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ing shown to be public land, and
the presumption being that all public
land is unoccupied ; and that it is
then incumbent upon defendant to
show that the location under which
he claimed titled was prior in time
and superior in right.

45. Golden Fleece Gold & Sil.
Min. Co. V. Cable Consol. Gold &
Sil. Min. Co., 12 Nev. 312; Scorpion


Sil. Min. Co. 7'. Marsano, 10 Nev.
370, overruling Blasdel v. Williams,
9 Nev. 161.

46. Golden Fleece Gold & Sil.
Min. Co. V. Cable Consol. Gold &
Sil. Min. Co., 12 Nev. 312.

47. Armstrong v. Lower, 6 Colo.
581. Compare Patterson v. Plitch-
cock, 3 Colo. 533.

48. Manuel v. Wolff, 152 U. S.
505; O'Reilly v. Campbell, 116 U. S.
418; Schultz 7'. AUyn (Ariz.), 48 Pac.
960; Anthony v. Jillson, 83 Cal. 296,
23 Pac. 419; McFeters v. Pierson,
IS Colo. 201, 24 Pac. 1076; Keeler
V. Trueman, 15 Colo. 143, 25 Pac.
311; Burke v. McDonald, 2 Idaho
646, 2>2< Pac. 49 ; Billings v. Aspen
Min. & Smelt. Co., 52 Fed. 250.
Compare Altoona Quartz Min. Co.,
V. Integral Quartz Min. Co., 114
Cal. 100, 45 Pac. 1047; McCar-
thy V. Speed, II S. D. 362, 77 N.
W. 590.

As to the Mode of Proving Citi-
zenship see supra this article " Citi-

49. Stolp V. Treasury Gold Min.
Co. (Wash.), 80 Pac. 817, where the
court said: "The object sought by
this litigation is to defeat the applica-
tion of appellants for a patent by
showing that appellants are not in
possession of the property, and are not
entitled to possession thereof. The
result of the trial, if successful, will
defeat the claim of appellant to a
patent. But further than that there
is no benefit to the respondents. The



3. Effect of Issuance of Patent. — A. As Against Direct At-
tack. — The presumption that the patent was issued by the officers
of the government charged with the aHenation of pubHc lands, upon
sufficient evidence that the law had been complied with, can only be
overcome by clear and convincing proof.'"^

B. As Against Collateral. Attack. — a. /;; Cciu-ral. — The
general rule is that issuance of a patent to a mining claim, valid on
its face, furnishes in a collateral proceeding conclusive evidence that
all steps antecedent to its issue were duly taken. ^^

b. Rcgiiloi'ity of Proceedings in Land Office. — So, too, the issu-
ance of a patent furnishes conclusive evidence of the adjudication
by the land office in favor of the patentee of all matters within its
jurisdiction, and of all matters of fact which should properly have
come before it.'^-

c. Jurisdiction of Land Office. — This rule does not apply in regard
to matters not within the jurisdiction of the land office. The patent
may be shown to be void by any competent evidence establishing a
want of authoritv for its issuance.^^

respondents must still do the re-
quired work, make an independent
application, and conform to the
United States statutes and rules of
the land department before they may
acquire a patent to their claim. CHp-
per Min. Co. v. Eli Min. & Land Co.,
194 U. S. 220. It was therefore un-
necessary for the respondents to
make the proof suggested by ap-

50. United States v. Iron Sil. Min.
Co.. 128 U. S. 673. See also Colo-
rado C. & I. Co. V. United States,
123 U. S. 307; United States v.
King, 83 Fed. 188.

51. United States v. Marshall Sil.
Min. Co., 129 U. S. 579; Creede &
C. C. Min. & Mill. Co. v. Uinta Tun-
nel Min. & Transp. Co., 196 U._ S.
337; Calhoun Gold Min. Co. v. Ajax
Gold Min. Co., 182 U. S. 499.

There can be no higher evidence
of title than a patent from the United
States government. In favor of the
validity and integrity of such an in-
strument we must presume that all
antecedent steps necessary to its is-
. suance were duly taken. Iron Sil.
Min. Co. V. Campbell, 17 Colo. 267,
29 Pac. 513.

Records of the Proceedings of the
Land Department upon wliich a pat-
ent to a mining claim was issued are
not admissible in evidence to impeach

the patent or its validity. Smelting
Co. V. Kemp. 104 U. S. 636.

52. United States r. Iron Si!.
Min. Co., 128 U. S. 673; Hamilton
V. Southern Nevada Gold & Sil Min.
Co., 33 Fed. 562; Gwillim v. Don-
nellan, 115 U. S. 45; Dahl v. Raun-
heim, 132 U. S. 260; Seymour v.
Fisher, 16 Colo. 188, 27 Pac. 240;
Butte Cit}' Smoke House Lode Cases,
6 Mont. 397, 12 Pac. 858; Kahn v.
Old Telegraph ]\Iin. Co., 2 Utah 174.

53. United States v. Minor, 114
U. S. 22,2, ; Smelting Co v. Kemp,
104 U. S. 636 ; Cullacott v. Cash Gold
& Sil. Min. Co., 8 Colo. 179. 6 Pac.
211; Garrard v. Silver Peak Mines,
82 Fed. 578.

Statement of Hule " Tliere is no

question us to the principle that
where the officers of die government
have issued a patent in due form of
law, which on its face is sufficient
to convey the title to the land de-
scribed in it, such patent is to be
treated as valid in actions at law as
distinguished from suits in equit}%
subject, however, at all times to the
inquiry whether such officers had the
lawful authority to make a convey-
ance of the title. But if those of-
ficers acted without authority, if the
land which they purported to convey
had never been within their control,
or had been withdrawn from that

VoL vin



d. Character of Land. — The issuance of the patent is conclusive
evidence of all matters concerning the mineral character of the land.^*

e. Citizenship of Patentee. — So, too, the issuance of the patent
is conclusive evidence of the citizenship of the patentee.^^

f. Conflicting Patents. — Where each party has a patent, and the
question is as to the superiority of title under those patents, if this
depends upon extrinsic facts not shown by the patents themselves,
it is competent to establish superiority of title by proof of those

g. Date of Location. — When a patent is issued for a mining claim
it relates back to the time when a valid location was first made, if
it has been regularly kept up, and the date of such location must be
determined by proof independent of the patent, unless the patent
itself fixes the date.^'^

control at the time they undertook to
exercise such authority, then their
act was void — void for want of
power in them to act on the
subject-matter of the patent — not
merely voidable; in which latter
case. if the circumstances jus-
tified such a decree, a direct
proceeding, with proper averments
and evidence, would be required
to establish that it was voidable,
and should therefore be avoided.
The distinction is a manifest one, al-
though the circumstances that enter
into it are not always easily defined.
It is, nevertheless, a clear distinc-
tion, established by law, and it has
often been asserted in this court that
even a patent from the government
of the United States, issued with all
the forms of law, may be shown to
be void by extrinsic evidence if it
be such evidence as by its nature is
capable of showing a want of au-
thority for its issue." Lakin v.
Dolly, 53 Fed. 333.

54. Cowell V. Lammers. 21 Fed.
200; Johnston v. Morris, 72 Fed. 890;
Smelting Co. v. Kemp, 104 U. S.
636; Irvine v. Tarbat, 105 Cal. 22,7,
38 Pac. 896; Dreyfus v. Badger, 108
Cal. 58, 41 Pac. 279; Carter v.
Thompson, 65 Fed. 329; Davis v.
Shepherd, 31 Colo. 141, 72 Pac. 57.

55. Billings v. Aspen Min. &
Smelt. Co., 52 Fed. 250, 3 C. C. A.
69; Justice Min. Co. v. Lee, 21 Colo.
260, 40 Pac. 444.

56. United States. — Iron Sil.
Min. Co. V. Reynolds, 124 U. S. 374;
Iron Sil. Min. Co. v. Mike & Starr
Gold & Sil. Min. Co., 143 U. S. 394 ;

Vol. vin

Sparks v. Pierce, 115 U. S. 40S ; Steel
V. Smelting Co., 106 U. S. 447.

Ariso)ia. — Kansas City Min. &
Mill. Cu. T'. Clay. 3 Ariz. 326, 29
Pac. 9.

California. — McGarrahan v. New
Idria Min. Co., 49 Cal. 331 ; Wede-
kind V. Craig, 56 Cal. 642.

Montana. — King v. Thomas, 6
Mont. 409, 12 Pac. 865.

" We do not believe that the gov-
ernment of the United States, 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 dif-
ference 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."
Iron Sil. Min. Co. v. Campbell, 135
U. S. 286.

57, It does not depend upon the
question as to which party made the
first application for a patent, or which
obtained a patent first. It is true
that the patent is conclusive of the
fact that at the time the application
therefor was made the applicant had


h. Pact and Date of Discozrry. — As between a lode claimant and
a tunnel site owner, the patent to the former, while conclusive evi-
dence of the fact of discovery, is not conclusive evidence of the date
of the discovery ; but it may be shown that mineral had not been
discovered prior to the location of the tunnel site.'**

i. Existence of Vein Within Limits of Placer Claim. — Where a
patent to a placer claim is issued and a subsequent patent is issued
on a lode claim within the boundaries of the placer claim, in any con-
flict between the titles conferred by the two patents the holder of the
placer patent has a right to require that the existence of the lode
and his knowledge thereof when he obtained the patent shall be
established. °'''

Knowledge of Existence of Vein Within Limits of Placer Claim.
On a question as to whether or not the patentee of a placer claim had
knowledge of the existence of a vein or lode within the limits of his
claim at the time of his application for the patent, the evidence to
establish the fact of knowledge must be clear and satisfactory.''"

j. E.ristcnce of Vein Within Limits of Toivnsite. — Tn a contro-
versy between an occupant under a townsite patent and a mineral
claimant under a location made subsequent to the issuance of the
townsite patent, the burden is upon the mineral claimant to prove
that the vein was known to be valuable for mining purposes within
the boundaries of the town lot in controversy at the date of the
issuance of the patent.**^


Tn a possessory action concerning a mining claim, while of course
the burden of proof is upon the plaintifif, it is a generally recognized
rule that proof of possession is prima facie evidence of title ; it is
presumptive of the ownership declared on, and unless overcome by

a valid location, and had. in all re- Min. Co. v. Campbell, 135 U. S. 286.

spects. fully complied with the re- 60. Iron Sil. Min. Co. v. Rey-

quirements of the mining laws; but nolds. 124 U. S. 374.

it does not fix the time when the lo- It is not competent to prove that

cation was made. In order to de- a lode or vein was known to exist

termine this question it is necessary within the limits of a placer claim

to introduce evidence independent by showing a common belief to the

of the patent. Last Chance Min. Co. effect that a horizontal or blanket

V. Tyler Min. Co., 61 Fed. 557. vein existed under the whole sur-

58. Creede & C. C. Wm. & Mill. rounding country. Such belief is
Co. V. Uinta Tunnel Min. & Transp. mere matter of speculation, and is
Co., 196 U. S. 352. not the knowledge required by the

59. It cannot be concluded, pre- statute. Sullivan v. Iron Sil. Min.
sumed and found from the face of Co., 143 U. S. 431.

the lode patent that the lode claim 61. The fact that the vein was

had been duly discovered, located, once profitably worked prior to the

placed and owned by the patentee issuance of the townsite patent will

within the exterior boundaries of the not warrant the presumption that it

placer claim before the time of the continued to be valuable down to the

application for the latter. Iron Sil. date of the patent, where it appears




evidence of a superior character is sufficient/'- And the same rule
is held to apply in an action to recover damages for trespass upon
the mining claim.*^ But where the right of possession of a mining
claim is founded upon an alleged compliance with the law relating
to a valid location, all the necessary steps therefor must, when con-
tested, be established by competent evidence."*

that work on the vein Iiad long be-
fore been abandoned. Richards v.
Dower, 8i Cal. 44, 22 Pac. 304, 307.

62. Lebanon Min. Co. v. Consol-
idated Rep. Min. Co., 6 Colo. 371 ;
Sears v. Ta3dor. 4 Colo. 38; Patchen
V. Keeley, 19 Nev. 404. 14 Pac. 347;
North Noonday Min. Co. v. Orient
Min. Co.. II Fed. 125.

The rule of law that a plaintiff in
ejectment must recover on the
strength of his own title does not
apply to one in the possession of a
mining claim who has been ousted
therefrom by a naked trespasser or
intruder, although the location by
the possessor is defective ; possession
alone is sufficient title to support the
action in such case. Meydenbaucr
V. Stevens, 78 Fed. 787.

A presumption is indulged that the
location was regularly made in the
first place, and the party in posses-
sion is allowed to remain so long
as he shall comply with the condi-
tions on which he holds the estate.
Harris v. Equator Min. & Smelt. Co.,
3 McCrary (U. S.) 14.

Where plaintiff claims. under
purchase and location, a small tract
of mineral land, with demarked lim-
it.s, of which he is in possession, and
there is no proof on the trial that
the extent of his claim is opposed to
the local rules, the presumption is
that his possession is rightful. In
such case the plaintiff need not show,
in the first instance, that he was in
possession in accordance with the
local laws; but may (as a vendee un-
der a deed may as to other land)
make a prima facie case upon pos-
session ; and this is enough until the
defendant shows that the possession
is wrongful because in violation of
rules which justify him in going
upon the premises and working them.
English V. Johnson, 17 Cal. 107, 76
Am. Dec. 574.

63. North Noonday Min. Co. v.
Orient Min. Co., 11 Fed. 125.

In Campbell v. Rankin, 99 U. S.


261, an action for damages to a min-
ing claim, decided in 1878, the court
said: "In actions of ejectment or
trespass quare clausmn fregit, pos-
session by the plaintiff at the time of
eviction has always been held prima
facie evidence of legal title, and, as
against a mere trespasser, is suffi-
cient. (2 Greenl. Ev., 311.) If this
be the law when the right of re-
covery depends on the strict legal
title in the plaintiff, how much more
appropriate is it as evidence of the
superior right of possession under
the acts of congress which respect
such possession among miners."

In Patchen v. Keeley, 19 Nev. 404,
14 Pac. 347, an action for trespass
upon the plaintiff's mine, where the
defendant in support of his action
for non-suit claimed that there was
no evidence before the court that the
plaintiff had discovered any lode,
ledge or deposit of ore within the
boundaries of his claim prior to the
date of his location, the court said :
" It is enough to say that plaintiff
was not obliged, as against defend-
ants,' to prove any better title than ac-
tual possession gave him. It was not
necessary for him to prove the dis-
covery of any lode within the bound-
aries of his claim prior to location.
In a word, in order to make a prima
facie case against defendants, having
shown possession, plaintiff was not
obliged to prove a valid location.
Defendants were not in position to
assail plaintiff's title. It was no an-
swer to plaintiff's proof of possession
to say that the title was in the gov-
ernment, or a third person, and not
in plaintiff."

64. Cheesman z'. Shreeve, 40 Fed.
787. See also Sullivan v. Hense, 2
Colo. 424 (an action of ejectment) ;
Waterloo Min. Co. z: Doe, 82 Fed. 46.

In Bevis v. Markland, 130 Fed. 226,
an action by a placer claimant against
one in possession claiming as a lo-
cator of a vein or lode mining claim
before the discovery of any vein of




1. In General. — The prcsumplion is that the owner of tlie mine
owns all valuable mineral deposits found within the surface lines of
his claim extended downward vertically."'^

2. Vein Having Apex Beyond Limits of Claim. — There is, how-
ever, some disagreement in the cases as to whether or not this
presumption persists in the face of evidence that the ore in contro-
versy belongs to a vein having its apex beyond the surface lines of
the claim wherein it is found. On the one hand it is held that this
presumption does so persist unless the opposite party, also claiming
the ore in controversy, establishes his title to it by virtue of his right
to follow his vein on its dip.^*^ Other courts, however, hold that
when there is evidence tending to show that the vein has its apex
beyond the surface lines of the claim in question this will rebut the
presumption of ownership, and that since the burden of proving
ownership is, when denied, always upon the party alleging it, he
must also meet and overcome this evidence or he will fail in estab-
lishing his title to the ore.*'^

mineral therein, it was held that the
plaintiff was not only required to
prove a strict compliance with the
law under which he was proceeding,
but that the burden was upon him
to prove that there was in fact, within
the disputed ground, no vein of me-
tallic ore which would justify the lo-
cation of a vein or lode claim.

65. Leadvillc Co. z\ Fitzgerald, 15
Fed. Cas. No. 8158; Mining Co. v.
Fitzgerald. 4 Morr. Min. Rep. 381.

66. Parrot Sil. & Copper Co. v.
Ileinze, 25 Mont. 139, 64 Pac. 326, 53
L. R. A. 491.

The presumption that an owner of
the surface is also the owner of ores
found beneath the surface is not
overcome by the opinion of an en-
gineer that, if a vein having its apex
in ground owned by another con-
tinues to dip at the same angle as it
dips where it is exposed in upper
levels, it will reach the point where
the owner of the surface is con-
<lucting operations. Heinze v. Bos-
ton & M. Consol. Copper & Sil.
Min. Co. (Mont.), 77 Pac. 421.

67. United States. — Consolidated
Wyoming Gold Min. Co. z'. Cham-
pion Min. Co., 63 Fed. 540 ; Jupiter
Min. Co. <■. Bodie Consol. Min. Co.,
1 1 Fed. 666. 7 Sawy. 96 ; Cheesman
V. Shreeve, 40 Fed. 787; Iron Sil.

Min. Co. 7'. Cheesman. 8 Fed. 297;
Doe V. Waterloo Min. Co.. 54 Fed.
935; Carson Citv Gold & Sil. Min.
Co. v. North Star Min. Co.. 83 Fed.
662. 28 C. C. A. 333-

Colorado. — Iron Sil. Min. Co. z:
Campbell, 17 Colo. 267, 29 Pac. 513.

Dakota. — Duggan z\ Davey, 4
Dak. no, 26 N. W. 887.

Montana. — Parrot Sil. & Copper
Co. V. Heinze. 25 Mont. 139, 64 Pac.
326, 53 L. R. A. 491.

See also Jones v. Prospect Moun-
tain Tunnel Co., 21 Nev. 339, 31 Pac.
642, where the court said : '' Doubt-
less the production of a patent to
the ground in which the ledge is
found makes out a prima facie case
for the plaintiffs ; that is, in the ab-
sence of any evidence tending to
prove that the ledge ape.xes outside
of the exterior lines of the plaintiffs'
patented ground it would be pre-
sumed to apex inside those lines.
(Mining Co. z'. Campbell, 17 Colo.
207; Cheesman v. Shreeve. 37 Fed.
Rep. 36). But when evidence is pro-
duced tending to show that the ledge
apexes outside those lines, this sim-
ply tends to prove that the plain-
tiffs, notwithstanding their patent, do
not own that ledge, and they must
now meet this evidence and over-
come it or they will fail in estab-

voi. vin




U])on an issue as to whether or not two veins unite on their dip,
evidence may be given as to the condition and existence of the same
lodes upon the surface, or in the underground workings of other
portions of the same vein.''*


1. The Right. — A. Rule in Equity. — It has long been rec-
ognized as being within the inherent powers of a court of equity,
irrespective of any statute, both in England and in the United States,
to grant an order permitting the inspection, examination or survey
of the workings of a mine ;"" and as ancillary to that power the

lishing tlicir title. As the plaintiffs'
ownership is denied, the burden of
proving it is all along upon them.
If the ownership depends upon
whether the ledge apexes inside the
exterior lines of the mine, then this
fact, the same as any other fact upon
which title depends, must be estab-
lished by the party asserting it. The
plaintiffs must recover upon the
strength of their own title; if they
do not own the ledge from which the
ore was extracted it matters not
who does own it. (Reynolds v. Min-
ing Co., supra.) Evidence showing
that the ledge apexes outside the
plaintiffs' ground is not offered to
establish a fact by way of confession
and avoidance of tlie plaintiffs' case,
as to which the burden would be
upon the defendant, but to show that
they never had any case, because they
never owned that ledge. The burden
o^ sliowing ownership being placed
by the pleadings upon the plaintiffs,
it never shifts to the defendant, ex-
cept in the limited sense already
spoken of."

In Bell V. Skillicorn, 6 N. M. 399,
28 Pac. 768. it appeared that defend-
ants had entered into the land in-
cluded within the side lines of the
ground covered by plaintiff's patent
and taken large quantities of ore
therefrom, and their defense was
that, as owners of an adjoining claim,
they had followed a lode, on its dip,
the apex of which was within their
claim, within the side lines of plain-
tiff's claim extended downward ver-
tically as, they claimed, they were
authorized in such case by act of
congress, and it was held that, upon


the introduction by the plaintiff of
his patent, the burden of proof as
to the existence of such facts as are
contemplated by that act, and of their
compliance with its provisions,
shifted, and was upon them.

In Driscoll v. Dunwoody, 7 Mont.
394, 16 Pac. 726, it was held that to
meet the prima facie proof of plain-
tiff the defendants were entitled to
show that the apex of the vein was
outside of the Lamb lode and within
the boundaries of other located
claims ; not for the purpose of con-
testing the title of plaintiffs to their
mining claim, but for the purpose of
showing that the ore was taken from
ground to which the plaintiffs did
not assert title, and which did belong
to others.

68. Consolidated Wyoming Gold
Min. Co. V. Champion Min. Co., 63
Fed. 540.

Ex parte evidence used by one of
the parties in obtaining his patent is
not competent upon a trial of an is-
sue of priority arising between the
owner of such patented claim and
the owner of an adjoining claim,
upon which issue the right to the
mineral below the junction depended.
Champion Min. Co. v. Consolidated
Wyoming Gold Min. Co., 75 Cal. 78,
16 Pac. 513

69. Earl of Lonsdale v. Curwen,
3 Bligh (O. S.) (Eng.) 168; Ben-
nett V. Whitehouse, 28 Beav. (Eng.)
119; Stockbridge Iron Co. z'. Cone
Iron Wks., 102 Mass. 80; Thomas
Iron Co. V. Allentown Min. Co.. 28
N. J. Eq. 77.

In Lewis v. Marsh, 8 Hare (Eng.)
97, it was said : " I think the case



court has the further power to order the removal of obstructions to
the inspection.^"

B. Statutes. — a. /;/ General. — In some of the mining states,
notably Montana, statutes have been enacted providing for the inspec-
tion, examination or survey of the workings of mines.'' The statutes
go no further than to declare the rule as it has existed for many
years, except that by their terms they extend the rule to all courts,
whether sitting as courts of law or equity,^- and also to authorize
inspection when no action is pending."

b. Coistitittionalify of Statute. — The constitutionality of the
Montana statute was vigorous! v assailed on various grounds, viz..

is one in which there is a necessity
that the part}' should be allowed
what he asks in order to prove his

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