ROSS, Circuit Judge
(after stating the facts as above). [1] The court below held that it had jurisdiction, during the pendency of the applications for patents in the Land Department, to determine whether those proceedings were fraudulent and unlawful, and, if so, to annul by its judgment any and every interest in the property and in its contents claimed by the applicants, saying in its opinion:
“It is insisted, however, that as the applications for patents are now pending and undetermined in the Land Department the court will not assume jurisdiction, even if such applications are fraudulent and unlawful, until they are finally disposed of by the department. The Land Department is vested, conformably to the acts of Congress, with the exclusive jurisdiction to do[553]*553termine the rights of claimants to public lands, and until It has exhausted its jurisdiction by the issuance of a patent a court will not assume to determine which of two rival claimants is entitled to the property. Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Marquez v. Frisbie, 101 U. S. 473, 25 L, Ed. 800. But ihe government is not an adverse party to a proceeding to uequire title to its property, nor is the Land Department a tribunal to which it must submit its rights, or litigate with one who has taken, possession of its property or has attempted to acquire title thereto. The notice required by statute of an application for patent to a mining claim is designed and intended to cut off the rights oí private claimants, and not the government oí the United States. It, is given in order that all persons having adverse claims may be heal’d in opposition to the issuance of the patent. Tint (section 2325, R. S. [Cbmp. St. 3916, § 4022]), ‘if no adverso claim shall have bocal filed it shall be presumed that no adverse claim exists, and thereafter no objection from third persons to the issuance of patent shall be heard, except it be determined that ihe applicant has failed to comply with the terms of this chapter.’ If, however, an adverse claim is filed during the period of publication, the adverse claimant, is required by section 2328 (Ooinp. St. 1916, § 4623) to commence within 30 days thereafter proceedings in a court of competent jurisdiction to determine the same, thus clearly showing that the purpose of the statute is to make the proceeding binding on private partios and not the government.
“There is no reason to be found in the relation of the government to such a proceeding which will deprive it of the same right to relief, if the proceedings, are fraudulent or unlawful, as an individual would have in regard to his own contract procured under similar circumstances. Indeed, there are reasons why it should not be denied the right to invoke the aid of a court by the mere receipt and acceptance of an application for a patent and the purchase price by an officer of the local land office; for, as said by Mr. Justice Miller in United States v. Minor, 114 U. S. 233, 5 Sup. Ct. 836, 29 L. Ed. 110: ‘In nine cases out of ten, perhaps in a much larger percentage, the proceedings are wholly ex parte. In the absence of any contesting claimant for a right to purchase or secure the land, the party applying has it all Ids own way. He makes his own statement, sworn to before those officers, and he produces affidavits. If these affidavits meet the requirements of the law, the claimant succeeds, and what is required is so well known that it is reduced to a formula. It is not possible for the officers of the government, except in. a few rare instances, to know anything of the truth or falsehood of these statements. In the cases where there is no contesting claimant, there is no adversary proceeding whatever. The United States is passive; it opposes no resistance to the establishment of the claim, and makes no issue on the 'Statement of the claimant. When, therefore, he succeeds by misrepresentation, by fraudulent practices, aided by perjury, there would seem to be more reason why the United States, as the owner of land of which it has been defrauded by these moans, should have remedy against that fraud — all ihe remedy which the courts can give — than in the case of a private owner of a few acres of land on whom a like fraud has been practiced.’ I am. of the opinion, therefore, that the court has jurisdiction to try the questions involved iu these cases.”
We are unable to sustain that position of the learned judge, and are of the opinion that the case cited in support of it — United States v. Minor, 114 U S. 233, 5 Sup. Ct. 836, 29 L. Ed. 110 — in no respect does so. That was a suit brought by the government to annul a patent it had issued for land, on the ground of fraud practiced in the, procurement of its issue — a wholly different question, and one upon which the authorities are practically all one way. Among the very numerous cases upon the subject, see Johnson v. Towsley, 13 Wall. 72, 83, 20 L. Ed. 485; Steel v. St. Louis Smelting Co., 106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226; Marquez v. Frisbie, 101 U. S. 473, 25 [554]*554L. Ed. 800; United States v. Schurz, 102 U. S. 378, 26 L. Ed. 167; Cosmos Exploration Co. v. Grey Eagle Co., 190 U. S. 301, 315, 23 Sup. Ct. 692, 24 Sup. Ct. 860, 47 L. Ed. 1064; United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 26 Sup. Ct. 282, 50 L. Ed. 499; Love v. Flahive, 205 U. S. 195, 27 Sup. Ct. 486, 51 L. Ed. 768 ; Garfield v. United States, 211 U. S. 264, 29 Sup. Ct. 67, 53 L. Ed. 176. Here, however, the charges of fraud complained of were made in the course of the proceedings in the Dand Office, are there pending and under investigation, and are as yet undetermined. Nothing in our public land laws is more firmly settled than that the sale and disposal of the public lands has been placed by statute under the control of the Dand Department, at the head of which is the Secretary of the Interior, and which includes a bureau headed by the Commissioner of the General Dand Office, to whom, as a special tribunal with quasi judicial powers, Congress has confided the execution of the laws which it has enacted for the sale and disposal of the various kinds of public lands. As'was said in Cosmos Exploration Co. v. Grey Eagle Oil Co. (C. C.) 104 Fed. 20, no court can lawfully anticipate what the decision of that department may be in respect to zny contest arising before it, nor direct in advance what its decision should be, even in matters of law, much less in respect to matters of fact. After, however, the proceedings in the Dand Department have come to an end by the issuing of the government title, that the courts are open for the control of such title, either by the government, in the event that its title has been procured either by fraud or in any other illegal way, or at the suit of any private party equitably entitled thereto, is established by almost innumerable decisions, some of which are cited above.
[2]
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ROSS, Circuit Judge
(after stating the facts as above). [1] The court below held that it had jurisdiction, during the pendency of the applications for patents in the Land Department, to determine whether those proceedings were fraudulent and unlawful, and, if so, to annul by its judgment any and every interest in the property and in its contents claimed by the applicants, saying in its opinion:
“It is insisted, however, that as the applications for patents are now pending and undetermined in the Land Department the court will not assume jurisdiction, even if such applications are fraudulent and unlawful, until they are finally disposed of by the department. The Land Department is vested, conformably to the acts of Congress, with the exclusive jurisdiction to do[553]*553termine the rights of claimants to public lands, and until It has exhausted its jurisdiction by the issuance of a patent a court will not assume to determine which of two rival claimants is entitled to the property. Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485; Marquez v. Frisbie, 101 U. S. 473, 25 L, Ed. 800. But ihe government is not an adverse party to a proceeding to uequire title to its property, nor is the Land Department a tribunal to which it must submit its rights, or litigate with one who has taken, possession of its property or has attempted to acquire title thereto. The notice required by statute of an application for patent to a mining claim is designed and intended to cut off the rights oí private claimants, and not the government oí the United States. It, is given in order that all persons having adverse claims may be heal’d in opposition to the issuance of the patent. Tint (section 2325, R. S. [Cbmp. St. 3916, § 4022]), ‘if no adverso claim shall have bocal filed it shall be presumed that no adverse claim exists, and thereafter no objection from third persons to the issuance of patent shall be heard, except it be determined that ihe applicant has failed to comply with the terms of this chapter.’ If, however, an adverse claim is filed during the period of publication, the adverse claimant, is required by section 2328 (Ooinp. St. 1916, § 4623) to commence within 30 days thereafter proceedings in a court of competent jurisdiction to determine the same, thus clearly showing that the purpose of the statute is to make the proceeding binding on private partios and not the government.
“There is no reason to be found in the relation of the government to such a proceeding which will deprive it of the same right to relief, if the proceedings, are fraudulent or unlawful, as an individual would have in regard to his own contract procured under similar circumstances. Indeed, there are reasons why it should not be denied the right to invoke the aid of a court by the mere receipt and acceptance of an application for a patent and the purchase price by an officer of the local land office; for, as said by Mr. Justice Miller in United States v. Minor, 114 U. S. 233, 5 Sup. Ct. 836, 29 L. Ed. 110: ‘In nine cases out of ten, perhaps in a much larger percentage, the proceedings are wholly ex parte. In the absence of any contesting claimant for a right to purchase or secure the land, the party applying has it all Ids own way. He makes his own statement, sworn to before those officers, and he produces affidavits. If these affidavits meet the requirements of the law, the claimant succeeds, and what is required is so well known that it is reduced to a formula. It is not possible for the officers of the government, except in. a few rare instances, to know anything of the truth or falsehood of these statements. In the cases where there is no contesting claimant, there is no adversary proceeding whatever. The United States is passive; it opposes no resistance to the establishment of the claim, and makes no issue on the 'Statement of the claimant. When, therefore, he succeeds by misrepresentation, by fraudulent practices, aided by perjury, there would seem to be more reason why the United States, as the owner of land of which it has been defrauded by these moans, should have remedy against that fraud — all ihe remedy which the courts can give — than in the case of a private owner of a few acres of land on whom a like fraud has been practiced.’ I am. of the opinion, therefore, that the court has jurisdiction to try the questions involved iu these cases.”
We are unable to sustain that position of the learned judge, and are of the opinion that the case cited in support of it — United States v. Minor, 114 U S. 233, 5 Sup. Ct. 836, 29 L. Ed. 110 — in no respect does so. That was a suit brought by the government to annul a patent it had issued for land, on the ground of fraud practiced in the, procurement of its issue — a wholly different question, and one upon which the authorities are practically all one way. Among the very numerous cases upon the subject, see Johnson v. Towsley, 13 Wall. 72, 83, 20 L. Ed. 485; Steel v. St. Louis Smelting Co., 106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226; Marquez v. Frisbie, 101 U. S. 473, 25 [554]*554L. Ed. 800; United States v. Schurz, 102 U. S. 378, 26 L. Ed. 167; Cosmos Exploration Co. v. Grey Eagle Co., 190 U. S. 301, 315, 23 Sup. Ct. 692, 24 Sup. Ct. 860, 47 L. Ed. 1064; United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 26 Sup. Ct. 282, 50 L. Ed. 499; Love v. Flahive, 205 U. S. 195, 27 Sup. Ct. 486, 51 L. Ed. 768 ; Garfield v. United States, 211 U. S. 264, 29 Sup. Ct. 67, 53 L. Ed. 176. Here, however, the charges of fraud complained of were made in the course of the proceedings in the Dand Office, are there pending and under investigation, and are as yet undetermined. Nothing in our public land laws is more firmly settled than that the sale and disposal of the public lands has been placed by statute under the control of the Dand Department, at the head of which is the Secretary of the Interior, and which includes a bureau headed by the Commissioner of the General Dand Office, to whom, as a special tribunal with quasi judicial powers, Congress has confided the execution of the laws which it has enacted for the sale and disposal of the various kinds of public lands. As'was said in Cosmos Exploration Co. v. Grey Eagle Oil Co. (C. C.) 104 Fed. 20, no court can lawfully anticipate what the decision of that department may be in respect to zny contest arising before it, nor direct in advance what its decision should be, even in matters of law, much less in respect to matters of fact. After, however, the proceedings in the Dand Department have come to an end by the issuing of the government title, that the courts are open for the control of such title, either by the government, in the event that its title has been procured either by fraud or in any other illegal way, or at the suit of any private party equitably entitled thereto, is established by almost innumerable decisions, some of which are cited above.
[2] The court below further said in its opinion, to which reference has been made, that if it was wrong ,in its view as to its power to determine the rights of the applicants for the patents pending the proceedings therefor in the Dand Department, it was nevertheless of opinion that the government was clearly entitled, upon the allegations of the bills and the showing made, to the protection by the court of the property involved from waste and destruction pending the final determination of its rights in the Dand Department. Based upon a sufficient bill, we quite agree that a court of equity has such power, and that it is its duty to exercise that power. This court so held in El Dora Oil Co. v. United States, 229 Fed. 946, 144 C. C. A. 228; but in the instant cases the bills are not based upon any such power of the court, and there is not only no allegation, but not even a reference in either of the bills, regarding any proceeding in the land office respecting the lands in question. On the contrary, the bills, as will have been seen from the statement of the case, make the very astonishing allegation that:
“Except as in this bill stated, the plaintiff has no other knowledge or information concerning the nature of any other claims asserted by the defendants .herein, or any of them, and therefore leaves said defendants to set forth théir respective claims and interests.”
In considering a similar question in the case of Cosmos Exploration Co. v. Grey Eagle Oil Co., supra, 190 U. S. 315, 23 Sup. Ct. 692, 24 Sup. Ct. 860, 47 L. Ed. 1064, the Supreme Court said:
[555]*555“The bill is not based upon any alleged power of the court to prevent the taking out of mineral from the land, pending the decision of the Land Department upon the rights of the complainant, and the court has not been asked by any averments in the bill, or in the prayer for relief, to consider that question. For the reasons stated, we think the bill does not state suiiicient facts upon which to base the relie,(' asked for, and that the defendants’ demurrer to the same was properly sustained.”
In subsequently modifying, on petition, its judgment of affirmance in that case, the court directed that the decree dismissing the bill be modified, “without prejudice to such future proceedings as complainant may be advised,” and that, as so modified, it should stand affirmed. While, for the reasons already stated, we are of the opinion that the court below was and is without power to determine the rights of the appellants in or to the lands in question, or their contents, pending the determination thereof by the Land Department, or in any way to forestall the latter’s decision thereof, and that the allegations ol the bills— which are, in effect, mere suits to quiet the complainant’s title to the lands, and to enjoin the defendants thereto from committing trespass and waste thereon, and for the appointment of a receiver of the property pending the litigation — are insufficient, as they stand, to sustain the appointment of a receiver in view of the facts set up in the answers and shown in the proofs, yet. in view of those averments, and of those facts, we have no doubt of the jurisdiction of the court to protect the property in question from waste and its contents from appropriation by the appellants, pending the determination of their alleged rights thereto by the appropriate tribunal — the latter obviously having no power to afford such protection — and that, upon so amending the hills in the court below as to conform to the proofs made, the possession of the property by the court below through its receivers, pending the proceedings in the Land Department, should be continued.
The cases are therefore remanded, with directions to the court below to permit the bill in each case to be so amended within a reasonable time, to be fixed by the court, as to conform to the proofs, the order appealed from in each case to stand affirmed upon the filing of such amendment; and in the event, of the failure of the complainant to so amend the bills, or either of them, such order as to which such failure shall occur to stand reversed, with directions to dismiss such bill — neither party to recover costs of these appeals.