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that it is held that "the action of each is necessary within their appropriate spheres to the administration of the office," 10 and that a vacancy in the office of either the register or the receiver disqualifies the remaining incumbent from performing the duties of his own office until the vacancy is filled.11 If both offices are filled, it seems that the ' register and receiver "can act independently and separately in most of the matters pertaining to their duties in the land office. They need not act jointly in administering oaths, or in examining witnesses, or in hearing testimony, for all testimony is required to be reduced to writing and cases may be decided upon the record so made; but in rendering opinions and publishing decisions on matters affecting the rights or interests of adverse parties the law contemplates that they shall act jointly." 12 Both officers need not act simultaneously. "The receiver may act at one time, and the register at another; but both must act before the case is concluded and the papers signed upon which the patent is subsequently issued."13

14

The practice before these officers is governed by the rules of the General Land Office; all testimony offered being received, subject to their rulings on its admissibility. All papers in matters before them are forwarded, sooner or later, to the General Land Office, where they remain.

Appeals.

Appeal from the registers and receivers lies to the Commissioner of the General Land Office. The latter's decision may be reviewed by the Secretary of the Interior, and perhaps there may be an appeal "under special circumstances to the President." 15 Congress has, of course, the power at any time to withdraw a contest from the land department and determine for itself the rights of the parties.*

10 Christian F. Ebinger, 1 Land Dec. Dep. Int. 150.

11 Graham v. Carpenter, 9 Land Dec. Dep. Int. 365; Smith v. McKerracher, 20 Land Dec. Dep. Int. 276.

12 Peters v. United States, 2 Okl. 116, 131, 33 Pac. 1031.

13 Smith v. United States, 170 U. S. 372, 377, 18 Sup. Ct. 626, 42 L. Ed. 1074; Potter v. United States, 107 U. S. 126, 1 Sup. Ct. 524, 27 L. Ed. 230. 14 Department mineral land regulations must be appropriate, reasonable, and within the limitation of the law for the enforcement of which they are provided, or they are void. Anchor v. Howe (C. C.) 50 Fed. 366.

15 Shepley v. Cowan, 91 U. S. 330, 340, 23 L. Ed. 424.

* Emblen v. Lincoln Land Co., 102 Fed. 559, 42 C. C. A. 499.

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ATTITUDE OF THE COURTS TOWARD THE LAND DEPARTMENT.

11. If there has been no fraud nor imposition, the courts regard all decisions of the land department on questions of fact as conclusive. They will give effect to those decisions, despite errors of law, unless the courts are convinced that but for the errors of law the decisions would have been the other way, or unless the land department has exceeded its jurisdiction. The courts, moreover, incline to accept the long-continued construction placed by the land department on ambiguous statutes.

As we have seen, the chief function of the land department is to supervise land entries and to issue patents. In determining between different classes of claimants whether land is mineral or not, and whether, if mineral, an applicant is entitled to a patent, the land department is acting in a quasi judicial capacity. Its chief function is that of a jury, namely, to investigate and pass upon the facts.

If there has been no fraud nor imposition, all questions of fact decided by the department are regarded by the courts as conclusively settled. Even though questions of law are mixed with the questions of fact, and the questions of law may have been wrongly decided, still, if the courts cannot say that but for an error of law the case must have been decided the other way, the courts will not interfere.1 While, of course, any action of the land department may be attacked on the ground that it was beyond the jurisdiction of that branch of the government, the presumption is in favor of

16 DE CAMBRA v. ROGERS, 189 U. S. 119, 23 Sup. Ct. 519, 47 L. Ed. 734; Gardner v. Bonestell, 180 U. S. 362, 21 Sup. Ct. 399, 45 L. Ed. 574; Moss v. Dowman, 176 U. S. 413, 20 Sup. Ct. 429, 44 L. Ed. 526; Johnson v. Drew, 171 U. S. 93, 18 Sup. Ct. 800, 43 L. Ed. 88; Stewart v. McHarry, 159 U. S. 643, 16 Sup. Ct. 117, 40 L. Ed. 290; Carr v. Fife, 156 U. S. 494, 15 Sup. Ct. 427, 39 L. Ed. 508; Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249, 29 L. Ed. 570; Moore v. Robbins, 96 U. S. 530, 24 L. Ed. 848; Peyton v. Desmond, 129 Fed. 1, 63 C. C. A. 651; Mineral Farm Min. Co. v. Barrick, 33 Colo. 410, 80 Pac. 1055; Jeffords v. Hine, 2 Ariz. 162, 11 Pac. 351. See Golden Reward Min. Co. v. Buxton Min. Co. (C. C.) 79 Fed. 868. While the land department decisions are subject to review for fraud, mistakes, or other equitable ground, Estes v. Timmons, 12 Okl. 537, 73 Pac. 303, it seems that perjury during the hearing before the land department is not ground enough, Cagle v. Dunham, 14 Okl. 610, 78 Pac. 561; Kennedy v. Dickie, 34 Mont. 205, 85 Pac. 982. Compare Cragie v. Roberts (Cal. App.) 92 Pac. 97.

17 MARQUEZ v. FRISBIE, 101 U. S. 473, 476, 25 L. Ed. 800, where the court says: "It is a sound principle that where there is a mixed question of law and fact, and the court cannot so separate it as to see clearly where the mistake of law is, the decision of the tribunal to which the law has confided the matter is conclusive."

jurisdiction.18 Where the matter is within the jurisdiction of the land department, and yet that department has made a clear and controlling mistake of law, the courts in a proper case will correct the error.1o In Hawley v. Diller, the United States Supreme Court says: "It is suggested that the order of the land department canceling the entry was based upon a misconstruction of the law. If it had been, then the error could be corrected by the courts." 20

The attitude of the courts towards the land department is, however, one of great friendliness, even on matters of law. They are not bound by the land department's construction of the land statutes, yet when the statutes are ambiguous, and the land department has

18 KING v. MÇANDREWS, 111 Fed. 860, 50 C. C. A. 29; New Dunderberg Min. Co. v. Old, 79 Fed. 598, 25 C. C. A. 116.

19 Sanford v. Sanford, 139 U. S. 642, 647, 11 Sup. Ct. 666, 35 L. Ed. 290; Baldwin v. Starks, 107 U. S. 463, 465, 2 Sup. Ct. 473, 27 L. Ed. 526; Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249, 29 L. Ed. 570; Southern Cross Gold Min. Co. of Kentucky v. Sexton, 147 Cal. 758, 82 Pac. 423; Hoyt v. Weyerhaeuser (C. C. A.) 161 Fed. 324. See Gonzales v. French, 164 U. S. 338, 17 Sup. Ct. 102, 41 L. Ed. 458.

20 Hawley v. Diller, 178 U. S. 476, 489, 20 Sup. Ct. 986, 44 L. Ed. 1157. Compare Wisconsin Cent. R. Co. v. Forsythe, 159 U. S. 46, 61, 15 Sup. Ct. 1020, 40 L. Ed. 71.

"A patent to land of the disposition of which the land department has jurisdiction is both the judgment of that tribunal and a conveyance of the legal title to the land; but the judgment and conveyance of the department do not conclude the rights of the claimants to the land. They rest on established principles of law and fixed rules of procedure, which condition their initiation and prosecution, the application of which to the facts of each case determines its right decision; and if the officers of the land department are induced to issue a patent to the wrong party by an erroneous view of the law, or by a gross or fraudulent mistake of the facts, the rightful claimant is not remediless. He may avoid the decision and charge the legal title derived from the patent which they issue with his equitable title to it on either of two grounds: (1) That upon the facts found, conceded, or established without dispute at the hearing before the department, its officers fell into an error in the construction of the law applicable to the case, which caused them to refuse to issue the patent to him, and to give it to another; or (2) that through fraud or gross mistake they fell into a misapprehension of the facts proved before them, which had the like effect. If he would attack the patent on the latter ground, and avoid the department's finding of facts, however, he must allege and prove, not only that there was a mistake in the finding, but [also] the evidence before the department from which the mistake resulted, the particular mistake that was made, the way in which it occurred, and the fraud, if any, which induced it, before any court can enter upon the consideration of any issue of fact de termined by the officers of the department at the hearing." Sanborn, J., in James v. Germania Iron Co., 107 Fed. 597, 600, 601, 46 C. C. A. 476, 479. Patents will not be set aside for mistake, except where the proof is plain and convincing beyond reasonable controversy. Thallmann v. Thomas, 111 Fed. 277, 49 C. C. A. 317.

consistently and for a considerable length of time followed a given construction of them, particularly where the adoption of the construction was practically contemporaneous with the passage of the statutes, the courts will accept the department's construction.21

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The court's aid may be sought by litigants either before patent or after patent. Prior to the land department's loss of jurisdiction over a matter by the issuance of a patent 22 or other final action,23 the courts refuse, in general, to interfere with proceedings in the land department. Under the forcible entry and detainer statutes, and by injunction, however, the courts will prevent wrongful interference with the actual possession of the land affected pending the land office's determination of the questions before that office.25 After the issuance of patent no disputed question of fact presented to the land department can be litigated in the courts. The patent, if valid on its face and issued under a law authorizing its issuance, cannot be collaterally attacked, but may be subject to several kinds of direct attack. For instance, the United States may file a bill in equity to annul the patent because obtained by fraud,20 by inadvertence or mistake,27 or even, it seems, because issued through erroneous views of

21 Hewitt v. Schultz, 180 U. S. 139, 21 Sup. Ct. 309, 45 L. Ed. 463; Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 366, 10 Sup. Ct. 112, 33 L. Ed. 363; U. S. v. Burkett (D. C.) 150 Fed. 208; McFadden v. Mountain View Mining & Milling Co., 97 Fed. 670, 38 C. C. A. 354.

22 The issuance of patent does not necessarily mean here the actual delivery of the patent, but may precede such delivery. United States v. Schurz, 102 U. S. 378, 26 L. Ed. 167. A patent, duly issued and recorded, passes title without delivery. United States v. Laam (C. C.) 149 Fed. 581; Rogers v. Clark Iron Co. (Minn.) 116 N. W. 739. Until title passes the land department retains jurisdiction over the lands. Peyton v. Desmond, 129 Fed. 1, 63 C. C. A. 651..

23 As by an irrevocable decision. Noble v. Union River Logging R. Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123.

24 HUMBIRD v. AVERY, 195 U. S. 480, 25 Sup. Ct. 123, 49 L. Ed. 286; Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U. S. 301, 24 Sup. Ct. 860, 47 L. Ed. 1064; Marquez v. Frisbie, 101 U. S. 473, 25 L. Ed. 800; United States v. Schurz, 102 U. S. 378, 395, 26 L. Ed. 167; Northern Lumber Co. v. O'Brien (C. C.) 124 Fed. 819; Wallula Pac. R. Co. v. Portland & S. R. Co. (C. C.) 154 Fed. 902.

25 Zimmerman v. McCurdy, 15 N. D. 79, 106 N. W. 125; Fulmele v. Camp, 20 Colo. 495, 39 Pac. 407; Northern Pac. R. Co. v. Soderberg (C. C.) 86 Fed. 49; Colwell v. Smith, 1 Wash. T. 92; Utah, N. & C. R. Co. v. Utah & C. R. Co. (C. C.) 110 Fed. 879; Northern Lumber Co. v. O'Brien (C. C.) 124 Fed. 819; Jones v. Hoover (C. C.) 144 Fed. 217; Kitcherside v. Myers, 10 Or. 21. See Marquez v. Frisbie, 101 U. S. 473, 475, 25 L. Ed. 800.

26 United States v. Iron Silver Min. Co., 128 U. S. 673, 9 Sup. Ct. 195, 32 L. Ed. 571; U. S. v. Maxwell Land Grant Co., 121 U. S. 325, 7 Sup. Ct. 1015, 30 L. Ed. 949. See San Pedro & Cañon del Agua Co. v. U. S., 146 U. S. 120, 13 Sup. Ct. 94, 36 L. Ed. 911.

27 Germania Iron Co. v. United States, 165 U. S. 379, 17 Sup. Ct. 337,

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law. Then, again, where in fraud of the real owner, or by mistake of fact or mistake of law, a patent has been issued to a third person, a court of equity will hold the patentee a trustee for the real owner, or allow the real owner to quiet title.3°

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THE SYSTEM OF PUBLIC LAND SURVEYS.

12. The United States system of public land surveys calls for townships six miles square, and the subdivision of each township into thirty-six sections, each a mile square. The sections in turn are subdivided into halves, quarters, etc. The surveyors, in furnishing the details of the survey, certify to the surveyor general the mineral or nonmineral character of the land; and the surveyor general returns the land as mineral or nonmineral accordingly. The surveyor general's return accompanies the plats of survey transmitted to the proper land offices, and the land officers treat that return as prima facie evidence of the nature of the soil.

By section 2319, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1424), "all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase," etc. It is desirable, therefore, to say a word first about surveyed and unsurveyed lands. It was by the placer act of July 9, 1870 (16 Stat. 217, c. 235), that provision was made for extending the public surveys over mineral lands. Survey Subdivisions.

The United States system of surveys provides for the division of the public lands into townships six miles square, the townships constituting the unit of survey, and being divided by lines run north and south according to the true meridian and by lines run east and west to cross the north and south lines at right angles. Each township is numbered, and is subdivided into thirty-six sections, each a mile square, and each numbered. The following diagram shows a township.

41 L. Ed. 754; Williams v. United States, 138 U. S. 514, 11 Sup. Ct. 457, 34 L. Ed. 1026.

28 United States v. Winona & St. P. R. Co., 67 Fed. 948, 959, 15 C. C. A. 96.

29 BERNIER v. BERNIER, 147 U. S. 242, 13 Sup. Ct. 244, 37 L. Ed. 152; United States v. Citizens' Trading Co. (Okl.) 93 Pac. 448; James v. Germania Iron Co., 107 Fed. 597, 46 C. C. A. 476, and cases cited; Hoyt v. Weyerhaeuser (C. C. A.) 161 Fed. 324. See Le Marchel v. Teegarden (C. C.) 133 Fed. 826.

30 DULUTH & IRON RANGE R. CO. v. ROY, 173 U. S. 587, 19 Sup. Ct. 549, 43 L. Ed. 820; Peabody Gold Min. Co. v. Gold Hill Min. Co. (C. C.) 106 Fed. 242.

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