Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Cheney, Downer, Price & Hawkins, for Appellants.
J. B. Dixon, for Respondents.
By the Court, Coleman, J.:
This is a suit to determine the right of possession to a certain portion of the public domain of the United States. Plaintiffs base their right of possession upon
an alleged location of a placer mining claim; while the defendants rely upon rights asserted pursuant to filings under scrip, claiming that the land is nonmineral in character. In the trial court evidence was introduced by the respective parties to sustain their contentions. Judgment was rendered in favor of the plaintiffs, and defendants have appealed. The only issue in the case below was as to the character of the land; that is, whether it was mineral or nonmineral.
After the case had been docketed in this court on appeal, defendants made a motion for a stay of proceedings pending the determination by the land department of the United States of the character of the land in question. The motion was granted. On November 2, 1915, appellants made a motion in open court that the judgment of the lower court be modified, and that judgment be rendered in favor of appellants, for the reason that since the granting of the stay of proceedings appellants had acquired title to the land under a patent issued by the United States government, which was exhibited in open court. Respondents' position is that such a procedure as that sought by appellants is unheard of and revolutionary, contending that the case must be disposed of here upon the record made in the lower court.
1. It is invariably held that the determination by the land department of the character of land is conclusive, except in certain direct proceedings to set aside a patent for fraud, imposition, mistake, and the like. In Steel v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226, it is said:
We have so often had occasion to speak of the land department, the object of its creation, and the powers it possesses in the alienation by patent of portions of the public lands, that it creates an unpleasant surprise to find that counsel, in discussing the effect to be given to the action of that department, overlook our decisions on the subject. That department, as we have repeatedly said, was established to supervise the various proceedings whereby a conveyance of the title from the United
States to portions of the public domain is obtained, and to see that the requirements of different acts of Congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal, and is unassailable, except by direct proceedings for its annulment or limitation. Such has been the uniform language of this court in repeated decisions.
In Burfenning v. Chicago & St. Paul Ry., 163 U. S. 321, 16 Sup. Ct. 1018, 41 L. Ed. 175, Mr. Justice Brewer, speaking for the court, used the following language:
It has undoubtedly been affirmed over and over again that in the administration of the public land system of the United States questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the land department, one way or the other, in reference to these questions, is conclusive, and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be reexamined. (Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Smelting Company v. Kemp, 104 U. S. 636, 26 L. Ed. 875; Steel v. Smelting Company, 106 U. S. 447, 1 Sup. Ct. 389, ...