ADVANTAGES OF PATENT.

108. It is in the conclusiveness of title to the land conveyed that a patent excels a location.

The first question to be considered is wherein a patent gives the patentee an advantage that he did not possess as a locator. Upon the surface it would seem as if the total gain by patent was the conversion of a possessory title, retained on condition of the continued performance of annual labor, into the legal title in fee simple. "A valid and subsisting location of mineral lands," said the United States Supreme Court in 1884, "made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located." 16 And that dictum expresses what has been the general conception of the dignity and importance of a mining claim.17

16 GWILLIM v. DONNELLAN, 115 U. S. 45, 49, 5 Sup. Ct. 1110, 29 L. Ed. 348. See Butte City Smoke House Lode Cases, 6 Mont. 397, 12 Pac. 858.

17 "It has therefore been repeatedly held that mining claims are property in the fullest sense of the word, and may be sold, transferred, mortgaged, and inherited without infringing the title of the United States, and that, when a location is perfected, it has the effect of a grant by the United States of the right of present and exclusive possession." MANUEL v. WULFF, 152 U. S. 505, 510, 511, 14 Sup. Ct. 651, 38 L. Ed. 532; O'CONNELL v. PINNACLE GOLD MINES CO. (C. C.) 131 Fed. 106; Id., 140 Fed. 854, 72 C. C. A. 645, 4 L. R. A. (N. S.) 919; Oscamp v. Crystal River Min. Co., 58 Fed. 293, 7 C. C. A. 233. See Moore v. Steelsmith, 1 Alaska, 121; Worthen v. Sidway, 72 Ark. 215, 79 S. W. 777; Harris v. Equator Min. & S. Co. (C. C.) 8 Fed. 863; McFeters v. Pierson, 15 Colo. 201, 24 Pac. 1076, 22 Am. St. Rep. 388; Hughes v. Devlin, 23 Cal. 501; Suessenbach v. First Nat. Bank, 5 Dak. 477, 41 N. W. 662. Compare White Star Min. Co. v. Hultberg, 220 Ill. 578, 77 N. E. 327. The possessory right to a mining claim is properly assessed as real estate. Bakersfield & Fresno Oil Co. v. Kern County, 144 Cal. 148, 77 Pac. 892. It is within a statute abolishing joint tenancy in real property. Binswanger v. Henninger, 1 Alaska, 509. It is subject to a judgment lien upon real property. Butte Hardware Co. v. Frank, 25 Mont. 344, 65 Pac. 1; Bradford v. Morrison (Ariz.) 86 Pac. 6. But see, contra, Phoenix Min. & Mill. Co. v. Scott, 20 Wash. 48, 54 Pac. 777. It descends to the intestate owner's heirs. KEELER v. TRUEMAN, 15 Colo. 143, 25 Pac. 311; Lohman v. Helmer (C. C.) 104 Fed. 178. That unpatented mining claims belonging to an intestate owner pass to his heirs by descent, instead of going to them as purchasers, and therefore an administrator's sale of the claims in the manner fixed by the state statute passes title to the purchaser at such sale, is held in O'CONNELL v. PINNACLE GOLD MINES CO. (C. C.) 131 Fed. 106; Id., 140 Fed. 854, 72 C. C. A. 645, 4 L. R. A. (N. S.) 919. A mining claim may be taken and sold under execution. McKeon v. Bisbee, 9 Cal. 137, 70 Am. Dec. 642. Compare Roseville Alta Min. Co. v. Iowa Gulch Min. Co., 15 Colo. 29, 24 Pac. 920, 22 Am. St. Rep. 373. Where the claim is used as a place of residence for the owner and his family, it may even

But, while a mining location is a grant by the United States, it is far from being as satisfactory a grant as a patent is. In the first place, the location has the condition of annual labor attached to it, while a patent has not. Then a location has no presumptions in its favor, except as against an express relocation, and must be proved by showing both the mineral nature of the land revealed in a discovery and the acts of location duly performed, while a mining patent establishes once for all, except on direct attack by the government for fraud, the mineral character of the land,1s the fact of a valid discovery,19 and the legal existence of the location merged in the patent as prior to any other conflicting surface location not excepted from it.20 Not only so, but

18

be claimed as a homestead exemption. GAYLORD v. PLACE, 98 Cal. 472, 33 Pac. 484. Its validity is not affected by the lapse of many years without an attempt to patent it. CLIPPER MIN. CO. v. ELI MINING & LAND CO., 194 U. S. 220, 24 Sup. Ct. 632, 48 L. Ed. 944. See Chapman v. Toy Long, 4 Sawy. (U. S.) 28 Fed. Cas. No. 2,610.

18 DAVIS v. SHEPHERD, 31 Colo. 141, 72 Pac. 57. See Tombstone Townsite Cases, 2 Ariz. 272, 15 Pac. 26; Gale v. Best, 78 Cal. 235, 20 Pac. 550, 12 Am. St. Rep. 44.

19 CALHOUN GOLD MIN. CO. v. AJAX GOLD MIN. CO., 182 U. S. 499, 21 Sup. Ct. 885, 45 L. Ed. 1200; Carson City Gold & Silver Min. Co. v. North Star Min. Co., 83 Fed. 658, 28 C. C. A. 333; Bunker Hill & S. Mining & Concentrating Co. v. Empire State-Idaho Mining & Developing Co., 109 Fed. 538, 48 C. C. A. 665. The patent does not necessarily assert a discovery prior to the date of entry for patent, however. CREEDE & C. C. MIN. & MILL. CO. v. UINTA TUNNEL MIN. & TRANSP. CO., 196 U. S. 337, 25 Sup. Ct. 266, 49 L. Ed. 501. While the patent raises a conclusive presumption that there is an apex of a vein within the ground patented, there is no presumption that it is the vein in dispute, nor that it dips beyond the side lines. GRAND CENTRAL MIN. CO. v. MAMMOTH MIN. CO., 29 Utah, 490, 83 Pac. 648. See, also, United States Min. Co. v. Lawson, 134 Fed. 769, 67 C. C. A. 587; LAWSON v. UNITED STATES MIN. CO., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed. 65; DAVIS v. SHEPHERD, 31 Colo. 141, 72 Pac. 57.

20 EMPIRE STATE-IDAHO MINING & DEVELOPING CO. v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO., 114 Fed. 420, 52 C. C. A. 222; Fox v. Mackay, 1 Alaska, 329; Last Chance Min. Co. v. Bunker Hill & S. Mining & Concentrating Co., 131 Fed. 579, 66 C. C. A. 299. After patent it is conclusively presumed that all the preliminary requirements have been properly carried out. GALBRAITH v. SHASTA IRON CO., 143 Cal. 94, xviii, 76 Pac. 901, 1127; Talbott v. King, 6 Mont. 76, 9 Pac. 434; Chambers v. Jones, 17 Mont. 156, 42 Pac. 758; SHARKEY v. CANDIANI, 48 Or. 112, 85 Pac. 219, 7 L. R. A. (N. S.) 791. As to surface not in conflict with the senior location the patented junior ground will not be deemed the senior; and hence, where a broad vein is bisected in its course by the side lines of the two locations as they lie after the patenting of the junior, the one first located will have the extralateral rights. United States Min, Co. v. Lawson, 134 Fed. 769, 67 C. C. A. 587; LAWSON v. UNITED STATES MIN. CO., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed. 65. By a California statute a statement of the date of

while two out of three states hold-erroneously it is believed

that

a location which does not exceed the legal limits for a single claim is nevertheless excessive to the extent that, because of the irregular course of the vein, more than the legal number of feet on each side of the vein is embraced in it, they so hold only as regards unpatented claims; for, once a patent is issued for that kind of a location, it is no longer open to attack as excessive.22

Patent also confers certain advantages in a contest for extralateral rights.28 Extralatral rights are discussed in the next chapter. But it may be well to note, as a corollary to the doctrine about excessive locations just stated, that a patent establishes that any secondary known or blind vein apexing within the patented ground belongs to the patentee, even though it may be more than 300 feet away from the discovery vein.24 Still another advantage of a patent in the case of a placer is that all lodes discovered after application for placer patent belong to the patentee.

With the delivery of a patent the title which the United States had in the patented property vests in the patentee. He takes a new start

location of a claim or claims contained in a United States mineral land patent is made prima facie evidence of the date of location. St. Cal. 1905, p. 78, c. 81. 21 WATERVALE MIN. CO. v. LEACH, 4 Ariz. 34, 33 Pac. 418. See chapter XII, § 55a (2), supra.

22 PEABODY GOLD MIN. CO. v. GOLD HILL MIN. CO. (C. C.) 97 Fed. 657; Id., 111 Fed. 818, 49 C. C. A. 637; ARGONAUT CONSOLIDATED MINING & MILLING CO. v. TURNER, 23 Colo. 400, 48 Pac. 685, 58 Am. St. Rep. 245. The patent is conclusive as to the limits of the claim. WATERLOO MIN. CO. v. DOE (C. C.) 56 Fed. 685; Id., 82 Fed. 45, 27 C. C. A. 50. It sometimes happens that the calls in a patent do not agree with the monuments on the ground, and Congress has therefore enacted that the monuments shall govern. Act April 28, 1904, c. 1796, 33 Stat. 545 (U. S. Comp. St. Supp. 1907, p. 477), amending Rev. St. U. S. § 2327 (U. S. Comp. St. 1901, p. 1431). Compare Galbraith v. Shasta Iron Co., 143 Cal. 94, xviii, 76 Pac. 901, 1127; Alaska Gold Min. Co. v. Barbridge, 1 Alaska, 311; Meydenbauer v. Stevens (D. C.) 78 Fed. 787.

23 See Carson City Gold & Silver Min. Co. v. North Star Min. Co., 83 Fed. 658, 28 C. C. A. 333. In determining priority as to surface conflicts, the patent determines priority as to incidental extralateral rights. EMPIRE STATEIDAHO MINING & DEVELOPING CO. v. BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO., 114 Fed. 420, 52 C. O. A. 222. But not priority as to extralateral rights dependent on the question of which location containing only part of the width of a broad vein is senior. LAWSON v. UNITED STATES MIN. CO., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed. 65.

24 See note 22, supra. All blind veins apexing in the patented ground belong to the patentee. CALHOUN GOLD MIN. CO. v. AJAX GOLD MIN. CO., 182 U. S. 499, 21 Sup. Ct. 885, 45 L. Ed. 1200. With the exception, of course, of those covered by a prior tunnel site. CREEDE & C. C. MIN. & MILL. CO. v.

in the world as a fee-simple owner.25 Even the running of the statute of limitations against him is stopped by the patent, and its running must now date from the patent.26 The United States was not subject to the statute of limitations, and its grantee gets all the right it had. What is more, once the government has parted with title, all right to recall it, except by resort to a suit in equity, is gone.27 It is in the conclusiveness of title to the land owned, and to every part thereof, that a patent excels a location, 28 while the disadvantages of patent are few.*

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

25 After patent no parties have the right to enter upon the land and prospect for mineral. FRANCŒUR v. NEWHOUSE (C. C.) 40 Fed. 618.

26 REDFIELD v. PARKS, 132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 327. See Tyee Consol. Min. Co. v. Langstedt, 136 Fed. 124, 69 C. C. A. 548.

27 "With the title passes away all authority or control of the executive department over the land and over the title which it has conveyed. It would be as reasonable to hold that any private owner who has conveyed it to another can, of his own volition, recall, cancel, or annul the instrument which he has made and delivered. If fraud, mistake, error, or wrong has been done, the courts of justice present the only remedy. These courts are as open to the United States to sue for the cancellation of the deed or reconveyance of the land as to individuals, and if the government is the party injured this is the proper course." MOORE v. ROBBINS, 96 U. S. 530, 533, 24 L. Ed. 848. Even a patent issued on an erroneous survey can be corrected only by suit, unless the patentee will surrender the patent and make a deed to the United States of the erroneously included land. UNITED STATES v. RUMSEY, 22 Land Dec. Dep. Int. 101. See Baldwin Star Coal Co. v. Quinn, 28 Land Dec. Dep. Int. 307. 28 The added dignity given by a patent is recognized by a Montana case, which holds that a one-year state statute of limitations applicable to mining claims does not apply to patented property. Horst v. Shea, 23 Mont. 390, 59 Pac. 364. See, also, Rader v. Allen, 27 Or. 344, 41 Pac. 154.

* One disadvantage of a patent is that in a state where dower exists it will attach to a patented claim, but will not to an unpatented. BLACK v. ELKHORN MIN. CO., 163 U. S. 445, 16 Sup. Ct. 1101, 41 L. Ed. 221. Of dower in patented ground the Tennessee court said: "We hold, therefore, that dower is assignable to the widow in mines, quarries, and the like, and she may enjoy the same, either by an allotment of metes and bounds, or by a share of the rents and royalties, whether the mines or quarries were opened and operated in the life of the husband, whether the same be operated by the husband, or by lessee paying rent or royalty on the yield." Clift v. Clift, 87 Tenn. 17, 25, 9 S. W. 198, 360. Another disadvantage of patent is that after patent it is no longer possible to swing the claim or adjust boundaries, so as to make the location lie along the subsequently ascertained course of the vein, or so as to make the end lines parallel.

EFFECT OF PATENT OF PLACER ON KNOWN LODES IN THE

PLACER.

109. It has been decided that the holder of a patent to a placer, which

includes a known lode not mentioned in the application for placer patent, has no title to such known lode, and cannot disturb the peaceable possession of such lode by another, whether that other claims title or is a mere trespasser.

The subject of known lodes in placers has been discussed several times already; 29 but it is desirable to note here that it has been decided that the holder of a patent to a placer, which includes a known lode not mentioned in the application for placer patent, has no title to such known lode, and cannot disturb the peaceable possession of such lode by another, whether that other claims title or is a mere trespasser. In chapter XXI, § 113, the soundness of this doctrine. is doubted.

30

DIRECT ATTACKS ON PATENTS.

110. A patent may be set aside for fraud by a suit brought in equity by the United States within six years from the date of the patent's issuance, provided the property has not previously been conveyed to innocent purchasers for value, and provided the United States establishes its case by a preponderance of the evidence.

31

A suit by the United States to annul a patent must be brought within six years after the date of the issuance of the patent. The burden of proof as to fraud is on the government, although in consequence it has to establish a negative proposition.32 The suit will not lie as against an innocent purchaser for value,33 but as against the patentee or a

29 See chapter XV, $$ 75-77, and chapter XVIII, § 101a.

30 REYNOLDS v. IRON SILVER MIN. CO., 116 U. S. 687, 6 Sup. Ct. 601, 29 L. Ed. 774; Noyes v. Clifford (Mont.) 94 Pac. 842. Compare IRON SILVER MIN. CO. v. CAMPBELL, 135 U. S. 286, 10 Sup. Ct. 765, 34 L. Ed. 155.

31 Act March 3, 1891, c. 561, § 8, 26 Stat. 1099 (U. S. Comp. St. 1901, p. 1521). A five-year period was fixed as to patents issued prior to the act. The Supreme Court of the United States has construed the statute to bar suits to set aside patents invalid when made and issued prior to the act. United States v. Chandler-Dunbar Water Power Co., 209 U. S. 447, 28 Sup. Ct. 579, 52 L. Ed. 881. 32 COLORADO COAL & IRON CO. v. UNITED STATES, 123 U. S. 307, 8 Sup. Ct. 131, 31 L. Ed. 182; 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.

33 COLORADO COAL & IRON CO. v. UNITED STATES, supra; UNITED STATES v. WINONA & ST. P. R. CO., 67 Fed. 948, 15 C. C. A. 96; United States v. Clark, 138 Fed. 294, 70 C. C. A. 584.