of the senior claim the nonconflicting ground embraced in an attempted location which is based on a discovery within the limits of the senior claim may be taken by valid locations by others, and that the junior locator must diligently look after his claimtt or be deemed to have abandoned it, there seems to be no rational reason why the junior location may not be validated by the abandonment or forfeiture of the senior. That is because by such abandonment or forfeiture the junior discovery becomes a discovery on land not any longer embraced in a prior location and perfects the junior location by relation. It is believed that if no rights of third persons intervene before the abandonment or forfeiture of the senior location, and the junior locator diliently keeps up his annual labor, the so-called void junior location should be validated by such abandonment or forfeiture of the senior, and that ultimately the Supreme Court of the United States will so hold.

In view of the case of Farrell v. Lockhart,142 however, a cautious miner will make in every case a complete relocation of ground which he has attempted to locate on a discovery within a prior claim, and which, because the prior claim has been abandoned or is subject to forfeiture, he can now acquire. He should do so anyhow, because even under Lavagnino v. Uhlig the right of the senior claimant to priority over the junior claim could probably be restored by resumption of work prior to relocation by amendment or otherwise,143 and a prudent miner would want to end that possibility.

Even in a case where neither adverse nor protest is filed, the Commissioner of the General Land Office may of his own motion cancel an entry for failure of the applicant to comply with some statute or with some rule of the department.144 An unsuccessful protest made after entry does not, however, give the protestants any basis for a suit in equity to annul the patent issued, nor any ground to charge the patentee as trustee.145

Diligence on his part is a land department test. Adams v. Polglase, 32 Land Dec. Dep. Int. 477, 33 Land Dec. Dep. Int. 30. 142 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed.

143 See OSCAMP v. CRYSTAL RIVER MIN. CO., 58 Fed. 293, 7 C. C. A.

144 MINERAL FARM MIN. CO. v. BARRICK, 33 Colo. 410, 80 Pac. 1055. The rejection of an application for patent for a placer because the applicant failed to show that the ground was valuable for mining purposes or that he made the requisite improvements is not a decision that the ground is not placer ground, and is not res judicata in action between the applicant for placer patent and a subsequent lode claim locator. Clipper Min. Co. v. Eli Mining & Land Co., 29 Colo. 377, 68 Pac. 286, 64 L. R. A. 209, 93 Am. St. Rep. 89.

145 Neilson v. Champaign Min. & Mill. Co., 119 Fed. 123, 55 C. C. A. 576.

With reference to protest it should be remembered that the dismissal of an application for patent because of a. protest leaves the applicant with his possessory title unimpaired if he has kept up his annual labor.148 If he has not kept up the annual labor, and the application is dismissed for his laches, the applicant, on renewing his application, may be confronted by an adverse claim made by a relocator.147

But where the applicant for patent delayed entry, and a relocation for failure to do the annual labor took place, the patentee was held a trustee for the relocator, in South End Mining Co. v. Tinney, 22 Nev. 19, 35 Pac. 89.

146 McGowan v. Alps Consol. Min. Co., 23 Land Dec. Dep. Int. 113; Clipper Min. Co. 22 Land Dec. Dep. Int. 527.

147 P. Wolenberg, 29 Land Dec. Dep. Int. 302; Barklage v. Russell, 29 Land Dec. Dep. Int. 401; Cleveland v. Eureka No. 1 Gold Mining & Milling Co., 31 Land Dec. Dep. Int. 69; Lucky Find Placer Claim, 32 Land Dec. Dep. Int. 200.

109.

110.

Direct Attacks on Patents.

111.

Effect of Patent of Placer on Known Lodes in the Placer.

Patentees as Trustees.

112. The Doctrine of Relation.

NATURE OF A PATENT.

107. A patent is both a judgment in rem of the quasi judicial land department and a conveyance of title by the United States to the patentee. If within the jurisdiction of the land department to issue and valid on its face, a patent is not subject to collateral attack.

A patent is the conveyance executed by the United States which passes to the applicant the legal fee-simple title to the land.1 In still another aspect, however, because it is the culmination of the patent proceedings, it is a final judgment in rem rendered by that quasi judicial tribunal, the land department. The exact way to state it seems to be that it is a judgment which is self-executing as respects title, and therefore is both a judgment and a conveyance.2

Conclusiveness of Patent.

Because of the patent's character as a judgment in rem rendered on the default, or after the judicial defeat, of all adverse claimants, the patentee takes free from the claims of all who are not specifically protected under the public land acts. All adverse claimants who must

1 STEEL v. ST. LOUIS SMELTING & REFINING CO., 106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226. A patent of land from the United States passes to the patentee all the interest of the United States, whatever it may be, in everything connected with the soil, in everything forming any portion of its bed or fixed to its surface, and, in general, in everything which is embraced within the signification of the term "land." MOORE v. SMAW, 17 Cal. 199, 79 Am. Dec. 123; Fremont v. Flower, 17 Cal. 199, 224; Johnson v. Johnson (Idaho) 95 Pac. 499.

2 "The land department is a quasi judicial tribunal, and a patent is the judg ment of that tribunal upon the questions presented and a conveyance in execution of the judgment." United States v. Northern Pac. R. Co., 95 Fed. 864, 869, 37 C. C. A. 290; JAMES v. GERMANIA IRON CO., 107 Fed. 597, 600, 46 C. C. A. 476; Le Marchel v. Teagarden (C. C.) 152 Fed. 662. See United States v. Winona & St. P. R. Co., 67 Fed. 948, 15 C. C. A. 96.

adverse are barred by the patent, if all jurisdictional facts for its issue existed, and those who might have protested have no recourse except in a proper case to persuade the United States to file a bill in equity to vacate the patent for fraud. So conclusive is a patent that even on direct attack by the government the presumption that the patent was correctly issued can be overcome only by clear and convincing proof of the false representations whereby it was secured.3

4

A patent issued without authority of law, as well as one issued in spite of a law forbidding its issuance, is invalid; and so, it seems, is one purporting to convey a claim in excess of the legal size, as well as one containing so inaccurate a description as to render the identity of the property wholly uncertain; and, of course, such absolutely void patents are subject to collateral attack. A patent which is within the jurisdiction of the land department to issue and is valid on its face is not, however, subject to collateral attack. Except on direct attack

6

8 UNITED STATES v. IRON SILVER MIN. CO., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed. 571; United States v. King, 83 Fed. 188, 27 C. C. A. 509.

4 BURFENNING v. CHICAGO, ST. P., M. & O. R. CO., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. Ed. 175; GARRARD v. SILVER PEAK MINES (C. C.) 82 Fed. 578; Doolån v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228, 31 L. Ed. 844; United States v. Winona & St. P. R. Co., 67 Fed. 948, 15 C. C. A. 96; Ledbetter v. Borland, 128 Ala. 418, 29 So. 579; Standard Quicksilver Co. v. Habishaw, 132 Cal. 115, 64 Pac. 113. A patent for land previously granted to other parties is in this class. FRANCEUR v. NEWHOUSE (C. C.) 40 Fed. 618. A patent issued while an adverse suit is pending is void as against the adverse claimant. ROSE v. RICHMOND MIN. CO., 17 Nev. 25, 27 Pac. 1105, affirmed Richmond Mining Co. v. Rose, 114 U. S. 576, 5 Sup. Ct. 1055, 29 L. Ed. 273. Except, of course, where his adverse suit is dismissed. Deno v. Griffin, 20 Nev. 249, 20 Pac. 308.

5 Lakin v. Dolly (C. C.) 53 Fed. 333; Lakin v. Roberts, 54 Fed. 461, 4 C. C. A. 438. But, to make the patent invalid, it must be clear that several claims could not have been included in the one patent as a consolidated claim. PEABODY GOLD MIN. CO. v. GOLD HILL MIN. CO. (C. C.) 97 Fed. 657; Id., 111 Fed. 817, 49 C. C. A. 637; CARSON CITY GOLD & SILVER MIN. CO. v. NORTH STAR MIN. CO., 83 Fed. 658, 28 C. C. A. 333; Tucker v. Masser, 113 U. S. 203, 5 Sup. Ct. 420, 28 L. Ed. 979; Poire v. Wells, 6 Colo. 406; Poire v. Leadville Improvement Co., 6 Colo. 413. In TUCKER v. MASSER, 113 U. S. 203, 5 Sup. Ct. 420, 28 L. Ed. 979, a patent for a placer was held to be valid, although it covered more than 160 acres, since it included several placer locations, all owned by the same applicant.

6 Cullacott v. Cash G. & S. M. Co., 8 Colo. 179, 6 Pac. 211.

7 GARRARD v. SILVER PEAK MINES (C. C.) 82 Fed. 578.

8 ST. LOUIS SMELTING & REFINING CO. v. KEMP, 104 U. S. 636, 26 L. Ed. 875; STEEL v. ST. LOUIS SMELTING & REFINING CO., 106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226. See CALHOUN GOLD MIN. CO. v. AJAX GOLD MIN. CO., 182 U. S. 499, 21 Sup. Ct. 885, 45 L. Ed. 1200.

on a patent, it is conclusively presumed that everything has been done. that should have been done."

Not all questions are settled by a patent, however. The patent necessarily contains various conditions and exceptions, and even if these are not expressed they are implied. While conditions and exceptions. put in the patent by the land department without authority of law are. absolutely void, and for that reason are disregarded,10 the law itself fixes certain ones. A patentee, for instance, takes subject to pre-existing easements for ditches and reservoirs used in connection with water rights acquired under the federal statutes11 and to easements for highways.12 So a placer patent does not convey lodes known to exist at the time of the application for placer patent.is A lode patented across a tunnel site, where the lode was located after the tunnel site, does not get blind veins cut later by the tunnel and claimed properly by the tunnel owner.1 So a townsite patent is not conclusive as against a known lode. But in all these respects a patented claim is at no disadvantage as contrasted with an unpatented one.

15

9 GALBRAITH v. SHASTA IRON CO., 143 Cal. 94, 76 Pac. 901. See United States v. Marshall Silver Min. Co., 129 U. S. 579, 9 Sup. Ct. 343, 32 L. Ed. 734. The patent is conclusive of all facts necessary to establish the validity thereof. SHARKEY v. CANDIANI, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. S.) 791. But it does not by relation make valid a void declaratory statement. Hickey v. Anaconda Copper Min. Co., 33 Mont. 46, 81 Pac. 806. But see Laws Mont. 1907, p. 23, where it is enacted that patent shall be conclusive that the Montana statute has been complied with, but that where questions of priority are involved, and the date of location is claimed to have been prior to the date of record, the date of location shall be an issuable fact.

10 "The patent of a mining claim carries with it such rights to the land which includes the claim as the law confers, and no others, and those rights can neither be enlarged nor diminished by any reservations of the officers of the land department." DAVIS v. WIEBBOLD, 139 U. S. 507, 528, 11 Sup. Ct. 628, 35 L. Ed. 238; DEFFEBACK v. HAWKE, 115 U. S. 392, 6 Sup. Ct. 95, 29 L. Ed. 423; Clary v. Hazlitt, 67 Cal. 286, 7 Pac. 701; Talbott v. King, 6 Mont. 76, 9 Pac. 434; Butte City Smoke House Lode Cases, 6 Mont. 397, 12 Pac. 858.

11 Rev. St. U. S. § 2340 (U. S. Comp. St. 1901, p. 1437). See Act Jan. 21, 1895, c. 37, 28 Stat. 635; Act May 14, 1896, c. 179, § 2, 29 Stat. 120; Act May 11, 1898, c. 292, 30 Stat. 404.

12 Rev. St. U. S. § 2477 (U. S. Comp. St. 1901, p. 1567).

13 A placer patent will, of course, pass to the patentee all lodes other than "known lodes." CRANE'S GULCH MIN. CO. v. SCHERRER, 134 Cal. 350, 66 Pac. 487, 86 Am. St. Rep. 279. And under the federal act of 1866 even "known lodes" passed. Id.

14 CREEDE & C. C. MIN. & MILL. CO. v. UINTA TUNNEL MIN. & TRANSP. CO., 196 U. S. 337, 25 Sup. Ct. 266, 49 L. Ed. 501.

15 See chapter VII, § 29, supra.