clusive of all matters pertaining to the character of the land § 743. Relation of acts included in patent-Relates to Parley's Park M. Co. v. Kerr, 130 1St. Louis Sm. & Ref. Co. v. 2 Justice M. Co. v. Lee, 21 Colo. Aspen Smelting Co., 52 Fed. Rep. 3 Ante, SS 741 and 742; 420 M. 4 St. Louis S. & R. Co. v. Kemp, Heydenfeldt v. Daney G. & S. flicts not raised and decided adversely to its holder prior to its issuance. But it is only when controversies arise affecting certain conflicting sub-surface rights between neighboring proprietors, and in conflicts between overlapping patents, that the question of priority of location becomes material;1 and in such proceedings the patent relates to the date of location.2 But in a recent case, where there were two filings upon the same piece of coal land by different parties, one of which was canceled, and patent issued upon the other, the parties had each mined coal from different parts of the premises, pending a decision of their contest. After its determination the successful party sought to have this rule applied so as to date his rights from the filing of his declaratory statement, in order to compel an accounting from the other for the coal mined, and the circuit court of appeals for the eighth circuit held that his rights dated from the issuance of the receiver's receipt. This, however, was upon a coal entry, where no previous location is necessary; and while we think the right should relate to the date of filing the declaratory statement, yet, even if it is properly decided, it is no authority for a similar rule as to either lode or placer claims, as they give just as complete and perfect rights without a patent, by possession and work, as if patented. § 744. In case of variance between calls of patent and monuments on the ground, the latter control. The fieldnotes of the surveyor are presumed to be made with reference to the monuments on the ground, and, when so made, of course they should correspond; and when the patent is 1 Iron Silver M. Co. v. Campbell, 17 Colo. 367, 29 Pac. Rep. 513; Eureka M. Co. v. Richmond M. Co., 4 Sawy. 302, 8 Fed. Cas. 819; Champion M. Co. v. Cons. Wyoming M. Co., 75 Cal. 78, 82, 16 Pac. Rep. 513, 515; Kahn v. Old Telegraph M. Co., 2 Utah, 174; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478. 2 Last Chance M. Co. v. Tyler M. Co., 157 U. S. 583. Evans v. Durango C. & L. Co. (C. C. A.), 80 Fed. Rep. 433. 4 Champion M. Co. V. Cons. Wyoming M. Co., supra. issued it should describe the land with reference to the field-notes of the surveyor on file. It sometimes happens, however, that the calls in the patent do not agree with the monuments on the ground, and whenever there is a discrepancy of this nature the monuments on the ground must prevail. Of course this rule has reference to monuments which have always remained on the ground since first placed there; and where it appears that they have not remained in place, or where there is as much doubt as to where the monuments were first located as there is whether the course is correct, it has no application.2 ARTICLE B. Direct and Collateral Attack and Incidents Thereof. § 746. Generally free from collateral attack. 747. Conflicting patents within the rule ents not conveying minerals. Town-site and other pat 748. Patent- How and by whom set aside. 749. Manner of proceeding to have patent annulled or set aside for fraud - Must apply to commissioner. 750. Nature of the action - Time. 751. Burden of proof. 752. When patentee trustee. 753. Summary. § 746. Generally free from collateral attack.— As a general rule, the patent is not open to collateral attack in ordinary actions between individuals. In such actions it is absolutely unassailable so far as it involves the character, quality and shape of the land, the citizenship and other 1 Los Angeles Farming & Milling Co. v. Thompson, 117 Cal. 594, 49 Pac. Rep. 714, 717; Adair v. White, 85 Cal. 313, 24 Pac. Rep. 663, 664. 2 Thallman v. Thomas, 102 Fed. Rep. 935. 3 Meyendorf v. Frohner, 3 Mont. 282; Butte City Smoke-House Lode Cases, 6 Mont. 359, 12 Pac. Rep. 858; Jeffords v. Hine (Ariz.), 11 Pac. Rep. 4 Waterloo M. Co. v. Doe, 56 Fed. qualifications of the patentee and his predecessors and grantors, which are matters open to attack only by the government in a proper proceeding, and upon the grounds of any supposed defects or infirmities not appearing on its face." Where, however, it is shown to be void on its face, from statements or recitals appearing therein, or where, from similar statements or recitals, it appears that the land department had no authority or jurisdiction to dispose of the land described, or where the land department has inserted unauthorized conditions or reservations, or where for any other reason it fails, unaided by extrinsic evidence, it may be impeached collaterally in any proceeding. § 747. Conflicting patents within the rule-Town-site and other patents not conveying minerals.- Wherever a mining patent conflicts with another patent, whether it be the overlapping of two mining claims, by reason of erroneous or fraudulent survey, a lode claim overlapping a 1 Billings v. Aspen M. & S. Co., 51 Fed. Rep. 338; on rehearing, 52 Fed. Rep. 250; Justice M. Co. v. Lee, 21 Colo. 260, 40 Pac. Rep. 444; New Dunderburg M. Co. v. Old, 79 Fed. Rep. 598; Golden Reward M. Co. v. Buxton, 79 Fed. Rep. 868. 2 Meyendorf v. Frohner, 3 Mont. 282; Jeffords v. Hine, 11 Pac. Rep. 351. 3 Ante, § 741, note 3, p. 643; French v. Fyan. 93 U. S. 169; St. Louis Sm. & Ref. Co. v. Kemp, 104 U. S. 636; Wright v. Rosebury, 121 U. S. 488; United States v. Schurz, 102 U. S. 378; Johnson v. Towsley, 13 Wall. 76; Montana Central Ry. Co. v. Migeon, 68 Fed. Rep. 811. 4 St. Louis Sm. & Ref. Co. v. Kemp, supra; Morton v. Nebraska, 21 Wall. 660; Kahn v. Old Telegraph M. Co., 2 Utah, 174; Champion M. Co. v. Cons. Wyoming M. Co., 75 Cal. 78, 16 Pac. Rep. 514; Cullacott v. Cash G. & S. M. Co., 8 Colo. 179, 6 Pac. Rep. 211; Ledbetter v. Borland (Ala.), 29 S. Rep. 579. 5 Deffeback v. Hawke, 115 U. S. 392; Davis v. Weibbold, 139 U. S. 509; Doolan v. Carr, 125 U. S. 618; Lakin v. Dolly and Lakin v. Roberts, 53 Fed. Rep. 333; Parley's Park S. M. Co. v. Kerr, 130 U. S. 261; Hardin v. Jordan, 140 U. S. 371; Ledbetter v. Borland, supra. 6 Ante, note 5; Butte City SmokeHouse Lode Cases, 6 Mont. 359; King v. Thomas, 6 Mont. 409, 12 Pac. Rep. 865. 7 McGarrahan v. New Idria M. Co., 49 Cal. 331; Biddle Boggs v. Merced M. Co., 14 Cal. 380; James B. Belford, 2 C. L O. 178; Lindl. Mines, sec. 782. placer,' a conflict between an agricultural or town-site and a mining claim, or between the land described in a state patent and one from the United States, these, and any similar conflicts, being matters which directly involve the rights of the parties to their property as described in their respective patents, may be raised collaterally at any time." It is a settled rule of law that a town-site patent conveys no title to the minerals," and therefore, wherever there is a conflict between the holders under mineral and town-site patents, the question may be raised by the mineral patentee at any time, and his patent, though junior in date, will prevail, so far as the right to the minerals is concerned. The officers of the land department have the right, and it is their duty, to insert in patents all the conditions, reservations and exceptions authorized by law in the particular case, but wherever they exceed this authority, as previously stated, their action is void and open to collateral attack." 1 Iron Silver M. Co. v. Sullivan, 16 Fed. Rep. 829; s. c., 109 U. S. 550; Iron Silver M. Co. v. Reynolds, 124 U. S. 374; s. c., 116 U. S. 687; Iron Silver M. Co. v. Mike & Starr G. & S. M. Co., 143 U. S. 394. 2 Bentley v. Gibbons, Com'r to Salt Lake City Office, Feb. 26, 1896 Amador Medean G. M. Co. v. South Spring Hill G. M. Co., 36 Fed. Rep. 668; United States v. Culver, 52 Fed. Rep. 81; Wedekind v. Craig, 56 Cal. 642; Kansas City M. & M. Co. v. Clay (Ariz.), 29 Pac. Rep. 9; Virginia Lode, 7 L. D. 459; Washington v. McBride, 18 L. D. 199. 3 Butte City Smoke-house Lode Cases, 6 Mont. 397, 12 Pac. Rep. 858; King v. Thomas, 6 Mont. 409, 12 Pac. Rep. 865; Steel v. St. Louis Sm. & Ref. Co., 106 U. S. 447; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378, 9 Pac. Rep. 570; Sparks v. Pierce, 115 U. S. 408; Deffeback v. 4 Heydenfeldt v. Daney G. & S. M. Co., 93 U. S. 634. 5 St. Louis Sm. & Ref. Co. v. Kemp, 104 U. S. 636; Steel v. St. Louis Sm. & Ref. Co., supra; Evans v. Durango L. & C. Co., 80 Fed. Rep. 433; s. C., id. 425; Butte City Smoke. house Lode Cases, supra; Kahn v. Old Telegraph M. Co., 2 Utah, 174. 6 See notes 3 and 5, ante. 7 Deffeback v. Hawke, Butte City Smoke-house Lode Cases, supra; Davis v. Weibbold, 139 U. S. 507; Argentine M. Co. v. Terrible M. Co., 122 U. S. 478. supra; 8 Broder v. Natoma Water & M. Co., 101 U. S. 274. 9Ante, § 746, note 6, p. 647, ante, this section, note 5. |