. Where an adverse claim is brought in a proper court the department is ousted of all jurisdiction until the case in the court is disposed of, and this, though the court proceedings are based on a claim for land for which application for patent has been rejected by the department, as the finding of the department in such case is not conclusive. Clipper Min. Co., In re, 22 L. D. 527, p. 528. Thomas v. Elling, 25 L. D. 495, p. 496. See Clipper Min. Co. v. Eli Min., etc., Co., 194 U. S. 220. Great Eastern Min. Co. v. Esmeralda Min. Co., 2 L. D. 704. Searle Placer, In re, 11 L. D. 441. Clipper Min. Co. v. Searl, 29 L. D. 137, p. 140. Clipper Min. Co. v. Eli Min., etc., Co., 33 L. D. 660, p. 663. Clipper Min. Co. v. Eli Min., etc., Co., 29 Colo. 377. Where an adverse claim has been filed and an action begun in the proper court, and such action is dismissed either by fraud or mistake, the Land Department can not decide that the action has terminated and issue a certificate to either party, but the court alone in which the case was pending must determine when the controversy is at an end, and until such decision all acts of the Land Office will be ignored. McEvoy v. Hyman, 25 Fed. 539, p. 541. See Richmond Min. Co. v. Rose, 114 U. S. 576. A discrepancy between an adverse claim as filed and accepted in the local office and that upon which suit is instituted in a court will not authorize the Land Department to resume proceedings pending the suit in court. Jamie Lee Lode v. Little Forepaugh Lode, 11 L. D. 391, p. 393. See Bay State Gold Min. Co. v. Trevillion, 10 L. D. 194. Hook v. Latham, 11 L. D. 425. The Land Department will not sustain a motion to dismiss an adverse claim because the same was located after the application for a patent, as it is the duty of the department to determine only whether the adverse claim is made out in due form or properly alleged, and the department is not required to consider what may or what may not be the final action of a court upon such adverse claim. Ovens v. Stephens, 9 C. L. O. 190, p. 191. Where an adverse claim is sufficient upon which to frame a declaration for a proceeding in court and where the issue has actually been carried before a court of competent jurisdiction, the Department will not declare it ineffective and proceed to execute title papers without awaiting judgment of the court. Robinson v. Mayger, 9 C. L. O., 190. Where it appears that action was commenced on an adverse claim within the required time, the department will not, upon technical reasons, interpose objections to an adjudication of the claim by a court. Reed v. Hoyt, 9 C. L. O. 190. The department has no jurisdiction to determine whether a survey showing a conflict is correct or not, but this question is one for a court alone to determine. Stuart Min. Co. v. Wooster, 7 C. L. O. 51. The question as to the validity of an adverse claim can not be determined by the department, as that question is exclusively in the jurisdiction of a local court to be determined under an adverse proceeding provided for by this section. Gowdy v. Kismet Gold Min. Co., 22 L. D. 624, p. 626. Where adverse claimants are not seeking titles to the land, but each is asserting his right to the possession only, the determination of that right is committed by this section to a court of competent jurisdiction alone, as the department has no power to say that a claimant under a relocation has no right as against the original location. Navajo Indian Reservation, In re, 30 L. D. 515, p. 520. The Land Department has no authority to adjudge that a coowner is a trustee and holds in trust for the benefit of the other coowners, but this is a question which must be determined by a court of competent jurisdiction, and such a suit would not be an attack upon the proceedings in the Land Office and the parties in such case would not be compelled to wait until a final patent had been issued, but the department may determine for itself who among contending claimants under the same location is the owner of a mining claim for which a patent is being applied for, and whether or not an applicant is entitled to a patent; but in cases involving disputed claims under a local statute of limitations and questions of fraud the better course is that the parties be given an opportunity to litigate and settle the matter by appropriate judicial proceedings in the local courts, and in such case, if either party commences suit in court, the proceedings in the Land Department will be stayed. Coleman v. Homestake Min. Co., 30 L. D. 364, p. 367 See Malaby v. Rice, 15 Colo. App. 364. The Land Department has no authority to issue two patents for the same ground— one to the placer claimant to all the surface of the ground found by a court to belong to him, and one to the lode claimant for the lode declared to exist in such ground. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641, p. 643. See Pacific Slope Lode, In re, 12 L. D. 686. While the department has the right to determine for itself in each case whether action has been commenced in an appropriate court within the required 30 days, yet it will not undertake to review a decision of a court of competent jurisdiction holding that the suit was so commenced, when the holding involves a construction of a State statute and is a matter of State law. Catron v. Lewisohn, 23 L. D. 20, pp. 23–26. See Richmond Min. Co. v. Rose, 114 U. S. 576, p. 582. De Garcia v. Eaton, 22 L. D. 16. Madison Placer Claim, In re, 35 L. D. 551. Gypsum Placer Claims, In re, 37 L. D. 484, p. 486. 4. DEPARTMENT MUST FOLLOW COURT DECISIONS. Where a dispute does not involve the character of the land or the qualifications of the entryman, or his compliance with the law under which title is sought, the department may properly accept and follow the judgment of a court of competent jurisdiction which determines the respective rights of the contending parties and their interests in the land in controversy; but the department is not required to await the bringing of suit in such case, as there is no obligation upon either party to invoke the jurisdiction of a court, as in case of adverse claims. Coleman v. Homestake Min. Co., 30 L. D. 364, p. 366. See Turner v. Sawyer, 150 U. S. 578. Thomas v. Elling, 25 L. D. 495. Under this section patents may issue to different parties for separate and different portions of a mining claim, as shown by the judgment roll of the proper court. De Witt, In re, 9 C. L. O. 34, p. 35. In an action in ejectment for the possession of a mining claim on the filing of an adverse claim for the possession of a mining claim, it is sufficient where the verdict finds "the defendant guilty," as this implies that the plaintiff was entitled to the possession and that the defendant unlawfully withheld such possession from the plaintiff, and gives the land office the information necessary under this section and under the act of March 3, 1881 (21 Stat. 505). Upton v. Santa Rita Min. Co., 14 N. Mex. 96, p. 113. See Burke v. Mc Donald, 2 Idaho [646] 679. McGinnis v. Egbert, 8 Colo. 41, p. 55. Manning v. Strehlow, 11 Colo. 451, p. 455. Golden Fleece Gold, etc., Min. Co. v. Cable Consol. Gold, etc., Min. Co., 12 5. SURVEYOR GENERAL POWERS AND DUTIES. It seems that the surveyor general has no jurisdiction to decide the respective rights of the parties in case of conflicting claims. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 80. 6. PROCEEDINGS IN DEPARTMENT AFTER TERMINATION OF SUIT After the entry of the judgment proceedings instituted under this section the Commissioner may order a hearing to ascertain the character of the land and whether the law has been complied with, as the judgment proves the right of possession only. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641, See Alice Placer Mine, In re, 4 L. D. 314. p. 643. The final passing of the title is not on the judgment of the court as certified, but is on the judgment of the Commissioner pursuant to the judgment of the court, and on certain evidence supplemental to that furnished by the certified copy of the judgment. Alice Placer Mine, In re, 4 L. D. 314, p. 316. The applicant for a patent for a mining claim or the adverse claimant seeking the benefits of this section must show that he has fully complied with all of its provisions. Cedar Hill Min. Co., In re, 1 L. D. 628, p. 630. On the determination of a suit the claimant must furnish, together with a certified copy of the judgment roll, an official plat showing the discovery, improvements made, tract awarded by the judgment, and an approved copy of the field notes of the survey corresponding to the award under the judgment by metes and bounds, the acreage thereof, and the improvements existing upon the claim. Donlan, In re, 39 L. D. 353, p. 354. See Harsh, In re, 2 L. D. 706. An adverse claimant is only required, after commencement of suit, to establish to the satisfaction of the Land Department that he has complied with the requirements of the mining law by commencing the suit. Bell v. Aitken, 4 C. L. O. 66. See Beatty, In re, 2 C. L. O. 82. This section refers to ground judicially adjudged to belong by right of possession to the adverse claimant, and the assignee of an adverse claimant in the same position as is ordinary, and must furnish evidence of $500 worth of improvements on that portion of the claim formerly in controversy. Jackson Min. Co., In re, 3 L. D. 149. When a mineral claimant has obtained judgment in his favor in a court of competent jurisdiction, he may proceed to take the necessary steps to obtain patent according to the judgment and is not required to wait until the time for appeal has elapsed, but the duty is on the losing party to take an appeal and thereby obtain the further stay of proceedings. Noonan v. Caledonian Gold Min. Co., 10 C. L. O. 167. A compromise and settlement of a suit on an adverse claim must show a particular description of the land to be patented or to be excluded, so a proper description can be inserted in the patent. Belden, In re, 9 C. L. O. 51. It is no objection to an entry awarded in adverse proceedings to certain parts of the ground in conflict embraced therein that such ground was specifically excluded from the application for patent and from the notice thereof. Stranger Lode, In re, 28 L. D. 321. Federal Gold Min., etc., Co., In re, 29 L. D. 71, p. 72. 7. ISSUE OF PATENT PURSUANT TO JUDGMENT. This section provides that a patent may issue to each of several parties for his portion of the claim according to the respective rights as shown by the judgment of the court. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 77. On an adverse claim being filed and the rights determined in a court of competent jurisdiction, the patent may issue pursuant to the judgment; but the final passing of title is not on the judgment of the court independent of that of the Commissioner, but is on the judgment of the latter pursuant to that of the former, on certain evidence supplementary to that furnished by the judgment. Clipper Min., etc., Co. v. Eli Min., etc., Co., 194 U. S. 220, p. 233. After judgment is entered in proceedings commenced under this statute, a patent usually issues in due time, but the patent is issued by the Land Department not on the judgment of the court alone, but on the judgment of the Commissioner pursuant to that of the court on certain evidence supplemental to that furnished by the judgment, as the office of the judgment ends when it determines the right of possession, but the right to a patent is not then established, as the successful litigant must prove by report of the surveyor general that sufficient improvements have been made on the claim, and the Commissioner may further investigate the character of the land. Apple Blossom Placer v. Cora Lee Lode, 14 L. D. 641, p. 643. See Apple Blossom Placer v. Cora Lee Lode, 21 L. D. 438. 8. DEPARTMENTAL REGULATIONS. The Commissioner of the General Land Office is authorized to make and enforce regulations in reference to mining claims which are appropriate and within the limitations of law. Anchor v. Howe, 50 Fed. 366, p. 367. The authority to the Commissioner of the General Land Office to make rules and regulations applicable to mineral lands is not a grant of power to legislate, to add to the law, or to render its enforcement difficult, or to burden the proceedings with unnecessary hardship, and is designed to permit regulations simplifying and explaining the administration of the law. Anchor v. Howe, 50 Fed. 366, p. 367. Departmental regulations in conflict with the law are invalid, and those which enlarge its requirements, though not in exact conflict with it, must likewise be disregarded. Anchor v. Howe, 50 Fed. 366, p. 367. Kinney v. Von Bokern, 29 L. D. 460, p. 461. The requirement that an adverse claimant shall notify the Land Office of the commencement of suit is an office regulation, and the failure to do this can not work forfeiture of right or justify the office in ignoring the law. Halsey v. Hewitt, 5 C. L. O. 162. E. PATENT-EFFECT. A patent conveying the legal title must prevail over all other claims. Richmond Min. Co. v. Rose, 114 U. S. 576, p. 581. On the issue of a patent for a mining claim the legal title passes from the United States. United States v. Marshall Min. Co., 129 U. S. 579, p. 587 The dignity and character of a patent is such that the patentee can not be called upon to prove the regularity of the steps before the Land Department, nor can he be called upon to explain the irregularities or improprieties in the processes by which the patent was secured, where the Government has not been injured or damaged. United States v. Marshall Min. Co., 129 U. S. 579, p. 589. A patent granting on its face to a claimant the right to all veins, lodes, and deposits, the tops or apices of which lie inside the end lines of its surface as patented, settles the rights of all parties as to all such veins throughout their entire depth and wherever they may go, so long as they are within the end lines of the survey. Richmond Min. Co. v. Eureka Min. Co., 103 U. S. 839, p. 847. The issuance of a mining patent is in effect an adjudication of all questions respecting matters which might have been the subject of an adverse claim, and on failure to adverse, the question of priority of title is conclusively presumed. Hickey v. Anaconda Copper Min. Co., 33 Mont. 46, p. 63. See Empire State, etc., Min., etc., Co. v. Bunker Hill, etc., Min., etc., Co., 114 Fed. 417, p. 420. When the rights of an adverse claimant have been determined according to this section and a patent issued pursuant to its provisions it furnishes the highest and best evidence of title which a party can obtain, and a patent issued without authority of law conveys no substantial title. Rose v. Richmond Min. Co., 17 Nev. 25, p. 61. See Eureka Consol. Min. Co. v. Richmond Min. Co., 8 Fed. Cas. 819. After patent is issued for a mining claim the question of the date or priority of location can only arise in seeking to apply the doctrine of relation in connection with a patent for the purpose of determining the ownership of minerals at the point of union or intersection of veins. Hickey v. Anaconda Copper Min. Co., 33 Mont. 46, p. 64. A party can not remain silent for more than eight years after a decision against him, though erroneous, and then seek to correct such errors by a bill in chancery, either to obtain title to a mining claim or to contest the patent issued to another locator. United States v. Marshall Min. Co., 129 U. S. 579, pp. 587, 588. A foreign corporation has the right to purchase a patent issued to a citizen of the United States for a mining claim and by such purchase take all the rights and is entitled to all the privileges that would accrue to the original patentee. Ramage, In re, 2 C. L. O. 115. F. LAVAGNINO v. UHLIG. 1. COMMENTS AND CRITICISMS. The case of Lavagnino v. Uhlig, 198 U. S. 443, was one of adverse proceedings against an applicant for patent, and the decision being based on the section regulating such proceedings anything the court said regarding the rights or forfeiture of an applicant in such proceedings may be considered as dictum, and to enforce all the statements in that opinion in cases generally would necessitate the setting aside of the provisions in other sections. Nash v. McNamara, 30 Nev. 114, p. 138. This case was examined and criticized in Montagne v. Labay, 2 Alaska 575, and it was there held that the case applies only in adverse proceedings and only in its own limited sphere to exceptional facts and that former cases declaring a contrary doctrine were not overruled. Nash v. McNamara, 30 Nev. 114, p. 140. |