284. In order to ascertain which party is entitled to a mining patent it is only necessary to determine which party at the time of its issue was the rightful owner of the mining claim in question, as against everybody but the United States, under the laws, rules, customs and decisions of the courts in force at the time in the locality embracing it. 420 M. Co. v. Bullion M. Co., 3 Sawy. 634; 9 Nev. 240; 11 Mor. Min. Rep. 608.

285. Where a mineral patent is secretly obtained by fraud to the injury of a third person, the patentee will be declared a trustee for the person rightfully entitled to the patent. Lakin v. Sierra Buttes G. M. Co., 11 Sawy. 231; 25 Fed. Rep. 337.

286. Where a patent is obtained, by a literal compliance with the legal requirements, for land really belonging to a third person, the patentee may be declared trustee for the person really entitled to the land. Lakin v. Sierra Buttes G. M. Co., 11 Sawy. 231; 25 Fed. Rep. 337.

287. Where a claim has been abandoned after publication of notice of application therefor, and then relocated by a stranger, and subsequently entered by, and patented to, the applicant, the patentee will be declared trustee for the relocator. (Strong dissenting opinion.) South End M. Co. v. Tinney, 35 Pac. Rep. 89.

288. If a patent is issued to the wrong party, he may be declared trustee for the rightful owner; but if the patent issued without authority of law it is void, and neither party can claim anything under it. Rose v. Richmond M. Co., 17 Nev. 25; 25 Pac. Rep. 1105; 2 Colo. Law Rep. 7; S. C., 114 U. S.

576.

289. The patent, like the deed of the individual, is inoperative if the government never owned the property, or had previously conveyed it, or had dedicated it to uses which precluded its sale. Steel v. St. Louis Sm. Co., 106 U. S. 447.

290. Where parties have acquiesced for eight years in a decision of the local land office dismissing their application for a mineral patent, and the land has meantime been patented to another, they have no standing in a court of equity for the purpose of attacking the patent. United States v. Marshall M. Co., 129 U. S. 579.

21. Vacation.

AN ACT to amend section eight of an act approved March third, eighteen hundred and ninety-one, entitled "An act to repeal timber-culture laws and for other purposes."

Representatives of the United States of AmerBe it enacted by the Senate and House of ica in Congress assembled, That section eight of an act entitled "An act to repeal timber-cult ure laws, and for other purposes," approved March third, eighteen hundred and ninetyone, be and the same is hereby amended so as to read as follows:

to vacate and annul any patent heretofore "SEC. 8. That suits by the United States issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents. And in the States of Colorado, Montana, Idaho, North Dakota and South Dakota, Wyoming, and the District of Alaska, and the gold and silver regions of Nevada and the Territory of Utah, in any criminal prosecution or civil action by the United States for a trespass on such public timber lands or to recover timber or lumber cut thereon, it shall be a defense if the defendant shall show that the said timber was so cut or removed from the timber lands for use in such State or Territory by a resident thereof for agricultural, mining, manufacturing, or domestic purposes under rules and regulations made and prescribed by the Secretary of the Interior, and has not been transported out of the same; but nothing herein contained shall operate to enlarge the rights of any railway company to cut timber on the public domain: Provided, That the Secretary of the Interior may make suitable rules and regulations to carry out the provisions of this act, and he may designate the sections or tracts of land where timber may be cut, and it shall not be lawful to cut or remove any timber except as may be prescribed by such rules and regulations; but this act shall not operate to repeal the act of June third, eighteen hundred and seventyeight, providing for cutting of timber on mineral lands.

Approved, March 3, 1891. (26 Stat. 1093.) Slightly amending sec. 8 of an act of the same date and title. (26 Stat. 1095.)

291. The United States has the same remedy in a court of equity to set aside or annul a patent for land, on the ground of fraud in its procurement, that an individual would

have to secure the cancellation of a deed United States v. fraudulently procured. Minor, 114 U. S. 233; United States v. Rose, 24 Fed. Rep. 196.

292. The right of the United States to bring suit to vacate a land patent exists only when the government has an interest in the

remedy sought by reason of its interest in the land or that fraud has been practiced on the government, to its prejudice, or it is under obligations to make good title for some one other than the patentee, or where public policy demands. United States v. San Jacinto Tin M. Co., 125 U. S. 273. (Affirming S. C., 23 Fed. Rep. 279.) United States v. Beebe, 127

U. S. 338.

293. The Attorney General of the United States has authority to bring suit on behalf of the United States to vacate a land patent.

United States v. San Jacinto Tin M. Co., 125

U. S. 273. (Affirming S. C., 23 Fed. Rep. 279.) United States v. Beebe, 127 U. S. 338.

Western

294. Suit to vacate should be brought in the name of the United States. Pacific R. R. Co. v. United States, 108 U. S. 510.

295. A bill in chancery brought in the name of the United States to vacate a patent cannot be made to serve as a writ of error or as a motion for a new hearing, or as a motion for a new trial of the case as decided by the Land Department. United States v. Marshall M. Co., 129 U. S. 579.

296. Fraud such as will warrant suit to set aside patent must be fraud extrinsic to the matter tried in the land office. United States v. White, 17 Fed. Rep. 561; United States v. San Jacinto Tin M. Co., 125 U. S. 273. See S. C., 23 Fed. Rep. 279.

297. Where a patent erroneously issues for land which the United States is required by law to convey to one other than the patentee, the United States will bring suit to vacate. Hughes v. United States, 4 Wall.

300. Suit to vacate a United States patent will be brought if the United States has an interest in the title. United States v. Minor, 114 U. S. 233; Mullan v. United States, 118 U. S. 271.

301. Suit to vacate a patent will be brought when the vacation is necessary to the protection of a third person whose rights the United States is bound to protect. Williams v. United States, 138 U. S. 573.

302. Where a patent has been obtained through fraud, and if allowed to stand would work prejudice to the rights of the United States, or prevent it from fulfilling an obliga

tion, suit to vacate is warranted. United States v. Missouri, K. & T. Ry. Co., 141 U. S.

358.

303. A patent issued under the agricultural laws for land known to be mineral will be vacated on suit by the United States. United States v. Culver, 52 Fed. Rep. 81.

304. "If fraud, mistake, error or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals; and if the government is the party injured, this is the proper course." Moore v. Robbins, 96 U. S. 530.

305. Suit to vacate a patent for fraud in its procurement will not be recommended by the Land Department where the land has passed into the hands of one not shown to have taken with notice of the fraud. William W. Wilson, 6 L. D. 395.

306. The United States may maintain a suit in equity to vacate a patent issued for a placer claim which was not placer land, but which was valuable for lodes and timber. United States v. Iron Silver M. Co., 5 McCrary, 266.

307. A corporation, some of the stockholders of which had exhausted their rights under the coal land laws, procured various persons individually qualified to make entry of coal lands for the purpose of transferring title acquired by such entry to the corporation. Held, that the transaction was in violation of the law governing the disposal of public lands containing coal, and that patents so obtained were voidable for fraud in their procurement. United States v. Trinidad Coal & Coking Co., 137 U. S. 160. (Reversing S. C., 37 Fed. Rep. 180.)

308. The United States may maintain a suit to vacate a patent issued by mistake, without showing that any third person has any right to the land patented. Germania Iron Co. v. United States, 19 U. S. App. 10. 309. Lands known to be valuable for coal are not subject to indemnity selection by the State of California for lands lost under its school land grant, and if a patent issues to the State for lands so known at date of issuance of patent, the United States may bring suit in equity to vacate the patent, though issued without fraud. Mullan v. United States, 118 U. S. 271. See S. C., 7 Sawy. 466; 10 Fed. Rep. 785. The representations must have been falsely and fraudulently made. A mistake as to the character of the land will not suffice. United States v. Iron Silver M. Co., 24 Fed. Rep. 568. See S. C., 128 U. S., 673.

310. It is not ground to set aside a patent that it should not have been issued to the patentee. The plaintiff must show a better right in himself. Sparks v. Pierce, 115 U. S.

408.

311. Where the United States brings a suit in equity to vacate a land patent for fraud in its procurement, it is not obliged to tender repayment of the purchase price paid for the land by the patentee. United States v. Trinidad Coal & Coking Co., 137 U. S. 160.

312. In order to secure the annulment of a patent for fraud, the fraud must be clearly proven. United States v. Stone, 2 Wall. 525; United States v. Throckmorton, 98 U. S. 61; Maxwell Land Grant Case, 121 U. S. 325; United States v. San Jacinto Tin M. Co., 125 U. S. 273; United States v. Iron Silver M. Co., 128 U. S. 673. (See S. C., 24 Fed. Rep. 568.) United States v. Budd, 144 U. S. 154.

313. The allegation that a patent was fraudulently obtained should state the facts. United States v. Tichenor, 12 Fed. Rep. 415.

314. 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.

clearly shown and the land has passed into the hands of a bona fide purchaser. G. T. Dickinson, 10 L. D. 449.

317. The United States will not attack its patent, regularly issued, for fraud in its procurement, unless such fraud is very clearly shown, especially where the land has passed into the hands of bona fide purchasers. Butte & Boston M. Co., 21 L. D. 125.

318. Suit will be recommended by the Land Department to vacate a patent procured by fraud where such action is necessary to protect the rights of a third person. Mountain Maid Lode, 5 L. D. 28.

319. The Land Department will recommend to the department of justice that suit be instituted to vacate a patent issued through inadvertence and mistake to the prejudice of another. Lead City Town Site v. Little Nell Lode, 17 L. D. 291.

320. If a patent is shown to have issued on false and fraudulent proof, the Land Department will recommend to the Attorney General that suit be instituted to vacate the same. Nicholas Abercrombie, 6 L. D. 393.

321. Suit to vacate should be recommended

if patent was issued upon an incorrect survey. United States v. Rumsey, 22 L. D. 101.

322. The fact that lodes were known to exist within a placer claim at date of application for placer patent will not warrant recommendation of suit to vacate the placer patent where evidence of fraud is not clear, and the rights of bona fide purchasers have attached. The right of persons owning lodes within the placer at date of the application for placer patent are not injured by the issuance of the patent. Departmental decision of Sept. 21, 1893, In re Haskill v. Upton.

323. A petition asking the Secretary of the Interior to recommend suit to vacate a land patent will not be considered if not served upon the one claiming under the patent. Little Nell Lode, 16 L. D. 104.

324. A petition addressed to the General Land Office asking that suit be brought to vacate a patent should be forwarded to the Department with a recommendation as to the advisability of ordering a hearing pre

Butte & Boston M. Co., 21 L. D. 125.

325. A hearing to determine whether or not suit should be recommended to vacate a United States patent should be ordered only

326. Where there are no adverse interests, the patent for a mine will not be disturbed notwithstanding irregularities in issuing it. Antelope Lode, 2 C. L. O. 2.

327. It is too late after patent has issued to object to the proof because it was not specific. Prince of Wales Lode, 2 C. L. O. 2.

328. Suit to vacate a patent will not be recommended by the Land Department where the matters made the basis of the petition therefor were fully considered and determined in favor of the claimant before the issuance of patent. Thomas Starr, 2 L. D. 759. 329. The failure of an applicant to comply with local regulations will not justify suit by the United States to vacate the patent issued to him. Such failure should be made the subject of an adverse claim or protest during the pendency of the application. Robert Hawke,

5 L. D. 131.

330. A stranger will not be heard to complain of the action of the government in issuing a land patent. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673.

331. Suit may be brought by the United States to vacate a patent fraudulently procured, and for an accounting for rents and profits. United States v. Pratt Coal & Coke Co., 18 Fed. Rep. 708.

22. General.

332. The stability of titles by patent is of the highest public importance. 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; Sullivan v. Iron Silver M. Co., 109 U. S. 550; United States v. Maxwell Land Grant, 121 U. S. 379. See 3 Op. Atty. Gen. 420.

333. “A patent of the United States for land, whether agricultural or mineral, is something upon which its holder can rely for peace and security in his possessions. In its potency it is iron clad against all mere speculative inferences." Eureka Cons. M. Co. v. Richmond M. Co. (Eureka Case), 4 Sawy. 302; 9 Mor. Min. Rep. 578.

334. The policy of the law is to require all rights and equities in the premises sought to be purchased and patented to be adjusted prior to the issuance of patent, to the end that it may be impregnable against all comers.

Min. Rep. 482; 420 M. Co. v. Bullion M. Co., 3 Sawy. 634; 9 Nev. 240; 11 Mor. Min. Rep. 608; Eureka Cons. M. Co. v. Richmond M. Co. (Eureka Case), 4 Sawy. 302; 9 Mor. Min. Rep. 578; Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 208; 11 Pac. Rep. 77; 13 Colo. 174; 22 Pac. Rep. 63; 12 Mor. Min. Rep. 178; Lee v. Stahl, 9 Colo.

436; Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450.

385. The doctrine of res judicata should be rigorously applied to the litigation brought to test the right to the issue of a patent. 420 M. Co. v. Bullion M. Co., 3 Sawy. 634; 9 Nev. 240; 11 Mor. Min. Rep. 608.

336. Courts should be slow in disturbing should be clearly satisfied that the applicant the title conveyed, and before they do they

made false and fraudulent representations. Questions of doubt should be resolved in favor of applicant. United States v. Iron Silver M. Co. (C. C.), 12 C. L. O. 163.

has intentionally concealed material facts, or

337. The procuring of patent to a mining claim by regular procedure is in the nature of a proceeding in rem as against the world. 420 Mining Co. v. Bullion M. Co., 3 Sawy. 634; 9 Nev. 240; 11 Mor. Min. Rep. 608.

338. The proceedings necessary to acquire a mineral patent are in the nature of a proceeding in rem, and are binding upon the world so far as concerns claims adverse to that of the applicant. Hamilton v. Southern Nevada G. & S. M. Co., 13 Sawy. 113; 33 Fed. Rep. 562; 15 Mor. Min. Rep. 314.

339. Patent will not issue for a lode claim

divided into two non-contiguous parts by a patented mill site, but may be issued for the tract on which are situate the discovery and

improvements. Andromeda Lode, 13 L. D. 146.

340. A location which is separated along the line of the lode by a patented location made on a parallel lode is invalid as to one of the non-contiguous portions of the lode, as all parallel lodes embraced in the patented claim passed under the patent therefor. Col. Hall Lode (Keanage M. Griffin), 2 L. D. 735, 736.

341. Where lodes in their general directions are cross-lodes, one may be patented exclusive of the other, although in a part of the conflict of claims they may be parallel. Patten Extn. Lode, 15 L. D. 133.

343. Section 2326, United States Revised Statutes, recognizes the patentability of portions of mining claims. Gustavus Hagland, 1 L. D. 593.

344. The final survey and patent must follow the application for patent. Prince of Wales Lode v. Highland Chief Lode, 2 C. L. O. 2.

345. Patent cannot issue for a mining claim any part of which is outside of the original location. Dyer v. Jackson, 6 C. L. O. 171.

346. The fact that a mining claim within an Indian reservation has been worked for several years gives the miner no right to a patent therefor. Com'r to A. B. Knight, Jan. 20, 1879, 5 C. L. O. 179.

347. Patent will not issue for a placer claim not shown to be valuable as such, and used only for the purpose of storing water for use on another placer claim. Robert S. Hale, 3 L. D. 536.

348. The fact that a placer patent was obtained with the intention of acquiring title to lodes supposed to exist within the placer claim, but as yet undiscovered, will not defeat the title of the placer patentee. Iron Silver M. Co. v. Reynolds, 124 U. S. 374; S. C., 116 U. S. 687; 15 Mor. Min. Rep. 591, first trial.

349. A placer patent carries title to the surface of the claim as well as to the land beneath the surface. Deffeback v. Hawke,

115 U. S. 392.

354. A lode patent includes all veins having their tops or apexes within the surface patented. Iron Silver M. Co. v. Cheesman, 2 McCrary, 191; 9 Mor. Min. Rep. 552.

355. Section 9 of the act of 1866 (relative to water-rights) is not retroactive in its effect, and patents theretofore granted are not affected thereby. Said act merely recognized and confirmed rights held under local customs, laws and decisions. Union Mtn. M. Co. v. Ferris, 2 Sawy. 176; 8 Mor. Min. Rep. 90.

356. Mere appropriation of water confers no right against a subsequent patentee of the land whence the water comes. Van Sickle v. Haines, 7 Nev. 249; 15 Mor. Min. Rep. 201. (Overruled in Jones v. Adams, 19 Nev. 78.)

357. Patents for public land issue subject to vested rights of appropriators of water under local customs, statutes and decisions. Osgood v. Eldorado Co., 56 Cal. 571; 5 Mor. Min. Rep. 37; Barnes v. Sabron, 10 Nev. 217; 4 Mor. Min. Rep. 673.

358. The rights of persons owning mining ditches upon public lands are protected by section 2339, United States Revised Statutes. Patents are not issued for such ditches. Com'r to Binger Herman, Feb. 18, 1892.

359. A mineral patent issued after May 10, 1872, could not convey more than three hun

dred feet of surface on each side of the lode

applied for, even though the location was

351. A patent for a mining claim located by the register of a local land office may issue to his grantee who took in good faith, and who has complied with the law. (No opinion expressed as to the legality of such a location.) Rust & Criteser, 2 L. D. 754.

352. Where a locator of a mining claim conveys the same with an agreement that he shall secure patent therefor in his own name, he may be allowed to make application and entry for the claim, notwithstanding his lack of title. A. P. Smith, 3 L. D. 340.

353. An entry may be passed to patent which was made by one claiming under a

ing a width of three hundred feet on each side of the middle of the vein, is void as to the excess, and to that extent may be attacked collaterally. Lakin v. Dolly (S. C., as Lakin v. Roberts), 53 Fed. Rep. 333; 54 Fed. Rep. 461; 7 U. S. App. 539.

360. A patent to a fictitious person is not voidable but is absolutely void. Moffat v. United States, 112 U. S. 24; United States v. Southern Colorado Coal & Iron Co., 18 Fed. Rep. 273.

361. A patent issued subsequent to the act of May 10, 1872, may embrace a placer consisting of more than one hundred and sixty acres, and including as many adjoining loca tions as the patentee has purchased. The