§ 733. Final entry upon the judgment.-Upon the final determination of an adverse suit, the successful party is required by the statute and rule of the land department to file in the land office, without giving further notice, a certified copy of the judgment or decree, with other necessary papers and evidence, and thereupon to enter and pay for his claim, or such portion thereof as such judgment or decree shall show him rightly to possess, and thereupon patent will be issued to him accordingly in due course.' Where the decision shows several parties to be entitled to different portions of the claim, each party may likewise enter and pay for his portion of the claim, provided he has previously made proper application therefor. The later rules of the department require either party that desires to make entry, pursuant to the judgment in an adverse suit, to file a certified copy of the judgment with other evidence showing compli ance with the law. This rule is consonant with reason. The matter having been by law relegated to the courts for adjustment, the judgment of the court should be brought in to show what was decided, and is conclusive. § 734. Additional proof may be required by land department. Because the judgment in an adverse suit, after the time for appeal has passed, or as finally determined in case of appeal, is favorable to either party,3 it does not necessarily follow that the parties to it, or either of them, are entitled to a patent for their respective claims. It is still the duty of the land department to require proof that the law has been complied with in respect to matters not necessarily raised in the adverse suit, as, for instance, the certificate of five hundred dollars' improvements. And where the adverse claimant is the successful party and seeks patent for his claim, if he has not already done so, he must take all the steps in the application for patent that are required of the IR. S. U. S., § 2326; L. O. Cir., Min. Lands, 187; Alice Placer, 4 July 26, 1901, §§ 85-87. L. D. 314; Taylor, 9 C. L. O. 92. 2 Id.; Evans v. Rendell, Copp's 3 Ante, § 730. original applicant, with the exception that where his claim was officially surveyed by a United States deputy mineral surveyor prior to the time of filing his adverse claim, he will not be required to go to the expense of a resurvey.1 To the foregoing should be added this exception: Where the entire claim has been involved in an adverse claim no notice should be required. § 735. Summary - The doctrine of this chapter restated. From the foregoing outline of the law applicable to proceedings in court, trial and judgment in adverse proceedings, we are justified in extracting the following conclusions: (1) The law confers no new jurisdiction upon any court, but simply requires that the rights of the parties be litigated in a court of competent jurisdiction. Both the authorities and the reason of the thing unite upon the proposition that the federal court and the state courts have concurrent jurisdiction over these cases where there is a diversity of citizenship, and that it will only be removed from the state court to the federal court on the grounds of diversity of citizenship, and where the value of the land will give the court jurisdiction. The purpose of the ac The nature of the action is peculiar to the jurisdiction; in some courts in the form of ejectment, and in other courts in the form of an action to quiet title. The latter rule prevails in the federal court. tion is to determine which party has the better title and is first in time, and likewise which, if either, is entitled to a patent. There seems to be no inherent right to a jury trial of these issues. (2) The pleadings, of course, are framed with reference to the character of action intended to be brought, and are 1 Perego v. Dodge, 163 U. S. 158, 168; Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683; Alice Placer, 4 L. D. 314; Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95; Evans v. Rendell, Copp's likewise peculiar to the jurisdiction. These actions are the only ones authorized by the law wherein the citizenship of the applicant is a material issue. In these cases citizenship must be alleged and proven. The adverse claimant may and generally must unite in one action, in separate counts, however, as many adverse claims as he has against the one application. Manifestly all must relate to the same parties and not require different places of trial, and the complaint must also show a previously filed adverse claim, and that thirty days have not elapsed since its filing, and that the action is in support of the same. (3) The burden of proof is upon the adverse claimant, but where a forfeiture is claimed upon either side, the burden is upon the one asserting it. The general rule may be stated that the older in time is the stronger in right, provided a compliance with the statute is shown. (4) The findings and judgment of course must be within the scope of the pleadings, and the findings of fact or verdict of the jury must show which, if either, party has complied with the law and is entitled to a patent. And if neither party is entitled to a patent the action must be dismissed. A judgment of dismissal may also be entered for a failure to prosecute with diligence. (5) The judgment is conclusive as between the parties as to all matters actually litigated or which might have been litigated under the pleadings. It is conclusive as to the date of the location as decided by the judgment. The effect of the judgment that neither party is entitled to a patent does not restore the land to the public domain, but simply decides that upon the showing made neither party is entitled to a patent. The same result is had where the land department of its own motion refuses a patent; the matter is not thereby res judicata, and in either case the defect may be cured and a patent afterwards granted upon the renewed application. Notwithstanding the judgment the land department may require proof of other facts, as the five hundred dollars' improvement or the like, before issuing the patent. CHAPTER IV. OF THE PATENT AND ITS VALUE ARTICLE A. Conclusive as to What. § 737. Of the definition of, and different kinds of patents, and of the authority of the statute, and its observance in their issuance. 738. Of the extent of right or title conveyed by a patent affecting mineral lands-Different patents and their important features Limitations and reservations. 739. General effect and value of patent - Confirms existing title — Non-mineral patent carries minerals. 740. Conclusiveness generally. 741. Presumption of regularity in land office proceedings. 742. Same As to character of land- Citizenship. -- 743. Relation of acts included in patent- Relates to location - Rights as between patented and unpatented ground. 744. In case of variance between calls of patent and monuments on the ground, the latter controls. $737. Of the definition of, and different kinds of patents, and of the authority of the statute, and its observance in their issuance. The patent for a mining claim is the conveyance whereby the government parts with the legal title to the land, with the appurtenant rights, in accordance with the statute. It is not within the scope of this work to make a detailed examination as to the law of land patents; that should be the subject of a separate work. The patent is but the creature of the statute, and those who issue it are but the servants of the same law; whence it follows, as we shall have occasion to particularize in the proper places, the patent in the scope of both grant and reservation can only follow the law; a mere grant of the land, with specific ref erence to the purpose of the grant, and the law under which it is made, will be just as effectual to convey all the statute authorizes, and make all the reservations it requires, as it would be if those were copied at length therein. In other words, while the better rule undoubtedly is to insert in a patent all the essential rights granted, as authorized by the law, and all the rights reserved to others, or to the United States and its grantees, as required by the same law, for the obvious reason that only those provisions on either side, which the law authorizes, can be effectively inserted, the clerical omission to insert clauses in the patent manifestly required by law, or the improvident insertion of clauses not authorized or required, cannot affect the patent. For example, when the law says that the owner of the apex of a vein, properly located, has the right to follow the same on its downward course into the land adjoining, which land shall be sold subject to that right, it becomes an exception or reservation out of that land, provided the adjoining land is sold after the mineral land; and it is of no moment whether the limitation is inserted in such grant or not. Since the officers of the government could not by the misapplication of words abridge or deny the right given by the law, it is conceived as a necessary corollary that the entire omission of a reservation which the law makes, would not affect the right to assert it. The patent is rather the evidence of the confirmation of a right granted by the law than the abstract granting of the right itself. So each patent is construed as of its own date; and while it is said nothing not granted in express terms passes by the patent, yet, if the sections of 1 Sullivan v. Iron Silver M. Co., 143 U. S. 431, 36 L. ed. 214; Iron Silver M. Co. v. Reynolds, 124 U. S. 374, 31 L. ed. 466; Davis v. Weibbold, 139 U. S. 507, 35 L. ed. 238; Amador Medean G. M. Co. v. South Spring Hill G. M. Co., 36 Fed. Rep. 668, and cases. See also post, §§ 754-61; ante, 666; English v. Railway Co., 23 L. D. 343; Edwin F. Frost, 24 id. 2 Ledbetter v. Borland (Ala.), 29 So. Rep. 579, and cases cited; Davis v Weibbold, supra; Talbott v. King, 6 Mont. 76, 9 Pac. Rep. 434; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378, 5 Pac. Rep. 570. 3 Pacific Coast M. Co. v. Spargo, 16 Fed. Rep. 348. 4 Barden v. N. P. R. R. Co., 154 U. S. 288. |