But, by the very terms of the act, it was provided that "the same shall be open to settlement and entry by the proclamation of the President of the United States."

[3] The following are the only rules of the Land Department called to our attention:

"Rule 51. Upon the termination of a contest the register and receiver will render a joint report and opinion in the case, making full and specific reference to the postings and annotations upon their records.

"Rule 52. The register and receiver will promptly forward their report, together with the testimony and all the papers in the case, to the commissioner of the general land office, with a brief letter of transmittal, describing the case by its title, the nature of the contest and the tract involved.

"Rule 53. The local officers will thereafter take no further action affecting the disposal of the land in contest until instructed by the commissioner."

These rules clearly, refer only to contests arising out of entries of land initiated in a local land office and in which the contest also originated in that office. These rules have no application to mining claims, for the reason that mining locations are not initiated in any local land office of the government, but take their origin under authority of the United States statutes "under regulations prescribed by law, and according to the local customs or rules of miners, in the several mining districts so far as the same are applicable and not inconsistent with the laws of the United States." (Rev. Stats., sec. 2319, [U. S. Comp. Stats., sec. 4614; 2 Fed. Stats. Ann., 2d ed., p. 1198].) This act provides "that all valuable mineral deposits in land belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States." And this has been the law since the acts of July 26, 1866, c. 262, 14 Stat. 251, and May 10, 1872, c. 152, 17 Stat. 91. Under this invitation and authority the prospector may go on to any of the public lands of the United States and make his explorations and upon the discovery of valuable minerals and in order to secure his title to the same he need only to post his notice, stake out his claim and file his notice in

the office of the recorder of the mineral district or in the office of the county recorder "according to the local customs or rules of miners in the several mining districts." He has nothing to do with the local land office in perfecting his claim or in working it. He may never apply for a patent to his claim, and until he does so apply no notice to the general government is required of him that he has made a claim. By the performance of one hundred dollars' worth of work annually on his claim he can hold it and work it against the claim of the whole world and for an indefinite period. It is common knowledge that many valuable mines are worked out under such locations for which patents are never applied. In this respect the locator of a mining claim stands on a wholly different footing from the homesteader or pre-emptor of public land.

Under the location claimed by plaintiffs this mining land has been occupied and worked ever since 1898 and many thousands of dollars have been expended in its exploration and development. Defendants in 1914, sixteen years after this location was made in good faith and kept alive with equal good faith, entered upon the claim, dispossessed plaintiffs, and seek to maintain their right upon what, we think, is an erroneous construction to be given the effect of the decree canceling the Railroad Company's patent and upon regulations of the general land office, which, we think, wholly inapplicable.

[4] Respondents call attention to the fact that the Land Department at Washington has issued a patent to a mining claim, being a part of the section in question and located under circumstances similar to those under which respondents are claiming. And it is urged by respondents that this is virtually an admission by the government that such locations were regular and authorized. As to this appellants say: "We do not agree that the issuance of patents to other parties, particularly without contest, can be taken as an adjudication on any point whatever." Appellants are, no doubt, right in holding that the action of the Land Department in the case mentioned is not at all conclusive in the present case. But it must be admitted that the Land Department would not have been likely to pass to patent a claim which on its face would show that it was prematurely made, and, therefore, void, even if there was no contest.

However this may be, we do not base our conclusion in any degree upon the action taken in the case mentioned. Both parties concede that no case has been found in which the question now here has been decided by any court, and we have found none. We are satisfied that the location under which plaintiffs claim title and right of possession was authorized and legal, though initiated before time for appeal from the decree of the federal court had expired.

The judgment is affirmed.

Burnett, J., and Hart, J., concurred.

[Civ. No. 1950. Third Appellate District.-July 1, 1919.] CRENSHAW BROS. and SAFFOLD (a Partnership), Respondents, v. SOUTHERN PACIFIC COMPANY (a Corporation), Appellant.

[1] APPEAL FINAL JUDGMENT-ISSUANCE OF REMITTITUR-POWER OF COURT TO RECALL AND MODIFY JUDGMENT.-Where the judgment on appeal has become final, the appellate court has no power to recall the remittitur and amend or modify the judgment where it is not claimed that there was fraud, or that the court was imposed upon or that, by its judgment, it inadvertently failed to state which party should pay the costs of the appeal.

[2] ID.-EFFECT OF JUDGMENT-MISAPPREHENSION OF COUNSEL.-Misapprehension of counsel for respondent in assuming that a judgment of the appellate court reading, "and, as thus modified, the judgment is affirmed," meant that the judgment of the superior court was affirmed in every particular, except the amount recovered thereunder, and that under rule XXIII of the appellate courts respondent would recover his costs on appeal, furnishes no ground for recalling the remittitur and setting aside the judgment and amending it in any particular after the judgment has become final and the remittitur gone down.

[3] ID.-EFFECT OF SECTION 473, CODE OF CIVIL PROCEDURE-EXERCISE OF DISCRETION AFTER JURISDICTION LOST.-While section 473 of the Code of Civil Procedure gives the court wide discretion "to relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect," this discretion cannot be exercised in a case where the court has lost its jurisdiction.

APPLICATION for an order recalling the remittitur, and to correct the judgment of the District Court of Appeal. Denied.

The facts are stated in the opinion of the court.

Arthur L. Levinsky for Appellant.

L. T. Hatfield for Respondent.

CHIPMAN, P. J.-This is an application for an order recalling the remittitur, and, also, to correct the judgment of this court in the action made on the eighth day of April, 1919.

The judgment of the lower court from which the appeal was taken was for the principal sum of $3,163.50, with interest thereon at the rate of seven per cent per annum, as follows: . . . In reviewing the case, this court reached the conclusion that the amount of recovery should be the sum of $1,528.06, with interest thereon at the rate of seven per cent per annum, as follows: . . . thus modifying the judgment and reducing the principal in the sum of $1,635.44. The plaintiff in the action petitioned the supreme court for a hearing in that court, which was on June 5, 1919, denied. No petition for rehearing in this court was filed and no motion made to correct the judgment of this court, either as to the amount found to be due plaintiff from defendant or as to the matter of costs on the appeal. The matter stood thus until June 13, 1919, when the present application was filed.

It appears from the application that after the remittitur was received and filed by the clerk of the lower court appellant served its cost bill upon respondents' attorney, who thereupon came to this court for the relief asked.

Section 1027 of the Code of Civil Procedure provides as follows: "The prevailing party on appeal shall be entitled to his costs excepting when judgment is modified, and in that event the matter of costs is within the discretion of the appellate court . . . Rule XXIII, 177 Cal. liii, [176 Pac. xi], provides that: "In all cases in which the judgment or order appealed from is reversed or modified, and the order of reversal or modification contains no directions as to the

costs of appeal, the clerk will enter upon the record, and insert in the remittitur, a judgment that the appellant recover the costs of appeal. In all cases in which the judgment or order appealed from is affirmed, the clerk will enter upon the record, and insert in the remittitur, a judgment that the respondent recover the costs of appeal."

[1] The clerk of this court acted in obedience to this rule in issuing the remittitur and the rule itself is authorized by the statute. The supreme court in Granger v. Sheriff, 140 Cal. 190, 195, [73 Pac. 816, 818], said: "Under the constitution by the lapse of time, and the issuance of the remittitur, the judgment has become a finality beyond the power of the court to modify or amend (Martin v. Wagner, 124 Cal. 204, [56 Pac. 1023]) and the jurisdiction of the supreme court ends. (Herrlich v. McDonald, 83 Cal. 505, [23 Pac. 710]; In re Levinson, 108 Cal. 450, [41 Pac. 483, 42 Pac. 479]). When the remittitur is filed with the clerk with whom the judgment-roll is filed the jurisdiction of the superior court attaches." In the case, In re Levinson, supra, a motion was made to recall the remittitur for the purpose of securing a modification of the direction made therein for the payment of the costs of the appeal. The court said (109 Cal. 459, [42 Pac. 479]): "Without reference to the merits of the motion it comes too late. The remittitur was regularly issued on September 6, 1895, and this. motion was not noticed until October 18th following. If respondent desired a modification of the judgment in any respect, the proper application should have been made before the going down of the remittitur. (Gray v. Palmer, 11 Cal. 341.) When the remittitur has been duly and regularly issued, without inadvertence, we have no power to recall it. This court therefore loses jurisdiction of the cause, except in a case of mistake, or fraud or imposition practiced upon the court, neither of which elements appear in this case. (People v. Sprague, 57 Cal. 147; Rowland v. Kreyenhagen, 24 Cal. 52.)" (See Trumpler v. Trumpler, 123 Cal. 248, [55 Pac. 1008].)

In Martin v. Wagner, 124 Cal. 204, [56 Pac. 1023], cited in Granger v. Sheriff, 140 Cal. 190, 195, [73 Pac. 816, 818], the court said: "Where fraud or imposition has been practiced upon this court in procuring its judgment, the remittitur will be recalled and jurisdiction will be reasserted upon.