor. Beckner v. Coates, 3 C. L. O. 18. 41. An alien cannot locate, possess, purchase or acquire title by patent to mineral land. Tibbitts v. Ah Tong, 4 Mont. 536. 42. A mining claim sold to an alien cannot be patented while such owner is an alien. William S. Wood, 3 C. L. O. 69. 43. Locators and intermediate owners, other than applicants, will not be presumed aliens in the absence of allegations or objection prior to issuance of patent. Wandering Boy Lode, 2 C. L. O. 2. 44. A foreign corporation, assignee of a patentee, has the same rights before the Land Department as the patentee. William W. Ramage, 2 C. L. O. 115. 4. Assignee. 45. "Until patent has issued, the Department has full and complete jurisdiction over all entries not confirmed by the statute, and persons who purchase on the faith of the receiver's receipt do so at their own risk and take the land subject to all the infirmities of title, so far as the government is concerned." Louise M. Co., 22 L. D. 662. 46. The grantee of an entryman before issuance of patent takes no better title than his grantor, and cannot pose before the Land Department as an innocent purchaser. R. M. Chrisinger, 4 L. D. 347. 47. 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 title. Murphy v. Sanford, 11 L. D. 123; William E. McIntyre, 6 L D. 503; C. A. Kibling, 7 L. D. 327; George Hague, 13 L. D. 388; United States v. Miller, 14 L. D. 617. 48. The transferee of a coal entryman, prior to the issuance of patent, takes no greater right than his grantor had, i. e., an equitable title, and the entry is subject to cancellation by the Land Department, just as though no transfer had been made. Scott v. Sheldon, 15 L. D. 588. 49. When, between the dates of making entry and issuance of patent, the entryman sells the claim, the grantee holds under the patent, which relates back to date of entry. Brown v. Warren, 16 Nev. 229. 5. Description. 50. The limits of a patented mining claim may be identified by location monuments when the description of the claim in the patent by courses and distances is found to be incorrect. In identifying property by a patent, monuments will control courses and distances in case of discrepancy. A patent is not void if the claim patented may be identified by monuments therein referred to, even if the course and length of the lines of Cullacott survey of the claim are erroneous. v. Cash G. & S. M. Co., 8 Colo. 179; 6 Pac. Rep. 211; 15 Mor. Min. Rep. 392. 51. A patent is not conclusive as to the correct boundaries and locus of the claim, but may be shown to be erroneous in the matter of description. Bell v. Skillicorn, 28 Pac. Rep. 768. 6. Dip-Apex. (See SURFACE GROUND, p. 61.) 52. In the absence of a showing to the contrary, it is presumed that a patentee of a claim has the right to any lode inside of his surface lines. Iron Silver M. Co. v. Campbell, 17 Colo. 267; 29 Pac. Rep. 513. 53. A patentee has a prima facie right to all minerals inside the lines of his claim, and the burden is on one following a lode on its dip into the claim to show that he has a valid location on the apex of the lode. Duggan v. Davey, 26 N. W. Rep. 887. 54. A patentee has a prima facie right to all mineral within the surface lines of his claim, and the burden of proof is on one who claims the right to take the same as part of a lode dipping under said claim, to show title to the same. Bell v. Skillicorn, 28 Pac. Rep. 768. 55. Under section 2322, United States Re vised Statutes, the locator of a mining claim on the apex of a lode may follow the lode on its dip, even though it dips into a claim held under a senior patent. Colorado Central Cons. M. Co. v. Turck, 4 U. S. App. 290; 50 Fed. Rep. 888; 12 U. S. App. 85. 56. A lode patent is subject to the rights of others to follow their lodes on the dip under the patented claim. Cheesman v. Hart, 42 Fed. Rep. 98. 57. A locator on the dip has no right as against a locator on the apex, the date of respective patents being immaterial. Colorado Central Cons. M. Co. v. Turck, 4 U. S. App. 290; 50 Fed. Rep. 888; 12 U. S. App. 85. 58. Though a United States patent grants the right to follow on its dip the patented lode, such right may be restricted, as between parties, by a contract made before patent. Richmond M. Co. v. Eureka M. Co., 103 U. S. 839; 9 Mor. Min. Rep. 634. (Former trials S. C., 8 Mor. Min. Rep. 144; 9 Mor. Min. Rep. 578.) 7. Discovery. (See DISCOVERY, p. 40.) 59. The discovery and location of a claim in pursuance of the law is equivalent to a contract of sale and purchase where the purchaser is let into possession and becomes entitled to a deed upon payment of purchasemoney and making of a certain expenditure. Renshaw v. Switzer, 6 Mont. 464; 13 Pac. Rep. 127; 15 Mor. Min. Rep. 345. 60. Discovery and appropriation are recognized as the sources of title to mining claims, and development by working as the condition of continued ownership, until issuance of patent therefor (entry of the claim and payment for the land). Erhardt v. Boaro, 113 U. S. 527; 4 Mor. Min. Rep. 432. 65. The decision of the Department, In re Juniata Lode, 13 L. D. 715 (wherein the Department consented to accept a reconveyance of a part of a patented placer claim covered by a lode location, for the purpose of issuing patent for the lode claim without suit. to vacate the placer patent), is not applicablewhere it is desired to allow a lode patentee to reconvey a tract for the purpose of giving an unpatented lode claim its discovery. Winter Lode, 22 L. D. 362. 66. Patent cannot be issued based upon a discovery made after application therefor. Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66. 67. 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 meanof the statute. United States v. King, 9 Mont. 75. 61. A patent will not issue for a lode claiming the discovery of which is excluded from the entry. Edward W. Williams, 20 L. D. 458. 68. Before land may be patented under the 62. A location of a lode claim must be mineral land laws, "there must be a discovbased on a discovery of a vein or lode on va-ery of the mineral, and a sufficient exploracant public land. If the discoverer whose | tion of the ground to show this fact beyond sole discovery is upon a conflicting claim al- question." United States v. Iron Silver M. lows such conflicting claim to be patented Co., 128 U. S. 673. (Affirming S. C., 24 Fed. inclusive of his discovery, he loses all right Rep. 568.) under his location, and his claim becomes open to exploration and location by others. Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482. 63. The patenting of the discovery shaft of a first locator to a subsequent locator of a conflicting claim leaves the first claim subject to relocation. Miller v. Girard, 33 Pac. Rep. 69. 64. Where the original discovery shaft of a mining location is included within a subsequent location as patented, on the failure of the first locator to commence adverse proceedings within the time required, or to set up a new discovery stake at a new discovery shaft on unappropriated ground, he loses all rights under the prior location, not only as against the patentee but also as against subsequent locators. Girard v. Carson, 44 Pac. Rep. 508 (Colo.). 69. In ejectment for a mining claim, where it appears that the discovery shafts of both parties are identical, evidence that the discoveries were made on lands patented prior to the dates of discovery of either party should be admitted, and if the fact is found, neither party can recover. Moyle v. Bullene, 44 Pac. Rep. 69 (Colo.). 8. Easement. 70. The fact that a mining claim is subject to an easement in the shape of a right of a railroad company to lay tracks and place necessary station buildings on the same will not prevent the issuance of patent. Eugene McCarthy, 14 L D. 105. 71. A patentee of mining land, over which an adjoining owner had for several years, by local custom and from necessity, maintained a ditch to carry detritus from a hydraulic | public lands, can only be overcome by clear mine to a river, took subject to the easement. and convincing proof." United States v. (Sec. 2339.) Jacob v. Day, 44 Pac. Rep. 243 (Cal.). | Iron Silver M. Co., 128 U. S. 673. (Affirming S. C., 24 Fed. Rep. 568.) 9. Effect-Presumption Attending. 72. Land patents, in actions at law, are conclusive "of all matters of fact necessary to their issue, where the Department had jurisdiction to act upon such matters and to determine them; but if the lands patented were not at the time public property, having been previously disposed of, or no provision had been made for their sale, or other disposition, or they had been reserved from sale, the Department had no jurisdiction to transfer the land, and their attempted conveyance by patent is inoperative and void, no matter with what seeming regularity the forms of law have been observed." Davis' Adm'r v. Weibbold, 139 U. S. 507. See 7 Mont. 107. 73. The issuance of patent evidences discovery, proper location, marking, posting of notice, recording thereof, requisite expenditure, notice of application, and that all other steps to acquire patent, required by law, were regularly taken. Last Chance M. Co. v. Tyler M. Co., 15 U. S. App. 456. 74. No one in a court of law can go behind a patent and call in question the validity of the proceedings upon which it is founded. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673. 75. A mining patent proves that the land is mineral; that the location was valid; that $500 had been expended for development; and that all other things necessary were done. Beard v. Federy, 3 Wall. 492; Stark v. Starr, 6 Wall. 418; St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Eureka Cons. M. Co. v. Richmond M. Co. (Eureka case), 4 Sawy. 302; 9 Mor. Min. Rep. 578; Moore v. Wilkinson, 13 Cal. 478; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434. 76. After issuance of patent to a mining claim, the sufficiency of the location notice cannot be questioned. Chambers v. Jones, 17 Mont. 156. (Citing and quoting approvingly, Talbott v. King, 6 Mont. 131.) 77. "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 79. A patentee cannot be required to explain every step toward the acquisition thereof, nor to prove the performance of all required acts leading thereto. United States v. Marshall M. Co., 129 U. S. 579. 80. The 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. 81. A patent is proof of compliance by the patentee or his grantors with all the requirements of law. Last Chance M. Co. v. Tyler M. Co., 9 U. S. App. 613; 61 Fed. Rep. 557. 82. A patent evidences a grant, and the presumption is that all acts have been performed and all facts have been shown which are prerequisites to its issuance. Green v. Barker, 66 N. W. Rep. 1032. 83. 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. 84. In favor of the validity and integrity of a United States patent it must be presumed that all antecedent steps necessary to its issuance were duly taken. Iron Silver M. Co. v. Campbell, 17 Colo. 267; 29 Pac. Rep. 513. See S. C., 135 U. S. 286. 85. A patent passes government title to the surface and any veins 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. 86. The action of the Land Department in issuing a patent is conclusive as to legal title. |