Colorado Coal & Iron Co. v. United States, 123 U. S. 307, p. 313. The United States may have a patent for a mining claim annulled in a court of equity on the ground of fraud in procuring a patent as nonmineral, when it was in fact known to the applicant to be mineral land and was at the time of the entry worked as such. United States v. Rose, 24 Fed. 196. Diamond Coal, etc., Co. v. United States, 233 U. S. 236, p. 239. See United States v. San Jacinto Tin Co., 23 Fea. 279. United States v. Minor, 114 U. S. 233. To cancel a patent for fraud the Government must allege and prove fraud by clear evidence. Northern Pac. R. Co. v. Sanders, 49 Fed. 129, p. 135. A patent for a mining claim may be set aside on the ground of fraud or in cases where it appears on the face of the patent that its issuance was not authorized by law. Carson City Gold, etc., Min. Co. v. North Star Min. Co., 83 Fed. 658, p. 665. A court will not set aside a patent to mineral land on the ground of fraud merely because the applicant was mistaken as to the character of the land, and where witnesses disagree on the question as to whether the land was in fact mineral land, it must clearly appear that the representations were false and fraudulent in fact before the court will act in such a case. United States v. Iron Silver Min. Co., 24 Fed. 568, p. 570. Where an applicant for a patent for mineral lands and the protestant have alleged and proved that such lands are in fact mineral and more valuable for mineral than agricultural purposes, though returned as agricultural by the surveyor general, the protestant can not afterwards be heard to deny the mineral character of the land in order to prevent a patent from being issued to the applicant. It is a fraud on the Government when a claimant obtains a patent on representations that the land described is valuable for its mineral deposits and that the purpose of obtaining the patent is because of such mineral deposits, when in fact the land is not valuable for such deposits and is in fact not desired by the patentee for that purpose, but for other and different purposes. United States v. Lavenson, 206 Fed. 755, p. 763. 36. PATENT UNDER HOMESTEAD LAW NOT DEFEATED. Nothing short of known mines on the land capable of being worked at a profit will prevent a patent under the homestead law. United States v. Reed, 28 Fed. 482. United States v. Central Pac. R. Co., 93 Fed. 871, p. 874. All mineral deposits discovered upon lands after a patent has issued therefor to a party claiming under the laws regulating the disposition of agricultural lands pass with the patent, and the Land Office has no further jurisdiction in such case. A mineral discovery subsequent to grant of title by the United States does not affect the title or give the discoverer or locator any right. Riley, In re, 33 L. D. 68, p. 70. Colorado Coal & Iron Co. v. United States, 123 U. S. 307, p. 328. Shaw v. Kellogg, 170 U. S. 312, p. 332. If there were not upon the premises at the time the patent was granted actual known mines capable of being profitably worked, so as to make the land more valuable for 56974°-Bull. 94-15-30 mining than for other purposes, the agricultural patent can not be successfully assailed. United States v. Central Pac. R. Co., 93 Fed. 871, p. 873. p. 328. 37. PATENT SUBJECT TO PRIOR TUNNEL SITE. The entries and patents to lode mining claims vest the titles thereof in the locators subject to the rights of the prior claimant of a tunnel site, just as they vest them subject to the rights of adjoining lode claimants to follow the dip of veins or lodes having their apices in such locations. Uinta Tunnel Min., etc., Co. v. Creede & Cripple Creek Min., etc., Co., 119 Fed. 164, p. 168. Enterprise Min. Co. v. Rico-Aspen, etc., Min. Co., 66 Fed. 200, Hall v. Equator Min., etc., Co., 11 Fed. Cas. 222. Branagan v. Dulaney, 8 Colo. 408, p. 412. Lee v. Stahl, 9 Colo. 208, p. 210. Morgenson v. Middlesex Min., etc., Co., 11 Colo. 176, p. 179. p. 210. 38. TITLE SUBJECT TO VESTED WATER RIGHTS. A provision in a patent making it subject to any vested and accrued water rights for mining or other purposes and also subject to the right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the same be found to penetrate or intersect the premises granted, as provided by law, refers only to mines located outside of the claim patented which by their dip or inclination penetrate or intersect the land patented, and does not refer to a mine discovered and located within the patented premises, nor does it mean parties claiming to be "proprietors" who located mines after the issue of the patent, but only to persons who are proprietors of mines at the time the patent issued. Pacific Coast Min., etc., Co. v. Spargo, 16 Fed. 348. A patent containing a clause making it subject to any vested and accrued water rights for mining or other purposes, and subject also to the right of the proprietor of a vein or lode to extract and remove the ore therefrom, passes the entire title as against any subsequent locator of a mining claim and no legal rights can be acquired against a patentee by a subsequent location of a mining claim. Pacific Coast Min., etc., Co. v. Spargo, 16 Fed. 348, p. 349. See Atchison v. Peterson, 87 U. S. 507. Basey v. Gallagher, 87 U. S. 670. Union Mill & Min. Co. v. Dangberg, 81 Fed. 73. Howell v. Johnson, 89 Fed. 556. Kern River Co., In re, 38 L. D. 302. McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308. Osgood v. El Dorado Water, etc., Min. Co., 56 Cal. 571. Himes v. Johnson, 61 Cal. 259. Woolman v. Garringer, 1 Mont. 535. K. AMENDMENTS TO SECTION 2325 REVISED STATUTES. AMENDMENT 1. 21 Stat. 61, January 22, 1880. AN ACT To amend sections 2324 and 2325 of the Revised Statutes of the United States concerning mineral lands. Be it enacted etc., That Sec. 2325 of the Revised Statutes of the United States be amended by adding thereto the following words: "Provided, That where the claimant for a patent is not a resident of or within the land district wherein the vein, lode, ledge, or deposit sought to be patented is located, the application for patent and the affidavits required to be made in this section by the claimant for such patent may be made by his, her, or its authorized agent, where said agents is conversant with the facts sought to be established by said affidavits: And provided, That this section shall apply to all applications now pending for patents to mineral lands." A. CONSTRUCTION OF AMENDMENT. B. AFFIDAVIT OF AGENT. C. AFFIDAVIT AS TO CITIZENSHIP, p. 428. D. PATENT-EFFECT AND LIMITATION, p. 428. A. CONSTRUCTION OF AMENDMENT. 1. EFFECT ON PENDING APPLICATIONS. This act is given a liberal construction and so far as it relates to pending applications is remedial in effect and as it relates to future applications it is an enlarging or beneficial act and the act permits affidavits connected with an application for a mining patent to be made by an attorney or agent where the applicant himself is not a resident of, or where he is temporarily absent from, the land district, at the time of the location of the claim, but the proofs can be made by an agent only when he is conversant with the facts. Frue, In re, 7 C. L. O. 20. This act authorizes an application to be sworn to by an agent and in effect legalizes pending applications sworn to by an agent, though the period of publication has expired, where it has been the practice for agents to make oath to applications. Cratty v. Routt, 7 C. L. O. 132. B. AFFIDAVIT BY AGENT. 1. NONRESIDENCE OF CLAIMANT. 2. PRESENCE OR RESIDENCE OF CLAIMANT WITHIN DISTRICT. 1. NONRESIDENCE OF CLAIMANT. Authority is given by this act to the agent of a claimant for patent to make an affidavit only where the claimant is not a resident of or within the land district, and it is to be inferred from this that Congress intended that the affidavit should be made within the land district. Mattes v. Treasury Tunnel, Min., etc., Co., 34 L. D. 314, p. 319. See Rico Lode, In re, 8 L. D. 223. Not until this amendatory act was passed could an agent make the oath to an application for a mineral patent and under this act an agent can make such oath only in case the claimant for the patent is not a resident of or is not within the land district wherein the claim sought to be patented is located. Crosby and Other Lode Claims, In re, 35 L. D. 434, p. 435. See Drescher, In re, 41 L. D. 614. Robbins, In re, 42 L. D. 481, p. 484. Where an applicant for a mineral patent is not a resident of or within the land district where his claim is located, this act permits his application for patent and the necessary affidavits in connection therewith to be made by an authorized agent. Drescher, In re, 41 L. D. 614, p. 615. Applicants for patent for mining claims may under this act be represented by agents in the making of the required affidavit. Frank Hough Min. Co. v. Empire Prince Min. Co., 42 L. D. 99. 2. PRESENCE OR RESIDENCE OF CLAIMANT WITHIN DISTRICT. This act does not authorize an application and the necessary affidavits to be made by an agent where the applicant himself resides in or where he is physically within the land district at the time application for patent is executed. Drescher, In re, 41 L. D. 614, p. 615. The affidavit required of a mineral claimant can not be made by an agent where the applicant himself is a resident of and at the date of the application is within the land district where the claim is located. Rico Lode, In re, 8 L. D. 223. Crosby and Other Lode Claims, In re, 35 L. D. 434. El Paso Brick Co., In re, 37 L. D. 155, p. 158. An applicant for a mineral patent verified by an attorney in fact for the applicant made at a time when the claimant was a resident and physically within the land district is unauthorized and insufficient. Robbins, In re, 42 L. D. 481, p. 484. Pocatello Gold & Copper Min. Co., In re, 42 L. D. 550, p. 552. 3. EFFECT OF UNAUTHORIZED AFFIDAVIT. Where an agent makes oath to an application under conditions not within the terms of this act the application and proceedings are invalid and can not be cured by filing a new application properly verified, nor can entry be allowed and the proceedings be submitted to the board of equitable adjudication. Crosby and Other Min. Claims, In re, 35 L. D. 434. See Dresher, In re, 41 L. D. 614. Robbins, In re, 42 L. D. 481, p. 484. Where an application for patent is sworn to by a person having no authority under the statute to make the oath, it must be treated as though it had not been sworn to at all, and an agent can only make the required oath as provided and permitted by this statute. Crosby and Other Lode Claims, In re, 35 L. D. 434, p. 436. C. AFFIDAVIT AS TO CITIZENSHIP. This act does not change or relate to the proof of citizenship, but proof must be made under section 2335. Phillips, In re, 8 C. L. O. 5. D. PATENT-EFFECT AND LIMITATION. This amendment, with the original section, indicates that Congress intended that the patent should convey all, but should be subject to all extralateral rights. Waterloo Min. Co. v. Doe, 82 Fed. 45, p. 50. AMENDMENT 2. 36 Stat. 459, June 7, 1910. This amendment refers to Alaska and is with Alaska Compiled Laws, p. 879. SECTION 2326, REVISED STATUTES. Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within 30 days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver $5 per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim with the proper fees, and file the certificate and description by the surveyor general, whereupon the register shall certify the proceedings and judgment roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of a title conveyed by a patent for a mining claim to any person whatever. This section is the same as section 7, act of May 10, 1872 (17 Stat. 91, p. 93), p. 679. See 21 Stat. 505, p. 496; 22 Stat. 49, 1 Supp. 238, p. 502; 36 Stat. 459, p. 503. A. CONSTRUCTION AND APPLICATION. B. ADVERSE CLAIMS-FILING, p. 433. C. PROCEEDINGS ON ADVERSE CLAIMS, p. 447. D. AUTHORITY AND JURISDICTION OF LAND DEPARTMENT, p. 487. E. PATENT-EFFECT, p. 493. F. LAVAGNINO v. UHLIG, p. 494. G. AMENDMENTS TO SECTION 2326 R. S., p. 496. |