the State of Missouri, or to the railroad com- claims, a grant which was also a gratuity? pany, by the Act of 1852. The latter Act The matter to be shown is one of observation contained a reservation from the grant for the and examination, and whether arising before railroad of all lands theretofore conveyed or the Secretary, whose duty it was primarily to disposed of by the United States. Here then decide it, or before the court, whose duty it were two grants of the same lands by the became because the Secretary had failed to do United States, these grants operating as effec-it, this was clearly the best evidence to be had, tually as patents to convey title to the property and was sufficient for the purpose.' described in them. It became necessary in the suit to ascertain which of these was the superior title. The elder grant prima facie, to wit, the grant of the swamp lands to the States, which we have said was a grant in præsenti, was the better title. But the question arose as to how it could be shown that this was swamp land within the meaning of the Act of 1850, and therefore passed by that Statute, and could not afterwards be transferred by the Act of 1852.

own manner, and establishes his own claim, | patent, needs no judicial action to determine
and the officers of the government frequently what it is that is reserved.
do not know that there is any other party
claiming the same land, while there may be
such a party who has also taken proper steps,
and whose rights are superior to those of the
party presenting himself before the officers of
the government. It is this ex parte proceeding
which is supposed to bind the claimants under
the Moyer patent conclusively and forever in
regard to their knowledge of the existence of
this Sierra Nevada lode at the time they made
application for their patent within its limits.

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 land 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 those 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 opponent. Where each party has a patent from the government, and the question is as to the superiority of the title under those patents, if this depends upon extrinsic 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. [293] having issued a patent, can by the authority of its own officers invalidate that patent by the issuing of a second one for the same property. If it be said that the question of the reservation of this vein as a known lode under the law on that subject makes a difference in this respect, and that the land office has a right to inquire whether such lode existed, and whether its existence was known to the patentee of the first patent, we answer that a patent issued under such circumstances to the claimant of the lode claim may possibly be such prima facie evidence of the facts named as will place the parties in a condition to contest the question in a court.

But we are of opinion that it is always and ultimately a question of judicial cognizance. The first patent conferred upon Moyer the right to this vein and to all other veins within the limits of his fifty acres of placer claim. There is excepted from that grant any lode existing and known at the time application was made for his patent. Whether such a lode did exist, and whether it was known to him, is & question which he has a right to have tried by a court of justice, aud from which he cannot be excluded by the subsequent action of the officers of the Land Department. It is not necessary to consider whether there may not be reservations of a character which could be thus disposed of by the proper land offices; for instance, a reservation of any land hereto fore patented or granted to other parties. There is nothing there to decide but to look at the records of the land office and see whether any land within that boundary ever had been granted. A reservation of a specific boundary, laid down so as to be identified, in the first

But in the present case, two facts requiring judgment, discretion, knowledge of the law and the balancing of testimony are essential to the exercise of the right to grant the property to some other party. One of these, the existence of such a vein, is a question often of great conflict of evidence, requiring the weighing of testimony. The other, the most important of all, the most difficult to decide, the least likely to be decided correctly by ex parte testimony or in ex parte proceedings, is the question whether, if such mine existed, it was known to the party who applied for the patent at the time application was made. And while we are not prepared to say at this time that the land officers cannot, on a prima facie case, decide the right of the applicant to such vein and give him a patent for it, we are satisfied that in any conflict between the title conferred by two patents, whether it be in law or in equity, the holder of the title under the elder patent has a right to require that the existence of the lode, and the knowledge of its existence on the part of the grantee of the elder patent, should be established. Here we have a remarkable fact, the absence of any evidence of a contest before the Land Department on that subject, and of any hearing on the part of the owner of the elder title. We have no finding or assertion of the existence of such fact in the junior patent, or that it was established even by ex parte proceedings before the officers of the government; and the introduction of evidence, on the trial in this case, on that subject, was ignored as any part of the case on which the judgment of the court was based. It rests solely, and, as the court says, conclusively, on the presumption that the officers of the gov ernment did their duty in the matter, and that what they decided is incapable of contradiction.

The case in this court bearing the nearest analogy to the one before us is that of Hannibal & St. J. R. Co. v. Smith, 76 U. S. 9 Wall. 95 [19: 599]. By the Act of September 28, 1850, all the swamp and overflowed lands belonging to the United States were given to the States within which they laid. The Secretary of the Interior was directed by the Statute to ascertain and distinguish these lands and certify them to the several States, and it has been repeatedly held by this court that the Act itself was a present grant of all such lands. Congress subsequently, by the Act of June 10, 1852, granted the right of way and a portion of the public lands to the State of Missouri, in aid of the construction of railroads. This grant was accepted by the Legislature of Missouri, which, by a statute, vested the land granted in the Hannibal and St. Joseph Railroad Company, the company having located its road, whereby the even-numbered sections and quarter-sections granted to the State for the use of said road were ascertained. The railroad company, finding Smith, the defend ant, residing upon and claiming one of these quarter-sections, brought an action of ejectment to recover possession. Smith defended on the ground that the land was swamp land, and the title passed from the United States by the Act of 1850, and could not be granted to

[294]

[295]

the State of Missouri, or to the railroad com- claims, a grant which was also a gratuity?
pany, by the Act of 1852. The latter Act The matter to be shown is one of observation
contained a reservation from the grant for the and examination, and whether arising before
railroad of all lands theretofore conveyed or the Secretary, whose duty it was primarily to
disposed of by the United States. Here then decide it, or before the court, whose duty it
were two grants of the same lands by the became because the Secretary had failed to do
United States, these grants operating as effec-it, this was clearly the best evidence to be had,
tually as patents to convey title to the property and was sufficient for the purpose.'
described in them. It became necessary in
the suit to ascertain which of these was the
superior title. The elder grant prima facie, to
wit, the grant of the swamp lands to the States,
which we have said was a grant in præsenti,
was the better title. But the question arose as
to how it could be shown that this was swamp
land within the meaning of the Act of 1859,
and therefore passed by that Statute, and
could not afterwards be transferred by the
Act of 1852.

[297]

[298]

proper fees, whereupon the whole proceedings
and the judgment roll shall be certified by the
register to the commissioner of the General
Land Office, and a patent shall issue thereon
for the claim, or such portion thereof as appli-
cant shall appear, from the decision of the
court, to rightly possess. If it appears from
the decision of the court that several parties
are entitled to separate and different portions
of the claim, each party may pay for his por-
tion of the claim, with the proper fees, and
file the certificate and description by the sur-
veyor-general, whereupon the register shall
certify the proceedings and judgment rolls to
the commissioner of the General Land Oilice,
as in the preceding case, and patents shall issue
to the several parties according to their respect-
ive rights."

in the manner prescribed in the Statute, before
some judicial tribunal located in the neighbor-
hood where the property is, and that the result
of this judicial investigation_shall govern the
action of the officers of the Land Department
in determining which of these claimants shall
have the patent, the final evidence of title,
from the government. This view is consistent
with the entire Statute on the subject, and
some of its language is inconsistent with the
idea that any contest to be thus decided is be-
tween a party who already has the legal title to
the property which he claims and some other
party who is only setting up a claim to the
same property.

In the first place, its inapplicability to the
present case is shown by the requirement that
in all cases the successful party shall pay five
dollars per acre before he can get his patent.
This argues that it has no reference to a placer
patent, because for the land conveyed by a
placer patent the party is only required to pay

The argument we are considering assumes,
as a matter of law, that all that was required
of the owners of the Sierra Nevada claim, and
all that was required of the register and re-
ceiver of the land office in regard to these pub-two dollars and a half an acre.
lications, was done and had, and that therefore Again, the following language seems incon-
the owners of the Moyer patent are concluded sistent with the idea that one of the contesting
by the proceedings which are thus supposed to parties may already have a patent for the land
have taken place. There are two substantial in controversy, namely: "After such judg
objections to this view of the subject. The ment shall have been rendered, the party enti
first is, that if such proceedings were had, and tled to the possession of the claim, or any por-
resulted either in the trial of the adverse claim tion thereof, may, without giving further
before a court of justice, or in the failure of notice, file a certified copy of the judgment roll
Moyer or anybody else to assert an adverse with the register of the land office, together
claim, those proceedings are matters of public with the certificate of the surveyor-general that
record, and as, in this case, they must consti- the requisite amount of labor has been expended
tute the main reliance of those claiming under or improvements made thereon, and the de-
the Sierra Nevada patent, for the superiority scription required in other cases, and shall pay
of their title, this record should have been pro to the receiver five dollars per acre for his claim,
duced on the trial of the case; and that the together with the proper fees, whereupon the
mere opinion of the register and receiver of whole proceedings and the judgment roll shall
the land office as to what those proceedings be certified by the register to the commissioner
are and their effect upon the prior patent of of the General Land Office, and a patent shall
Moyer, should not be substituted for the pro-issue thereon for the claim, or such portion
duction of those proceedings themselves, copies
of which were easily obtainable at the land-
office department.

thereof as the applicant shall appear, from the
decision of the courts, to rightly possess. If it
appears from the decision of the court that sev-
Another reason, which we think more satis-eral parties are entitled to separate and different
factory, is that a careful examination of this portions of the claim, each party may pay for
Statute concerning adverse claims leads us to his portion of the claim,
and patents
the conviction that it was not intended to affect shall issue to the several parties according to
[299] a party who, before the publication first re- their respective rights."
quired, had himself gone through all the regu
lar proceedings required to obtain a patent for
mineral land from the United States, had es-
tablished his right to the laud claimed by him,
and received his patent, and was reposing
quietly upon its sufficiency and validity. It
is true that there are no very distinctive words
declaring what kind of adverse claim is re-
quired to be set up as a defense against the
party making publication; but throughout the
whole of these sections and the original Stat-
ute from which they are transferred to the
Revised Statutes, the words "claim" and
"claimant" are used. This word is, in all
legislation of Congress on the subject, used in
regard to a claim not yet perfected by a title
from the government by way of a patent.
And the purpose of the Statute seems to be,
that where there are two claimants to the same
mine, neither of whom has yet acquired the
title from the government, they shall bring
their respective claims to the same property,

It is too obvious to escape comment that by this proceeding there are brought before the court adverse claimants to mineral land, and that the party who succeeds in establishing the superior right to the possession shall have a patent. This may be the party who institutes the original proceeding or it may be the party who sets up the adverse claim. Whichever of these two establishes his better right to the possession, gets the patent. How can this apply to a case where one of the parties already has a patent? How can he be required to pay again for the land for which he has already paid all that the law requires? How can he be required to establish before the land office his right to the possession of a mine for which that office has already granted him a patent?

And again, how can such a case be brought within the terms of a statute which provides that, where "several partics are entitled to separate and different portions of the claim, each party may pay for his portion of the claim,

[300]

[301]

with the proper fees," etc., "and patents shall |
issue to the several parties according to their
respective rights." Why should a patent issue
to a party for that for which he already has a
patent? These expressions of the Statute, so
clearly applicable to parties who are only claim-
ants and have no title, show what the purpose
of Congress was in passing the law, and that it
was not intended that a party who had already
gone through all these proceedings and estab-
lished his right to the mine which he claims,
and received his patent for it, shall be put upon
the same level with mere claimants, who have
yet to establish their claim and prove their right
even to the possession, and that he is to be
brought before a judicial tribunal to make a
contest with a party who has no legal standing
in court to contest with him, who has the legal
title from the government.

And this is just and is sound policy. Why
should a party who has the legal title from the
government of the United States, on which he
relies with safety, be called upon to answer
every adventurer who digs a hole in the ground
thus conveyed to him and asserts a right to
mineral found in that ground? When he has
once obtained the patent of the United States
for his land, he should be only required to an-
swer persons who have some established claim,
and to contest with this party not before the
administrative departments, but in courts of
justice, by the regular proceedings which de-
termine finally the rights of parties to property.
For these reasons we do not believe that these
sections, 2325 and 2326, are intended to apply
to the case of a party who has a prior patent
for the land which may be the subject of con-
troversy before the register and receiver of the
land office. Is it fair and just that the party
who has gone through all the processes which
the laws of the United States require of him to
obtain title to its lands, and has obtained that
title, shall be subjected by the officers of the
government of the United States to defend that
title before them from the attacks of an out-
sider?

We have more than once held that when the government has issued and delivered its patent for lands of the United States, the control of the Department over the title to such land has ceased, and the only way in which the title can be impeached is by a bill in chancery; and we do not believe that, as a general rule, the man who has obtained a patent from the government can be called to answer in regard to that [302] patent before the officers of the Land Depart ment of the government. U. S. v. Schurz, 102 U. S. 378 [26: 167].

For these reasons we are of opinion that the circuit court in refusing to consider the testimony found in the case in regard to the known existence of the vein of the Sierra Nevada claim at the time of the application for the Moyer patent, was in error; and also that it was erroneous to hold that, on the face of the patent for the Sierra Nevada mine, the exist ence of this vein and the knowledge of its existence were to be conclusively presumed in this action.

135 U. S

The judgment is reversed, and the case is remanded to the Circuit Court, with a direction to grant a new trial.

Mr. Justice Brewer, dissenting:

I am unable to agree with the opinion of the court, delivered by Mr. Justice Miller.

A placer patent and the Statute under which it is issued expressly provide that it shall not include any known lode or vein. So, if within the limits of placer ground there be a vein or lode bearing gold or other mineral of precious value, and that vein or lode was known at the time of the application for the placer patent, it did not pass under the patent. It was as much excepted from its terms as though it were in an adjoining State. It was territory carved out by the very language of the patent and the Statute, and, not passing to the patentee, remained the property of the government, and subject to location and patent, as fully and in the same manner and upon the same terms, as any other mineral vein. Suppose a patent for agricultural lands by virtue of the Statute excepted all lakes, ponds and other bodies of water, who would doubt that the title to any lake or pond, within the territory described in such patent, remained in the government and subject to sale by it in any manner it deemed best; or that a title thereto, obtained in the manner prescribed by law, was paramount. So here. There is only one way and one tribunal provided for obtaining title to any vein [303] or lode, whether within or without the limits of placer ground, and that is by application in the land office. That way was pursued in this case, and a patent obtained. Whether this lode or vein was or was not within the limits of the placer patent depends upon no matter of law, but upon two questions of fact: first, Was there a vein bearing gold or other precious mineral within the limits of the placer territory? and, second, Was it known at the time of the application for the placer patent? These two questions of fact determine the question whether the placer patent took the whole surface ground, and all veins and lodes within its tertitory. Provision is made by statute for putting such questions of fact in issue. The adverse proceedings prescribed by statute are of common occurrence. It is the ordinary procedure. We have had cases involving such procedure before us this term. But I fear that this decision is equivalent to holding that such statutory adverse proceedings amount to nothing and are unworthy of notice. From Johnson v. Towsley, 80 U. S. 13 Wall. 72 [20: 485], to the present time, the uniform ruling of this court has been, that questions of fact passed upon by the Land Department are conclusively determined, and that only questions of law can be brought into court.

The right to this patent solely depends upon these two questions of fact, which were considered by the land office when the original patent was issued. I think that its determination upon them was conclusive.

I am authorized by the chief justice to say that he concurs in these views. 161