Appeal from the Seventh Judicial District Court, Esmeralda County; Theron Stevens, Judge.
R. G. Withers and Dickson, Ellis & Schulder, for Appellant.
Curtis H. Lindley, Detch & Carney, Wm. E. Colby, Grant H. Smith, and Horatio Alling for Respondent. (For extracts from briefs, see 35 Nev. 405-412.)
By the Court, Norcross, J.:
The facts in this case presenting a somewhat novel as well as important question of law relative to the construction of a patent to a group of mining locations, and the petition for a rehearing having raised a doubt in the minds of members of the court as to the correctness of certain of the conclusions heretofore reached, and it appearing that we were in error in accepting as a fact the stateAppellant made no exclusion in favor of the Los Gazabo, either in its verified application for patent, or in its published notice, or in its final application to purchasecontained in the brief of respondent (35 Nev. 406), the court was impelled to grant a rehearing.
The case has been reargued and we have again carefully considered the questions involved, aided by the exhaustive briefs and the illuminating arguments of eminent counsel upon both sides of the case. As a result of the further examination we have given to this case, we are convinced that we were in error in adopting in their entirety the views expressed by the learned trial judge.
The character of the action is stated in the former opinion (35 Nev. 393, 129 Pac. 308). Reference is there made to the issues in the case, but we think it advantageous to quote in addition the following paragraph in the amended answer:
Denies that the plaintiff is now or ever was the owner of, possessed of, or entitled to the possession of, the Los Gazabo mining claim, situate in the Jefferson mining district, Nye County, Nevada, but admits upon information and belief that the plaintiff has by some means obtained an alleged patent for the said pretended Los Gazabo mining claim, which said alleged patent defendant alleges is without force or effect and wholly null and void because the same was not obtained or issued in pursuance of the statutes of the United States therein and for the providing of the issuance thereof.
For convenience of reference we incorporate in this opinion the diagram showing the relative situation of the Gold Leaf mining claim, the property of respondent,
and the Sunnyside-Los Gazabo group, the property of appellant. (Map)
We think it important also to set forth a portion of the language of the patent to this group, as the validity of that part of the patent which purports to grant title to the Los Gazabo claim is the ultimate question upon appeal in this case. The patent, in part, reads:
Whereas, In pursuance of the provisions of the Revised Statutes of the United States, chapter six, title thirty-two, and legislation supplemental thereto, there have
been deposited in the General Land Office of the United States the plat and field notes of survey and the certificate, No. 1315, of the Register of the Land Office at Carson City, in the State of Nevada, accompanied by other evidence, whereby it appears that the Round Mountain Mining Company did, on the twenty-eighth day of May, A. D. 1908, duly enter and pay for that certain mining claim or premises known as the Sunnyside No. 1, Sunnyside No. 2, Sunnyside No. 3, Sunnyside Fraction, and Los Gazabo lode mining claims, designated by the Surveyor-General as Survey No. 2815, embracing a portion of the unsurveyed public domain, in the Jefferson mining district, in the county of Nye and State of Nevada, in the District of Lands subject to sale at Carson City, and bounded, described and platted as follows: * * * [Here follows a description by courses and distances of the several mining claims which the patent purports to convey in the order first above mentioned in the patent.]
1-7. In view of the allegation in the answer that the patent to the Los Gazabo is void because the same was not obtained or issued in pursuance of law, it is well to consider to what extent a patent is subject to collateral attack.
We quote from Lindley on Mines, 2d ed., sec. 777, the following:
With the issuance of the patent the functions of the land department terminate.
It is the culmination of the proceeding in remthe final judgment of the tribunal specially charged with passing the government title. With the title passes away all authority or control of the executive department over the land and over the title which it conveys.
To the extent that we have already covered the field, it is unnecessary to do more than recapitulate the results heretofore reached as to the force and effect of this judgment.
(1) A patent for land is the highest evidence of title, and is conclusive against the government and all claiming under junior patents or titles until set aside or annulled. It is not open to collateral attack;
(2) The land department is a tribunal appointed by Congress to decide certain questions relating to the public lands, and its decision upon matters of fact cognizable by it, in the absence of fraud or imposition, is conclusive everywhere else;
(3) The government having issued a patent cannot, by the authority of its own officers, invalidate it by the issuing of a second one for the same property;
(4) A patent may be collaterally impeached in any action, and its operation as a conveyance defeated by showing that the department had no jurisdiction to dispose of the lands; that is, that the law did not provide for selling them, or that they had been reserved from sale, or dedicated to special purposes, or had been previously transferred to others;
(5) A patent is conclusive evidence that all antecedent steps necessary to its issuance have been properly and legally taken;
(6) It is conclusive evidence of the citizenship and qualification of the patentee; and,
(7) In cases of mining patents, that all matters which might have been the subject of an adverse claim have been conclusively adjudicated in favor of the patentee.
The same eminent author in section 742 says:
It is so well established as to be axiomatic that a failure to file an adverse claim within the time fixed by law operates as a waiver of all rights which were the proper subject of such a claim. The issue of a patent is equivalent to a determination by the United States in an adversary proceeding, to which the owner of the adverse right is in contemplation of law a party, that the applicant's and patentee's rights were superior, and those which might have been asserted by the holder of the adverse title were valueless. In other words, all matters which might have been tried under the adverse proceedings are treated as adjudicated in favor of the applicants, and all controversies touching the same are to be held as fully settled and disposed of, as though judgment had been regularly rendered in their favor. Where there is any surface conflict whatever, and there is a failure to
adverse, after the patent has been issued to the applicant, the question of priority of title is conclusively determined in favor of the patentee. A failure to assert adverse rights, however, will not estop an adverse claimant from protesting and bringing to the notice of the department such facts as tend to show noncompliance by the applicant with the requirements of the law.
In Empire State Co. v. Bunker Hill Co., 114 Fed. 420, Ross, J., speaking for the Circuit Court of Appeals, Ninth Circuit, Said: The application for the patent for the Last Chance was, as has been seen, for the whole claim, as indicated in the diagram hereinbefore set out, and carried with it, as has been said, the implied, if not the expressed, allegation that the location was made upon land at the time open to location, and was therefore prior to any location thereof by any one else. The issuance by the government of its patent, after due notice to all the world of the application, and ample notice to ever one to contest it, conclusively determined, as against every one whose surface lines conflicted therewith, the priority of that location over every other, including the Stemwinder, and conferred upon the patentees and their successors in interest not only the entire surface of the claim, but, as against every one whose surface lines conflicted with those of the Last Chance, the extralateral rights conferred by section 2322 of the Revised Statutes to follow on their dip outside of the side lines, and within vertical planes drawn through the parallel end lines extended in their own direction, all veins, lodes, or ledges the tops or apexes of which lie inside the surface lines of the claim. As a matter of course, in the absence of a surface conflict, there would be no ground for an adverse claim, and no question would arise of which the land department could take cognizance. Conflicts in respect to extralateral rights growing out of locations whose surfaces do not conflict, and which are therefore beyond the purview of the proceedings in the land department, are matters solely for the determination of the courts when brought before them.
See, also, same case, 109 Fed. 538, and ...