The Sun. [volume] (Price, Utah) 1915-1932, 1920-11-26

WASHINGTON. ID. c., Nov. 90
Can the United States government,
twenty years after patenting coal
lands to fraudulent ontrymon 20 into
court and secure the cancellation Of
those patents on the plea that it has
only recently discovered the fraud
That interesting question is now be-
fore the supreme court in the case of
the United States of America vs.. the
Diamond Coal and Coke company. and
involves title 20 eighteen coal land en-
tries near Cheyenne, Wyo. The gov
eminent. through Frank X. Nebeker,
sets up the contention that IL has an
equitable right 10 cancel those entries
for fraud The coal company resists
the government 5 legal fight and in
sists that the government was
asleep when the fraud was COM
mitted, and during the six-year period
allowed by law for bringing the pat
onts into question. And IL now rests
with the supreme court 10 decide the
issue. Nebckcr made the argument in
this ease for the government. and wa
opposed By W. b. Rodgers of Butte.
Mont. and y. VI, Aushcrman of Chpy-
cnno, for the Diamond Coal and Coke
company. In % legal sense the cass
involves question of pleading. To
the luymun % presents several inter-
sting phases. From the briefs sub
miitrd. aud from the argument before
The supreme court, it appears that
eighteen different coal land cntrymcn
made entries between February "a.
1893 and September ~, 1908, cover
ing lands adjacent 90 the then hold.
ings Of the Diamond Coal aud Coke
company II Is disclosed that these
cntrymcn we're financed by the coal
company, and that Hs soon as they
acquired patents from the govern.
mcnt assigned their title 10 the Dia.
mond Coal and Coke company, and
this latter company, not only after
the transfer, hut before, exercised
control over the lands. and since nc
quiriug iia title has been working IA,
lands and developing coal.
NN AaAA NokiNN hANgNs
Notwithstanding this suspicious cir
cumsiancr, the land department, thai
~, The interior department aud gen
oral land office. had mo- notice OF
fraud iu connection with these cigh
tccn entries until November, 1916
whom 20 received O. report from d
special agent, advising that the on.
tries had been iuudulcnily made
That report formed the basis for d suil
brought by The government In IA,
United States district court of Myo
ming tp secure cancellation of the pnt,
cnis ou The ground of fraud. The dis,
trict court dismissed the government .
BILL and this action was affirmed b,
che United States circuit court of ap
penls ui san Francisco, and the gov
ernmcnt then appealed 10 the suprem,
court, which b. expected 10 hand dowi
~ decision during the present term.
The basis OF the government 3 sui
was that these patents had been Oh
tanned by fraud, the result of con
splracy between the coal company am,
the various entrymen, whereby Il wa
agreed that each of the enirymci
would make AN entry for a specifi,
tract, ostensihly for his own use an,
benefit, but in reality for the henefi
of the Diamond Coal and Coke com
pany In whose interest and no whosr
instlgaiIon the ontrymen were acting
'Ihe ultimate purpose of the con
spincN says Ncboker, twas 10 yes
IN the coal company the title 10 land
AZ was not lawfully entitled 90 taxi,
under the coal land laws because o
the limitation of the acreage for whicl
entry could be made on patent Sc
cured hy ana individual on a corpora
ton"
Patents Are Conceded.
The government comedies that th
patents had been issued from twely
40 twenty-unc years before suit wa
brought, and in order 10 get aroun,
the statute of limitations, which b
six years In such cases, the govern
ment charged that as a part of th
conspiracy the fraud was kept con
eealed until uncovered By the specia
agent lon November, 1916, since Whicl
time the suli has been pressed dill
gently In the lower courts tho gov
eminent lost ont, both ON the groun,
that the statute of limitations had nm
against the government and becaus
the government had not been suffi
oiently diligent in seeking for th
fraud within the siX-year period. Dur
ing the argument before the suprem
court Nebeker maintained that suf
ficient facts are set forth 20 avoid th
bar of the statute of limitations, an,
that the United States, suing in vim
dieation of its own rights, cannot b
held guilty of laches. The govern
ment, he maintained, is proceeding
not as a formal party, but in its owl
behalf and for the benefit of no othe
party,
The lower courts proceeded on IN
theory that because the government
could have made an investigation
sooner il was bound to do so, and il