The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1920-05-27

IN the case of Bunker Hill and
5. NJ. & c. Co V. Empire State, Idaho
NJ. & d. Co., 100 Fed. 5SS, this court
held. among other things that an ap-
plication for a patent of a mining
claim carries with it an implied. if
not an express, allegation that the To-
cation was made upon ground at the
time open to location. and was there
fore prior to the location of anyone
else; and that the issuance by the
government of a patent therefore con-
clusively determines the priority of
that location over any other, and con-
fers upon the patentee not only the
title to the entire surface of the claim
but also all extra Lateral rights given
by statute, as against the owner of an
unpatented conflicting claim.
Some years later. in the case of
Lawson v United States Min. Co, 2O7
u. S. 1, the court held that while one
in possession of the surface of a mi
ming claim under a patent from the
United States. is presumably in pos
session of all beneath the surface and
may sue to quiet title to a vein be-
meath such surface and to enjoin the
removal of ore therefrom. if in the
proceeding in the land office for the
procuring of such patent no adverse
claim was made, the patent carries no
presumption that anything was con-
sidered or determined except the
question of the right to the surface,
saying at page 16:
"A patent is issued for the land de-
scribed and all that is necessarily de-
termned in an adverse suit is the
priority of right to the land. This is
evident from Section 1925 Rev. Stat,
which says:
"'"A patent for any land claimed
and located for valuable deposit may
be obtained in the following manner:
In the section the only matters men,
toned for examination and considera-
ton relate to the surface of the
ground. There is no suggestion or
provision for any inquiry or determin-
alton of the subterranean rights
In the late case in this court of
Butte & S. Copper Co. " Clark Mon
tana Realty Co, PAS Fed 6O9. this
court. as in duty bound followed the
decision of the supreme court in
Lawson V. United States Min. Co.
supra, saying:
1.-THE doctrine of the decision in
the Lawson case is that an adjudica-
ton by the land Office of the question
of surface rights does not necessarily
determine the question of under
ground rights. and that those rights
not being subject to adverse claims,
the failure to adverse does not estop
the parties to ltigate the question of
priority Therefore, we must now
take the law to be that the question
Of priority of discovery as between
The Evening Star claim of the appel
ant and the Grouse claim of the ap-
oellee was not determined by the is
;uance to the latter of the patent for
he Grouse claim; and the question OF
priority of discovery not being thus
determined, we are unable to see how
he Grouse patent can be held to carry
my presumption or inference re-
pecting the question of priority of
discovery as between the Evening
tar and the Grouse claims for in
he Lawson case, as has been seen.
he supreme court distinctly adjudged
hat the government patent to such
laims carries no presumption that
ny thing was considered or deter
lined except the question of the
ght to the surface
yet, for presumption or inference
l favor of the Grouse claim in that
egard INDUCED by the court below.
ne latter expressly declared it would
nd from the evidence (and we think
ghtly) that the statutory discovery
as first made upon the Evening
tar claim The court below in it's
olding in that respect relied upon
lie decision of the court in the case
Vogel V. Warsing, 146 Fed. 949 951.
here one of the points relied upon
7 the appellant being that the record
ntained no proof of the discovery of
I'D in the ground in dispute, this
urt said, in answering the point:
g 1t has been held that under such
the certificate of loca-
N creates a presumption of discov-
y of mineral and of a valid location.
Iarris V. Equator Mining & SmeIt
2 Co. &C.. c. 8 Fed 500, McCrary
Cheesman V. Hart &C. c. 40 Fed.
}. Especially should such a pre-
nption be INDUCED in a summary
oceeding instituted at the beginning
a suit where the granting or with
ding of an injunction depends upon
facts presented by af1idavits and
It's largely in the discretion of the
al court and where subsequent 10
or attacks the title of the prior To-
or or that Of his successor in in
est
Not only did the supreme court
in the Lawson case that no such
sumption arises even by virtue of
atent, but at its present term (Ad-
ice Sheets March IS, 1920 in the
of Cole ct al. V. Ralph it was
that where there is much evil
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