66 "We are not ignorant of the many decisions by which "it has been held that the rulings of the land officers in "regard to the facts on which patents for lands are "issued are decisive in actions at law, and that such patents can only be impeached in regard to those facts "by a suit in chancery, brought to set the grant aside. "But these are cases in which no prior patent had been "issued for the same land, and where the party contesting the patent had no evidence of a superior legal title, but was compelled to rely on the equity growing "out of frauds and mistakes in issuing the patent to his 66 opponent. 66 "Where each party has a patent from the govern"ment, and the question is as to the superiority of the "title under those patents, if this depends upon ex"trinsic facts not shown by the patents themselves, we "think it is competent in any judicial proceeding where "this question of superiority of title arises to establish "it by proof of these facts. We do not believe that the government of the United States, having issued a patent, can, by the authority of its own officers, invali"date that patent by the issuance of a second one for "the same ground."1 66 66 From the doctrine as announced by the majority court in this case, the chief justice and Justice Brewer dissented. Justice Brewer, speaking for the minority of the court, said: "From Johnson v. Towsley (13 Wall. 72) to the pres"ent time, the uniform ruling of this court has been "that questions of fact passed upon by the land depart"ment are conclusively determined, and that only ques"tions of law can be brought into court. The right to "this patent depends solely upon these two questions of "fact, which were considered by the land office when "the original patent was issued. I think that its deter"mination was conclusive." In a later case before the same tribunal, the lode 'Iron S. M. Co. v. Campbell, 135 U. S. 286, 292, 10 Sup. Ct. Rep. 765. Iron S. M. Co. v. Mike & Starr etc. Co., 143 U. S. 394, 407, 12 Sup. Ct. Rep. 543. claimant had no patent, but rested his case upon a location made after the final entry of the placer claim, but upon a lode which, it was claimed, was known to exist at the time of the application for the placer patent, and which was not included in the application. The right to establish these facts by extrinsic evidence, and thus to limit the operation of the placer patent, was upheld by the majority of the court. The minority of the court, speaking through Justice Field, thus presented its views: "I am unable to agree with my associates in the disposal of this case. The decision and the opinion upon "which it is founded will do much, in my judgment, to "weaken the security of patents of the United States "for mineral lands, and leave them open to attack and "overthrow upon mere surmises, notions, and loose "gossip of the neighborhood, which ought not to inter"fere with any rights of property resting upon the "solemn record of the government." In Dahl v. Raunheim,1 Judge Field, speaking for the entire court, in a case of the same class, says:— "That it was placer ground is conclusively estab"lished in this controversy against the defendant by the fact no adverse claim was asserted by him to the plain"tiff's application for patent of the premises as such "ground. That question is not now open to litigation "by private parties seeking to avoid the effect of plain"tiff's proceedings." In Moran v. Horsky,2 Justice Brewer said: 66 Now, as we have heretofore noticed, the patent in "the case before us for the townsite purported to con"vey the entire tract. On the face of the instrument "there was nothing to suggest any exception. While "it may be conceded under the authorities which are "referred to, that, in an action at law by a claimant "under that patent, the existence of a mining claim at 1132 U. S. 260, 263, 10 Sup. Ct. Rep. 74. "the time of its issue might be shown and be a valid "defense to a recovery of so much of the ground as was "included within the mining claim, and in that view it "may perhaps be not inaptly said that the patent was "to that extent void. But be this as it may, whenever "the invalidity of a patent does not appear upon the "face of the instrument, or by matters of which the "courts will take judicial notice, and the land is appar"ently within the jurisdiction of the land department as ordinary public land of the United States, then it "would seem to be technically more accurate to say that "the patent was voidable, not void." 66 In perfecting mining locations the government is not an actor. It assures to the explorer the right to his mining location, but it does not surrender the right to determine for itself the qualifications of the locator, the fact of his discovery, his compliance with the law, and the character of the land. A judgment by a court of competent jurisdiction in proceedings brought upon adverse claims does not conclude the government as to these matters. There is no notice brought to the attention of the government of the existence of mining locations or known lodes prior to the application for patent. The only record made is with an officer who has no connection with the land department, and who owes no responsibility to the government. And yet a townsite patent issued by the government may be assailed in an action between individuals, and its operation defeated by showing facts the existence of which the government neither actually nor constructively could have any knowledge, unless it was a part of its duty to ascertain them when the townsite patent was applied for; and if it was a part of its duty, the patent should be conclusive evidence that that duty was performed. To say that a perfected mining claim is a grant from the government, is true in one sense; but it does not follow that in establishing the existence of such a grant the government has no voice. It is not a grant in the sense that the government has absolutely parted with its title. It does not seem right, where only one patent is issued, and where the government has not attempted to issue a second one covering any portion of the premises described in the first, that the operative effect of the prior patent should be limited by judgments in actions to which the government is in no sense a party. It would seem that the remedy in such cases should be by action instituted by the government to vacate the patent, after notice of the facts brought to its attention.1 The land department at one time took the position that its jurisdiction was exhausted by the issuance of a prior patent to a townsite, and until that was set aside it was not authorized to issue a junior mineral patent within the limits of the townsite.2 The department subsequently abandoned this doctrine, overruled the cases which established it, and now holds that it may issue a patent to a mineral claimant after having issued a townsite patent.3 If the lode or mining claim is by operation of law reserved out of the patent, it certainly follows that the department may subsequently issue a patent for the thing so reserved. This is the rule now followed by the department with reference to lodes known to exist within patented placers.* 'See Horsky v. Moran, 21 Mont. 345, 53 Pac. 1064, S. C., 178 U. S. 205, 20 Sup. Ct. Rep. 856; Hulings v. Ward Townsite, 29 L. D. 21. 2 See, ante, § 173; Pacific Slope Lode, 12 L. D. 686; Cameron Lode, 13 L. D. 369; Protector Lode, 12 L. D. 662; Plymouth Lode, Id., 513. 3 Pacific Slope Lode v. Butte Townsite, 25 L. D. 518; Gregory Lode, 26 L. D. 144; Hulings v. Ward Townsite, 29 L. D. 21; Brady's Mortgagee v. Harris, Id. 89; S. C. on review, Id. 426. South Star Lode, 20 L. D. 204 (on review); Butte and Boston M. Co., 21 L. D. 125, reversing Pike's Peak Lode, 14 L. D. 47, and commissioners' decision, South Star Lode, 17 L. D. 280; post, § 413. See Pacific Slope Lode v. Butte Townsite, 25 L. D. 518, where the analogy is recognized. Of course, the propriety of this departmental practice depends on the correct determination of the question as to the conclusiveness of the townsite patent. Logically, we think the mineral claimant's remedy in this class of cases is in equity to erect a trust on the townsite patent; or, perhaps, an application to the land department to institute a suit to vacate the patent pro tanto. ? 178. Ownership of minerals under streets in townsites. It cannot be doubted that a patent issued by the government under the townsite laws vests in the grantee the complete title to all the land described, regardless of the fact that some of the land may have become dedicated to a public use by the laying out of streets and highways. If it is subsequently ascertained that minerals underlie these portions of the tract which are subject to the public easement, it cannot be said that the title to these minerals remains in the United States. This ownership must primarily vest in the immediate grantee from the government,-i. e. either in the municipality, if the town be incorporated, or in the county or superior judge in trust for the inhabitants. Whether the title to the minerals underlying the streets and alleys remains in the municipality, or judge as trustee, as the case may be, or passes to the abutting lot-owners, will depend entirely upon the laws of the particular state wherein the townsite is situated. The federal townsite laws contemplate that each state or territory shall appropriately provide by legislation for the disposal of the lots within the tract embraced within the townsite.1 In determining the nature and character of the title conveyed by the trust patentee, and the boundaries of the several tracts conveyed, resort must in each instance be had to this supplemental state or territorial legislation. Without attempting any critical analysis of this class of legislation, we apprehend Rev. Stats., § 2387. |