the quarter section of which the lot in controversy was a part, and a patent was issued to him by which the United States granted to him and to his heirs, subject to the rights of any and all persons claiming under the act of congress aforesaid. It was held that the saving clause was designed to exonerate the United States from any claim of the patentee in the event of his ouster by persons claiming under the act of congress, and cannot be construed as separating any lots or parcels of land from the operation of the grant; and that the patent does not impose upon the patentee any duty to recognize these claims, but only requires him to accept the title of the United States with knowledge that such claims exist, and that they do not intend to deny or to destroy them, nor to defend his title against them.

There had been no survey of the lots and no reservation of them from sale as a part of the public lands at the time. Ballance made his entry for the quarter section and received his patent. Whether the lots would ever be surveyed and designated so that the claimants could assert their title, or whether they would assert title after a survey had been made, was unknown, and so it was held that the patent conveyed a fee simple title. Says justice Clifford, in Dredge et al. v. Forsyth, 2 Black, 569, which is a similar case to that of Meehan v. Forsyth: "When the patent under which defendants claim was issued, no survey of any lots granted to the inhabitants or settlers in the village of Peoria, had been made. Those persons, therefore, held but an inchoate right, which must first be surveyed and designated before the right granted to them would supercede the title acquired under the defendant's patent. They might never make any claim, and in that event the other title would prevail. Consequently, this court held, in Bryan et al. v. Forsyth, 19 How., 338, that, subject to that contingency, the patentee, under whom the defendants claim, took a title in fee till 1840, when the title to the village lots was, by survey and designation then made, ripened into a better title.'

And so it was only the lack of survey, designation and claim by the lot owners that caused the court to hold the quarter section patent the better title. If the lots had been surveyed and designated,

the right granted to them would supercede the title acquired under the patent." Suppose these lots had been a mining location previously granted and sold by the government to the locator, valid in every way, and distinctly marked and recorded, then, according to this authority, the mining claim title would supercede that of the town site patent. But suppose again that congress had declared that title to these lots should never be acquired by virtue of any quarter section entry for patent, and had provided by law the manner in which the lot owners might procure a conveyance of the government title, could it be then held that the patent conveyed a feesimple title to the lots when they were expressly reserved from the granted premises? We do not think a patent good for anything that

attempts to convey land that the law declares shall not be conveyed by patent.

In these Peoria town lot cases there was no question, and could have been none, as to the right or authority to issue the patent for the quarter section. No one could have objected, or set up an adverse claim. The lots had not been surveyed. There was nothing upon which the lot claimants could base a claim. The patent was issued in pursuance of law and not in violation of the law. The land department had the right to issue it, and the patentee to receive it. He took it subject to the right of the lot owners or claimants, if they ever should make and sustain a claim. But this case is to be distinguished from one where the patent issues without authority of law, and certain grounds are included within its boundaries, in express violation of the statute. The land department is only authorized to issue patents to the probate judge for town site purposes on the public lands not previously granted and sold or reserved from sale. More than this: the act authorizing the conveyance of town sites to the probate judge forbids the land department to include in the town site patent any mine, mining claim or possession. If the land department had no authority to issue the patent, or if it was issued for land previously granted or reserved from sale, the patent is so far void. In the case of Morton v. Nebraska, supra, the supreme court of the United States says: "It has been repeatedly decided by this court that patents for lands which have been previously granted, reserved from sale, or appropriated, are void. The executive officers had no authority to issue a patent for the lands in controversy, because they were not subject to entry, having been previously reserved, and this want of power may be proved by a defendant in an action at law."

In Steel v. Smelting Co., supra, the same court says: "If the lands were never the property of the United States, or if no legislation authorized their sale, or if they had been previously disposed of, or reserved from sale, the patent would be inoperative to pass the title, and objection to it could be taken on these grounds at any time and in any form of action. In that respect, the patent would be like the deed of an individual, which would be inoperative if he never owned the property, or had previously conveyed it, or had dedicated it to uses which precluded its sale:" Smelting Co. v. Kemp, 104 U. S., 644; Patterson v. Winn, 11 Wheat., 380; U. S. v. Tickner, 12 Fed. Rep., 415; New Orleans v. U. S., 10 Pet., 662; Reichart v. Phelps, 6 Wall., 160; Best v. Polk, 18 Wall., 112; Stoddard v. Chambers, 2 How., 284; Polk's Lessees v. Wendell, 9 Cranch, 99.

Before the patent for the town site had issued, the Pawnbroker mining claim had been granted and sold, and thereby withdrawn and taken from the public lands, and the executive officers therefore had no authority to include in the town site patent the lands so disposed of; and if the town site patent includes such lands and the fee thereof, as appellants contend, it is, so far and to that extent,

It is claimed, however, that town site rights are excepted from the Pawnbroker patent and, therefore, that such patent does not convey to the grantees therein any of the surface ground of the Pawnbroker mining claim. If this exception was authorized by law, it is valid; but if not authorized and the executive officers had no authority to make it, it is void and does not affect the grant.

A patent relates back to the right. A patent for a mining claim relates back to the location and is the consummation of the purchase then made. No unauthorized act of the land officer in issuing the patent can defeat this title. In Stark v. Starrs, 6 Wall., 418, the supreme court of the United States says: "The patent relates back to the inception of the right of the patentee, so far as it may be necessary to cut off intervening claimants." The patent being but confirmatory of the title by location, the patentee obtains the same right under it that he would have obtained if the patent had issued immediately after the location and compliance with the terms of the statute. In the Eureka case, 4 Sawyer, 317, the court says: "All these patents are founded upon previous locations taken up and improved according to the customs and rules of miners in the district. Each patent is evidence of a perfected right in the patentee to the claim conveyed, the initiatory step for the acquisition of which was the original location. If the date of such location be stated in the instrument or appear from the record of its entry in the local land office, the patent will take effect by relation as of that date, so far as may be necessary to cut off all intervening claimants, unless the prior right of the patentee by virtue of his earlier location, has been lost by failure to contest the claim of the intervening claimants as provided in the act of 1872. As in the system established for the alienation of the public lands, the patent is the consummation of a series of acts having for their object the acquisition of the title, the general rule is to give to it an operation by relation at the date of the initiatory step, so far as may be necessary to protect the patentee against subsequent claimants of the same property. As was said by the supreme court in the case of Shipley v. Cowan, 91 U. S., 338, where two parties are contending for the same property, the first in time in the commencement of proceedings for the acquisition of title, when the same are regularly followed up, is deemed to be the first in right:" Smelting Co. v. Kemp, 104 U. S., 647; Ross v. Bolard, 1 Pet., 655; Hydenfeldt v. Daney Co., 93 U. S., 634: Tayler v. Brown, 5 Cranch, 234.

The action of the land department in issuing patents for the public lands, is conclusive as to the legal title, when acting within the scope of its authority. In the case of Steel v. Smelting Co., upra, the court says: "The land department, as we have repeatedly said, was established to supervise the various proceedings whereby a conveyance of the title from the United States to portions of the public domain is obtained, and to see that the requirements of different acts of congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant,

the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale, Its judgment upon these matters is that of a special tribunal, and is unassailable, except by direct proceedings for its amendment or limitation. Such has been the uniform language of this court in repeated decisions.

In Johnson v. Towsley, the effect of the action of that department was the subject of special consideration; and the court applied the general doctrine, "that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others; that the action of the land officer in issuing a patent for any of the public lands, subject to sale by pre-emption or otherwise, is conclusive of the legal title, must be admitted under the principle above stated; and in all courts, and in all forms of judicial proceedings, where this title must control, either by reason of the limited powers of the court or the essential character of the proceeding, no inquiry can be permitted into the circumstances under which it was obtained: 13 Wall., 72; French v. Fyan, 93 U. S., 169; Quimby v. Cowlan, 104 U. S., 104; Vance v. Burbank, 101 U. S., 514; Beard v. Federy, 3 Wall., 478; Moore v. Wilkinson, 13 Cal., 478.

These presumptions as to the conclusiveness of a patent and the title it conveys, are confined to matters over which the land department has jurisdiction; it must act within the scope of its authority and as authorized by law. If it goes beyond its jurisdiction the patent would be so far void, and this may be shown in an action at law.

In the case of the Smelting Co. v. Kemp, supra, the court says: "Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them; and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would, in that event, be like that of any other special tribunal, not having jurisdiction of a case which it assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law:" Polk's Lessees v. Wendell, 9 Cranch, 99; Patterson v. Winn, 11 Wheat., 380; Hoofnagle v. Anderson, 7 Wheat., 212; Boardman v. Lessee of Reed, 6 Pet., 328; Bognell v. Broderick, 13 Pet., 463; Moore v. Robins, 96 U. S., 530.

The principles enunciated in these cases apply with much force to a case where the land office, without authority of law, inserts an exception into the granting part of a patent, that the law does not

authorize, whereby the title of the patentee is departed. The Pawnbroker mining claim, at the time of the issuance of the patent therefor, was a valid claim and possession under existing laws of congress, and the patentee was entitled to the exclusive possession and enjoyment of all the surface ground thereof. There was no law depriving him in any manner of the right to such possession. He had purchased the property and paid for it, and was entitled to a conveyance of the full and complete title. As between individuals he stood in a position to compel such a conveyance. There was no law authorizing the land department to except the surface ground from the conveyance or in any other manner to abridge the title of the purchaser, and in so doing it exceeded its authority, and its act, to that extent, is void and of no effect upon the property conveyed. An exception that is void leaves the patent to stand as though it contained no such exception: Stark v. Starrs, supra.

In Wolfley et al. v. Lebanon Mining Co., 4 Col., 115, it is held that if the patent is broader than the law, it is to that extent ineffectual, and on the same principle, if it is narrower than the law, and contains unauthorized exceptions, whereby the grant is unlawfully abridged and contracted, such exceptions would be ineffectual to defeat the full title. And if the exception when read in the light of existing law is seen to be ineffectual and void, it may be so declared in an action at law. But whatever may be the terms of the Pawnbroker patent, and whether it conveys the full title of respondents or not, the town site patent under which appellants claim, by its terms, and by the express provisions of the statute under which it was issued, forbids the acquisition of any title or right to any mining claim by virtue of such patent. And so, if the Pawnbroker patent should fail, and the Pawnbroker mining claim remained a valid location under existing laws of congress, the appellants would acquire no right or interest therein by virtue of the town site patent. If a mining claim patent relates back to the location, as the authorities declare that it does, then there could be no merger in the patent, so as to let in intervening claimants between the location and the patent. It is difficult to see how a greater title could be merged in a lesser one. If by exceptions and reservations, the patent becomes the lesser title, still it relates back to the location, and does not destroy it. The location supports the patent, and the title by the patent ought to be as broad as the title by location, and a continued compliance with the law, and always will be, unless cut down and abridged by unlawful exceptions and reservations; and these do not affect the grant of title evidenced by the patent. The patent of a mining claim when drawn according to law is evidence of a perfected right in the patentee. It is the consummation of a series of acts, having for their object the acquisition of title, and if it contains exceptions and reservations not authorized by law, these will be disregarded in an action at law, so that the patent may stand and be sustained as the evidence of a perfected title in the patentee. The judgment is affirmed.

All concurred.