of initiating and perfecting title to mineral lands, and have outlined the proceedings culminating in the issuance of the patent, we hope to present the subject fully. For the present, we are considering the question of patents for lands issued within townsites, a somewhat limited, though by no means unimportant, class. In doing so it will be sufficient to simply epitomize what we understand to be the underlying principles controlling the courts in determining the operative force and effect of a federal patent.

We understand the general rules to be as follows:

(1) A patent for land is the highest evidence of title, and is conclusive against the government and all claiming under junior patents or titles, until set aside or annulled;1

(2) The land department is a tribunal appointed by congress to decide certain questions relating to the public lands, and its decision upon matters of fact cognizable by it, in the absence of fraud or imposition, is conclusive everywhere else. When a patent is attacked

'Stone v. United States, 2 Wall. 525; Hooper v. Scheimer, 23 How. 235; Johnson v. Towsley, 13 Wall. 72; Gibson v. Chouteau, Id. 92; Warren v. Van Brunt, 19 Wall. 646; St. Louis Smelting Co. v. Kemp, 104 U. S. 636; Hoofnagle v. Anderson, 7 Wheat. 212.

'Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. Rep. 249; Johnson v. Towsley, 13 Wall. 72; Warren v. Van Brunt, 19 Wall. 646; Shepley v. Cowan, 91 U. S. 330; Moore v. Robbins, 96 U. S. 530; Marquez v. Frisbie, 101 U. S. 473; Vance v. Burbank, Id. 514; Quinby v. Conlan, 104 U. S. 420; St. Louis Smelting Co. v. Kemp, Id. 636; Steel v. St. Louis Smelting Co., 106 U. S. 447, 1 Sup. Ct. Rep. 389; Baldwin v. Starks, 107 U. S. 463, 2 Sup. Ct. Rep. 473; United States v. Minor, 114 U. S. 233, 5 Sup. Ct. Rep. 236; Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628; Barden v. N. P. R. R., 154 U. S. 288, 14 Sup. Ct. Rep. 1030; Waterloo M. Co. v. Doe, 82 Fed. 45, 51; New Dunderberg M. Co. v. Old, 79 Fed. 598; Mendota Club v. Anderson, 101 Wis. 479, 78 N. W. 185; United States v. Northern Pac. Ry., 95 Fed. 864; Bunker Hill and Sullivan M. and C. Co. v. Empire State-Idaho Co., 109 Fed. 538; Peabody Gold M. Co. v. Gold Hill M. Co., 111 Fed. 817; King v. McAndrews, Id. 860.

two questions are presented, Did the department have power to issue the patent and to determine the questions which conditioned its issue? and, Was the judgment induced by fraud, mistake of fact, or error in law?1

1

(3) The government having issued a patent, cannot by the authority of its own officers invalidate that patent by the issuing of a second one for the same property;2

(4) A patent may be collaterally impeached in any action, and its operation as a conveyance defeated, by showing that the department had no jurisdiction to dispose of the lands; that is, that the law did not provide for selling them, or that they had been reserved from sale or dedicated to special purposes, or had been previously transferred to others. The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry, not whether its conclusion in the course of it is right or wrong.

3

Applying these principles to the class of patents under consideration, we are justified in deducing the following:

(A) A mining patent issued prior to the final entry of a townsite is conclusive evidence that all antecedent steps necessary to its issue have been properly and legally taken, and necessarily inhibits the issuance of

United States v. Northern Pac. Ry. Co., 95 Fed. 864.

lron S. M. Co. v. Campbell, 135 U. S. 286, 10 Sup. Ct. Rep. 765; Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628.

3 Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985; Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628; Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. Rep. 808, 838; United States v. Winona and St. P. R. R. Co., 67 Fed. 948; Garrard v. Silver Peak Mines, 82 Fed. 578, 583; Smyth v. New Orleans Canal and Bank Co., 93 Fed. 899. And see Kansas City M. and M. Co. v. Clay (Ariz.), 29 Pac. 9.

New Dunderberg M. Co. v. Old, 79 Fed. 598; Bradley v. Dells Lumber Co., 105 Wis. 245, 81 N. W. 394; King v. McAndrews, 111 Fed. 860; note to Hartman v. Warren, 22 C. C. A. 30.

5 Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628; Iron S. M. Co. v. Campbell, 17 Colo. 267, 29 Pac. 513; Kahn v. Old Tel. Co., 2 Utah

a subsequent patent to the townsite claimants covering the same property. In cases of incorporated cities and towns, under the present state of the law granting certain surface privileges to prior occupants of the surface of lode claims, we think the law gives this prior occupant the status of an adverse claimant, and that, to protect his rights to the surface, he must file his adverse claim and pursue his remedy in the courts. Failing in this, the patent issued will be a conclusive adjudication that no such prior occupancy existed. We might go a step farther, and assert that a general reservation in a patent of surface rights would not protect the prior occupant or enable him to collaterally assail the mineral patent. The fact and extent of his occupancy should be definitely determined when the mineral patent is issued, and the boundaries and extent inserted in a special reserving clause. This would enable the government to subsequently patent the surface under a townsite application, and the two patents, when taken together, would clearly show jurisdiction in the land department to issue both. The thing reserved by one would be granted by the other.2

That the government, as the paramount proprietor, can create such a severance of title, cannot be denied. It was of frequent occurrence under the common law.3 And the right of a private owner to separate the ownership of the minerals from that of the overlying surface has always been recognized in America.1

174; Chambers v. Jones, 17 Mont. 156, 42 Pac. 758; Poire v. Wells, 6 Colo. 406; Justice M. Co. v. Lee, 21 Colo. 260, 52 Am. St. Rep. 216, 40 Pac. 444; United States v. Iron S. M. Co., 128 U. S. 673, 9 Sup. Ct. Rep. 195; Mont. Cent. Ry. Co. v. Migeon, 68 Fed. 811.

3

Hulings v. Ward Townsite, 29 L. D. 21.

Iron S. M. Co. v. Campbell, 135 U. S. 286-292, 10 Sup. Ct. Rep. 765. See, ante, § 9; post, §§ 812-814.

Hartwell v. Camman, 2 Stockt. Ch. 128, 64 Am. Dec. 448; Stewart v. Chadwick, 8 Iowa, 463; Caldwell v. Fulton, 31 Pa. St. 475, 72 Am. Dec.

The surface proprietor, as an incident to his grant, would, of course, be entitled to the right of subjacent support; and the mineral patentee would be compelled to so conduct mining operations underneath the surface as not to interfere with the full enjoyment of the surface and the buildings and improvements thereon.1 This subject is more fully treated in a subsequent chapter of this work.2

(B) When a townsite patent is issued, it is in law such a declaration of the patentability of the land under the townsite laws that no subsequent discovery of minerals can deprive the townsite owner of his property. The patent to the townsite effectually withdraws the land from the body of the public domain, and it is no longer subject to exploration and purchase under the mining laws, based upon discoveries subsequent to the townsite patent.3

(c) In the case of patents to incorporated cities or towns issued under the act of March 3, 1891, the patent is no longer conclusive evidence of the fact that the lands are non-mineral, as the department is no longer called upon to determine the character of the land, unless it be to segregate the known veins, or lodes, and determine upon proper proceedings in that behalf the fact of the existence of such veins, or lodes, or of valid subsisting mining claims, and segregating them from

760; Arnold v. Stevens, 24 Pick. 106, 35 Am. Dec. 305; Johnstown I. Co. v. Cambria I. Co., 32 Pa. St. 241, 72 Am. Dec. 783; Knight v. Indiana C. and I. Co., 47 Ind. 105, 110, 47 Am. Rep. 692; Marble Co. v. Ripley, 10 Wall. 393; Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202; French v. Brewer, 3 Wall. Jr. 346, Fed. Cas. No. 5096.

16 Lawson's Rights and Remedies, § 2787, p. 4544, and cases there cited.

See, post, & § 818, 823.

3 Davis v. Weibbold, 139 U. S. 507, 11 Sup. Ct. Rep. 628; McCormick v. Sutton, 97 Cal. 373, 32 Pac. 444; Smith v. Hill, 89 Cal. 122, 26 Pac. 644; Carter v. Thompson, 65 Fed. 329; Larned v. Jenkins, 113 Fed. 634

the other lands subject to entry under the townsite, that patents may issue ultimately to the mineral claimant, as contemplated in the act. We doubt the propriety of inserting general clauses of reservation. The two patents when issued should show that the property granted by the junior patent is identically that which is reserved out of the senior patent. A reservation of a specific boundary, laid down so as to be identified in the first patent, needs no judicial action to determine what it is that is reserved.1

175a. Difficulty in the application of principles suggested. The foregoing principles, except so far as we have dealt with the effect of patents issued for townsite lands within the limits of incorporated cities or towns-as to which there are no adjudications-are well settled. Some difficulty is encountered in applying these principles to cases involving the operation of so much of the statute as inhibits the acquisition of title under the townsite laws to mines of gold, silver, and cinnabar, or to valid mining claims or possessions under existing laws. The crucial questions presented for consideration may be thus stated: (1) What constitutes a mine or valid mining claim the title to which cannot be acquired under the townsite laws? (2) On whom devolves the duty of determining the existence of such mine or mining claim -the land department prior to the issuance of a townsite patent, or the courts after its issuance? Or, in other words, can a townsite patent, valid on its face and purporting to convey all the lands within defined boundaries, be assailed by mineral claimants asserting title to mines or claims within the townsite limits originating prior to the townsite entry? We shall discuss the questions in the order stated.

1 Iron S. M. Co. v. Campbell, 135 U. S. 286, 292, 10 Sup. Ct. Rep. 765.