Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1882-03-25

v. wendal. . crauch. 81; sioddard V. Chambers
2 How. 2S5; Morton v. Nebraska, 81 Wall. $50
Sherman v. Bruick, 93 u. 8. PIG.
In Folks Lessees v. Wendal, the facts showed
that the State of North Carolina attempted to
grant lands to which she had no title OF author
NY to grant. The Court declared the patent
void. Marshall, @. j., in delivering the opfn-
ion, said: "There are cases in which a grant
is absolutely void; as where the State has no
title to the thing granted: OF where the ofhcer
had no authority to issue the grant. In such
cases the validity of the grant is necessarily
examinAble at law" 70 Crauch, e9l.
In Stoddard v. Chambers, the facts showed
that q patent had been issued at q time when
the lands therein granted were expressly re-
served from sale. Mclean, j., in delivering
the opinion of the Court. said: N title can
be held valid which has been acquired against
law; and such is the character OF defendants
title, SO far as 1t touches on the plaintifs wv
The issuing of q patent is a ministerial act.
which must be performed according to lav**+
1t is true a patent possesses the highest verify.
1t cannot be contrsdicted or explained BY
parol. but If it has been fraudulently obtained
or issued against law ii is void. II would be a
most dangerous principle to hold that a patent
should carry the legal title, though obtained
frsudulently or against law. 800 The patent
of the defendant having been for land reserved
from such appropriation is void. u HOW
31S).
From the views already expressed it is ap-
parent that the District Court was correct In
its conclusion that the est. George patent was
issued without authority of law, while the
land embraced in the application was reserved
from sale as effectually as though there had
been q special Act of Congress excluding Y,
and that therefore it is absolutely void.".
9. Is the Victoria patent valid?
There is, as we have before stated, but one
lode within the boundaries of the Uncle Sam.
st. George and Victoria locations. This lode
was the coveted prize for which these locations
yrara vNaE1 -~l - -,A4oI AhA rAfAntC IN n
st. George and Victoria were issued. The apex
of this lode is within the surface ground
claimed by the Uncle Sam location and
throughout the argument 1t was conceded that
II the owners of this location have in all re-
spects complied with the law they will be en-
titled to the entire width of the lode. To re-
peat the facts.
When respondent made its application for
the st. George claim it included the identical
lode which was afterwards embraced in its ap.
plication for q patent to the Victoria. The
owners of the Uncle Sam claim protested
against this application, and brought an action
in the State Court, within proper time, to de-
termine which party had the better right to
the lode. They did not protest against the
second application Of respondent for a patent
to the same lode under the nams Of the Victoria.
Field j., in Eureka Con. M. Co. vs.. Rich
mond Mining Company Of Nevada, declared
that under the Act of Congress Of 1872, when
one is seeking a patent for his mining location
and gives proper notice of the fact as there
pfCcOElbtut ally OtutF Cldluhub OF ali uuDhL-
ented location Directing to the patent to the
claim, either on account of its extent or form,
or because of asserted prior location. must
come forward with his objections and present
them, or he will afterwards be ~precluded from
Directing to the issue of the patent. While,
therefore,, the general doctrine of relation ap-
plies to mining patents, so as to cut off inter-
vening claimants, If any there can be, deriving
title from other sources, y y = the doctrine
cannot be applied so as to cut off the rights of
the earlier patentee, under a later location,
where no opposition to that location was made
under the statute. The silence of the first To-
Gator is, under the statute, a waiver of his
priority" "a Law, 3181
These views are relied upon by respondent
and claimed to be conclusive in its favor, in
support of the validity of the Victoria patent.
But, it will readily be seen by an examination
of that decision that the question at issue here
was not presented in that case, and the lam
guage OF the eminent Judge who delivered
that opinion was not intended TO, and does
not. apply to q case like the present.
1t seems to us that substantially the came
reasons exist against the validity of the Vic
toria patent that existed against the st.
&c rye; and that, if the Court below was cor
rect in declaring the st. George void, it neces-
sar1ly follows, by every method OF sound
reasoning known to the law, that it was wrong
in the conclusion reached that the Victoria
patent was valid.
At the time tina the Victoria patent was
issued there was, as we have several times
declared, d valid and pending contest between
the respondent and appellants, in the State
Court, to determine the right OF possession to
the identical lode for which this as well as
the st. George patent was issued. During the
tendency of this contest the lode was reserved
from sale.
In replying to the question asked by the
Surveyor General of Colorado, "Was the re- |
survey of the Crown Point lode, made after the
filing Of said adverse claim and prior to the
final disposition of the said application by
this Office, legalg' the Commissioners of the
General Land Office said: 81 would state that.
after an application has been made for patent
for q given mining claim, such claim is virtu-
ally withdrawn from market, pending the
final disposition of the case" (~sickel's Min.
ing Decisions, 116)
The application Of J. B. Haggin for patent
to the Hurricane lode was dismissed by the
Commissioner, upon the ground that a great
portion of the land applied for was included
and hence at the date of Haggin's application
the same was not in the market. lSickel'g /
Mining Decisions, 24S.)
II the portion of the lode in controversy
issue for 1t until this suit is settled and deter
mined by the Courts.
A party, after applying for 8 patent to a
mineral lode under 8 given name, cannot,
after q contest is raised in the courts. and
while it is pending, make a second applica-
ton, under another name, to the same lode,
and, after obtaining q patent therefor, stand
in the doorway of the Temple Of Justice"
uLA "a I" Wv - I
regularly appeared and protested against the
application. "You annot enter these
halls to defend your rights because you did not
protest against my second application"
If party could legally make a second APP
plication for the same lode he could continue
without limit. AS soon as one protest was
filed he could Immediately make another ap- !
to the same lode under a different
name, and require the adverse claimant to
against each application and to bring
separate and distinct action in each case, and
make the same proofs, in order TO determine
the identical question at issue in the frst suit.
If this be the law, then a wealthy applicant
could in many cases soon exhaust the purse
as we'll as the patience of the adverse claim
ant, If he hould unfortunately be limited in
his means, however strongly he might be In
structed In the justice and right of his case.
We do not believe that the act OF Congress
such vain. useless and expensive pro-
eeedings. 1t points out with unusual clearness
the mode that each party must pursue, and
when the parties have once regularly brought
themselves within Its provisions their respect.
i've rights must be heard and determined IN
the manner therein designated. -
Under the facts of this case no patent could
be legally issued by the Government OF the
UNted States to that portion Of the lode In
controversy until the question as TO whicn
party has the better right to the possession OF
the lode is disposed OF by the courts, and
then the party having such better right is by
the provisions Of the statute entitled
to the patent. II this portion of the lode is
not reserved from sale until the contest uisr
posed of, then the provisions of the act OF
Congress are a delusion and a snare, "that
keep the word of promise to our ear and break
it to our hope"
Numerous other reasons have been assigned
by appellants against the validity Of the VIC
toria patent, some of which only go to the ex-
tent of making ii voidable instead of void but
in our opinion the views we have expressed are
correct and they are conclusive of the case. II
follows therefrom that the Victoria patent, IN
so far as 1t attempts to convey to respondent
any portion of the lode covered by the valid
portion of the Uncle Sam location 10 like the
st. George, absolutely null and void.
10. In cases where q patent is issued without
sort to a Court Of equity TO have II declared
void. The question OF its invalidity can be
raised and determined in any proceeding either
in law or equity. The authority OF the Court