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Johns. 24; Field vs. Sebury, 19 How. 332; Moore vs. Wilkinso 13 Cal. 478; Boggs vs. Merced M. Co., 14 Cal. 279.

3 Whitaker vs. Williams, 20 Conn. 104; Boggs vs. Merced M. C 14 Cal. 279; Delaplaine vs. Hitchcock, 6 Hill (N. Y.) 16.

4 Commonwealth vs. Maltz, 10 Barr (Pa.) 531; Copeland vs. Cop land, 28 Me. 539; Brewer vs. Boston, &c. R. Co., 5 Metc. 479; Bog vs. Merced M. Co., 14 Cal. 279.

5 Boggs vs. Merced M. Co., 14 Cal. 279; Moye vs. Yappen, 23 C 306; Kelley vs. Taylor, 23 Cal. 11; Maine Boys' T. Co. vs. Boston Co., 37 Cal. 40.

6 Silver vs. Ladd, 7 Wall. 219. In a very recent case-an action law for the recovery of possession of a portion of a patented plac claim-the following points were made for reversal of judgment favor of defendants: (1) Error in admitting the record of procee ings in the land office to impeach the validity of the patent. Error in instructing the jury that a patent for a placer clai since the Act of 1870, could not embrace in any case more th one hundred and sixty acres. (3) Error in instructing the ju that the owner by purchase of several claims must take separa proceedings upon each one in order to obtam a valid pater and that it was not lawful for him to prosecute a single app cation upon a consolidation of several claims into one, or for t land officers to allow such application and to issue a patent ther on. These objections were held well taken, judgment was versed and the cause remanded. The grounds of the stated in the opinion, are that the lands conver

to be portions of the public domain not land department had undoubted jurisdicti tions of compliance with the law, so as the applicant was entitled to the pat being regular on its face, it could o proceeding for that purpose in the in the name of a party aggrieved who could connect himself with to show that his rights were i of the patent. Such proceedi the course of the opinion a d "location" and "claim," as the quantity of ground the holding that a patentable locations, regardless of siveness of the patent the regularity of its is

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How. 87) is cited. So, also, are the cases of Hoofnagle vs. Anderson, 7 Wheat. 212; Boardman vs. Reed, 6 Pet. 328-342; Bagnell vs. Broderick, 13 Pet. 436-448; Johnson vs. Towsley, 13 Wall. 72; Moore vs. Robbins, 96 U. S. 530-535. As showing the exceptions to this doctrine, based upon a want of jurisdiction in the land department to act, the principal cases cited are: Polk's Lessee vs. Wendell, 9 Cranch, 87; Patterson vs. Winn, 11 Wheat. 380. The general doctrine is thus summed up: "A patent, in a court of law, is conclusive as to all matters properly determinable by the land department, where its action is within the scope of its authority; that is, where it has jurisdiction under the law to convey the land." St. Louis Smelting and Ref. Co. vs. Kemp et al., U. S. Sup. Ct. (March 6, 1882.) Opinion by FIELD, J. MILLER and HARLAN, J. J., dissenting. In a still more recent case in the Supreme Court of Nevada, a patent was declared void in a proceeding at law. The following points were decided: 1. That the land department has no jurisdiction to determine whether a suit in support of an adverse claim is prosecuted with reasonable diligence (citing Elliott vs. Piersal, 1 Pet. 340. Opinion by SCHURZ, Sec. of Int., in Iowa Min. Co. vs. Bonanza Min. Co., Sickle's Min. Laws, 290. Opinion by CHANDLER, Sec. of Int., Sickle's Min. Laws, 296). 2. That courts have jurisdiction to review the action of officers of the land department (citing Johnson vs. Towsley, 13 Wall. 72). 3. That where a patent h

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Towsley, 13 Wall. 85; Stark vs. Starr, 6 Wall. 402; Silver vs. Ladd, 7 Wall. 228.) Several other questions of importance in mining litigation were decided, which, on account of the lateness of the decision it may prove impracticable to properly notice. Rose vs. Richmond Min. Co., Sup. Ct. Nev., March 16, 1882. Opinion by HAWLEY, J.

§ 66. Same-Estoppel by deed.-Where, previous to obtaining his patent, the patentee has executed a deed of warranty, or one containing covenants that he is seized of an estate in the land, he is estopped by his deed from setting up his subsequently acquired title against his grantee. Neither he, nor those claiming in privity with him, will be permitted to allege and prove by the subsequent patent that he was not so seized at the time of making the prior conveyance.1 But a covenant binding upon heirs, by grantors in possession, and asserting only a possessory title, having applied for a patent, that if they obtained the fee simple title to the property "from the government of the United States, they will convey the same" to the grantee, his heirs, etc., "by deed of general warranty,” was held to be a special and limited covenant, to take effect only in case the grantors or their heirs acquired title directly from the United States as contemplated when the covenant was entered into.2 In other words, that a title purchased from another patentee would not inure to the benefit of the special covenantee. And in the same case it was held that a warranty against the adverse right or title of any one, saving and excepting the United States, would not prevent the warrantor from subsequently acquiring the government title for himself. The latter proposition, however, would not apply where the deed contained covenants of seizin of an estate in the land conveyed, with which the patent title subsequently acquired would be inconsistent, as the deed would estop the covenantor from asserting title under the patent, particularly

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where the patent was applied for at the time of the conveyance, for reasons that will appear in the next section.

1 Landes vs. Brant, 10 How. 374; Van Renssalaer vs. Kearney, 11 How. 325; Lessee of French vs. Spencer, 21 How. 228.

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2 Comstock vs. Smith, 13 Pick. 116; Davenport vs. Lamb, 13 Wall

3 Davenport vs. Lamb, supra.

§ 67. When Patent takes effect.-When a patent has been regularly applied for, and the government price paid for the land, the purchaser has a vested right to the government title, which, as between him and the government, or any one claiming under it, is equivalent to the patent itself, and will, by relation back to the time when the application for patent was complete, cut off all intervening rights or claims to the granted premises.1 This taking effect by relation would operate as another obstacle to the assertion of any rights under the patent, as against the grantee of the patentee, in a case where the land was conveyed by the applicant pending the application. But while it is admitted that, so far as it is necessary to protect the rights of the patentee or those claiming under him, the patent will take effect by relation to the time he was entitled to it under the law, it is maintained that this doctrine is a mere fiction of law adopted by the courts, solely for purposes of justice, and is only applied for the security and protection of the person who instituted proceedings for the patent title, or some one who occupies a position in privity with him, who has acquired an equitable claim or right to the title.2 Therefore, this doctrine of relation cannot be invoked by one who claims under the statute of limitations, adversely to the patentee, to give character to his possession between the time when the patentee became equitably entitled to the patent, and the date of its issue, so


as to free such adverse possession from the objection that the statute of limitations would not run against the government. Nor does the doctrine of relation take effect, so as to cut off the rights of an earlier patentee of a mining claim under a junior location.4

1 Stark vs. Starrs, 6 Wall. 402; Lessieur vs. Price, 12 How. 59; Gibson vs. Chouteau, 13 Wall. 72.

2 Lynch vs. Bernal, 9 Wall. 315; Jackson vs. Bard, 4 Johns. 230; Heath vs. Ross, 12 Johns. 140; Gibson vs. Chouteau, 13 Wall, 72.

3 Wilcox vs. Jackson, 13 Pet. 516; Irwin vs. Marshall, 20 How. 558; Fenn vs. Holme, 21 How. 481; Lindsey vs. Miller, 6 Pet. 672; Gibson vs. Chouteau, 13 Wall. 72.

4 Eureka, &c. Co. vs. Richmond, &c. Co., 4 Sawyer, 302.

§ 68. What passes by patent.-When a patent to a portion of the public domain is regularly and lawfully issued, it clothes the patentee with ar indefeasible title to the land, and all fixtures and appurtenances that ordinarily pass by a grant of real estate, which are not reserved, either by act of Congress or by a special exception in the patent itself.1 In the cases cited, the question was raised with respect to a grant of land containing minerals, but which was not claimed and entered by the patentee, under the mining law, whether the precious metals contained therein passed to the patentee. In support of the negative, the old English doctrine of the royal right to mine for the precious metals was invoked and claimed for the state, as a necessary incident of its sovereignty, by analogy to the claim of exclusive rights of the same nature conceded to the British crown, as well as on the authority of an earlier state decision.2 But this doctrine was held by BURNETT, J., in a separate opinion,3 and by FIELD, C. J.,4 to be inapplicable. The royal right contended for is not based upon the ground that it is an "incident of sovereignty," but a personal prerogative of the king which he could alienate at pleasure. It was

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