Silver Bow M. & M. Co. v. Clark

5 Mont. 378

• Court: Montana Supreme Court
• Decided: January 15, 1885
• Status: Published

Opinion

Wade, O. J.

This is an action in the nature of ejectment, in wiaich the respondent seeks to recover the possession of a certain mining claim location known as the Pawnbroker lode claim, situate in Summit Valley mining district, Silver Bow county, claimed by appellants as a part of the Butte town site. There was but little controversy at the trial as to the facts, which, in substance, are as follows: That the Pawnbroker mining claim was located and claimed on the 16th day of November, 1875, on what was then the public and unappropriated mineral lands of the United States; that at the time of such location and claim the grantors of plaintiff had discovered, within the limits of said claim, a vein or lode of quartz in place, containing silver and other valuable deposits, with at least one well-defined wall; that at the time of such location the same was distinctly marked on the ground, so that its boundaries could be readily traced, and a notice of the claim posted on the ground, and that within twenty days after said discovery and location a declaratory statement, in due form of law, was filed and recorded in the propeb county, and a duplicate thereof posted at discovery shaft on said claim at the time of said location; that said location and claim were made under the act of congress of May 10, 1872, and the laws of the territory; that there-was not, at the time of said location and claim, or since, any local rules, laws, customs or regulations of miners in force in Summit Valley mining district; and that the location and claim of the Pawnbroker claim was, in all respects, regular and according to the laws of the United States and the territory of Montana, and everything necessary was done to make the same a valid mining location and claim at that time; that the locators and their grantees, as to work on said claim, and in all other respects, complied with the law so as to preserve whatever title to said claim was acquired by said location; that in the month of May, 1878, an application, in due form of law, for a patent was made for said Pawnbroker mining claim under and by virtue of the location thereof made November 16, 1875; that notice of said application was given as provided by law; that no protest or adverse claim was made thereto; that upon.said application, a patent, dated January 15, 1880, was issued for said Pawnbroker mining claim, which is the patent mentioned in the answer and replication, and under which respondent claims; that said patent contained a clause ‘c excepting and excluding from said patent all town site property rights upon the surface; and all houses, buildings, lots, blocks, streets, alleys or other municipal improvements on the surface of said Pawnbroker mining claim; ” that the proceedings upon the application for the' patent for the Butte town site mentioned in the' answer and replication were in due form of law, and that no protest against, or adverse claim to, any part of the Pawnbroker claim which was embraced in said town site patent was made against, or to, said application by any one claiming title to the Pawnbroker claim; that the defendants have and own all the right and title which was acquired by law or could be legally conveyed to the probate judge under the patent to the probate judge for the Butte town site, dated September 26, 1877, in and to all those portions of the surface ground of the Pawnbroker mining claim which are embraced within the limits of said town site patent; that said patent contains in it a provision as follows, to wit: “No title shall be hereby acquired to any mine of gold, silver, cinnabar or copper, or to any valid mining claim or possession held under existing laws of congress;” that the Pawnbroker claim described in the complaint therein was, at the time of the issuance and date of said town site patent, and before and since, a valid mining claim and possession held under existing laws of congress, to wit, under the act of May 10, 1872, and the laws of Montana territory, by the grantors and predecessors in interest of the plaintiff.

Under this state of facts, was any title or right of possession to the Pawnbroker mining claim, or any part thereof, conveyed or passed by the town site patent, or by any deed made by the probate judge in pursuance thereof? What are the rights of the respective parties to the land and premises in dispute? These rights must be determined by an interpretation of the acts of congress in relation to the acquisition of title to the public mineral lands and to town sites situate on the public lands, which statutes are as follows: R. S. U. S. sec. 2386. “When mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof; but nothing contained in this section shall be so construed as to recognize any color of title in possession for mining purposes as against the United States.” Section 2387 provides for the entry of town sites on the public lands in trust for the use of the occupants thereof. Section 2392. “No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar or copper, or to any valid mining claim or possession held under existing laws.”

Section 2318. “In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.”

Section 2319. “All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to' exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.”

Section 2320 regulates the size of mining claims, and provides, among other things, that no claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited, by any mining regulation, to less than twenty-five feet on each side of the middle of the vein at the surface.

Section 2322 provides that the location of all mining locations hereafter made on any mineral vein, lode or ledge “shall have the exclusive right of possession and enjoyment of all surface ground included within the lines of their locations.”

Section 2324 regulates the manner of locating, recording, marking the boundaries of the claim, and the amount of work necessary to hold possession of the claim.

Section 2325 points out how a patent to a mining claim may be obtained, and section 2326 provides for filing an adverse claim and the proceeding to determine the right of possession to the ground in dispute. These are parts of our system of pre-emption laws providing for the sale and acquisition of title to the public mineral lands and other lands belonging to the United States, and as they concern the same subject-matter they are in pari materia, and must be construed together, and effect must be given to each section and provision of the law, so far as possible. Prior to 1866 it had been the settled policy of the government, in disposing of the public lands, to reserve the mines and mineral lands for the use of the United States. Prior to that date the uniform reservation of mineral lands from survey, from sale, from preemption and from all grants, whether for railroads, public buildings or other purposes, was the fixed and settled policy of the government in relation to such lands. Mining Co. v. Consolidated Mining Co. 102 U. S. 167; United States v. Gratiot, 14 Pet. 526; Morton v. Nebraska, 21 Wall. 660.

Prior to that date it was impossible for an individual to acquire title to the mineral lands. Though the government had in various ways recognized the possessory rights of miners on the public mineral lands, and their rules and regulations in relation thereto, yet it was always careful not to part with its title. The act of 1865, section 2386, above quoted, was a recognition of both the possessory rights of the miners on the public mineral lands, and the authority and validity of the local rules and regulations in relation thereto, while yet the government had no intention of parting with its title to such lands. This statute must be construed with the others bearing upon the same subject; but in arriving at its true meaning, and to give to it its proper effect, account must be taken of the obj'ect sought to be attained by its passage, and the situation, conditions and circumstances surrounding the subject-matter at the time. If this statute was designed, as it seems to have been, to protect the mere possessory rights of miners on the public mineral lands, as those rights were defined by local authority, while the government had no intention of parting with its title, and while the miners were technically trespassers upon the public domain, under other conditions and surroundings, and in the presence of other rights and interests that would arise where the government had provided by law for the absolute sale and disposal of the mineral lands, and had parted with its title in pursuance thereof, the statute might have no application. It did not contemplate a condition of things where the government had granted to the miner the right of possession and the right to purchase the mineral lands he occupied in pursuance of law. But though the government had made no sale and the miner no purchase, and held his mineral vein by mere possession under local authority, still this statute protected such possession as against the title to town lots to be acquired, and subjected the lots to the necessary use of the mineral vein. And in so protecting the possession of the miner, so far as it went, the statute is not in conflict with any later statute on the same subject. And this brings us to the consideration of our system of laws in relation to the sale and purchase of the public mineral lands. Section 2318, above recited, provides that in all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law. On ■ the 26th day of July, 1866, such express direction was given, and congress enacted a complete system for the sale and other regulation of its mineral lands, which system was amended and perfected by the act of May 10, 18Y2, by the terms of which all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, were declared to he free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, under such regulations as may be prescribed by law, and according to the local customs and rules of miners, so far as the same are applicable and not inconsistent with the laws of the United States. By the terms of this section (2319), not only the mineral deposits are declared free and open to exploration and purchase, but the land in which they are found is declared open to occupation and purchase to the extent or amount as defined in the statute, and the land so defined constitutes a mining claim under the law when the same is properly located. The purpose of congress in enacting this statute was to sell its mineral lands. This land is declared open to occupation and purchase.

This means that the absolute title may be acquired therein. This language will not bear the interpretation that the government intended thereby to sell to the purchaser of a mining claim a mining easement therein, or simply the right to occupy and possess the mining claim for the necessary use of the mineral vein. ,The right to occupy and to purchase means the right to acquire the full title. Under the statute of 1865, such a title could not be acquired; and the only right the miner had was possession, and the necessary use of his vein; and this right the statute protected. But this statute becomes inapplicable under a system of laws where the government proposes to sell its mineral lands upon certain terms and conditions, and lets the purchaser into possession in anticipation of an absolute conveyance when the terms and conditions are performed. The amount of land which may be taken and purchased, by the discovery therein of a vein or lode of valuable mineral deposits, may equal fifteen hundred feet in length'along the vein or lode, and may extend three hundred feet on each side of the middle of the vein or lode at the surface, but shall not be less than twenty-five feet on each side of the middle thereof by virtue of any mining rules or regulations. If there are no mining rules on the subject and no statute of the territory in relation thereto, then the act of congress must control as to the width of the mining claim. The width of the claim does not depend upon the existence of local rules on the subject. If it did, in the absence of any rules, there could be no location at all. Having discovered a vein or lode and made a location thereon according to law, the locator then becomes entitled to the exclusive right to the possession and enjoyment of all the surface ground included within the lines of his location. This is the express provision of the statute (section 2322), and is in harmony with section 2319, which declares that the ground in which the mineral deposit may be found shall be open to occupation and purchase. The right to acquire the full title, which attaches to and accompanies- every valid location of a mining claim, ought to be, and is, followed by the right to the exclusive possession and enjoyment of the soil of such claim. This right to the exclusive possession and enjoyment of the surface ground does not mean the right to use it for mining purposes, only. It does not create a mining easement or right in the ground; but, being attended by the right to purchase, it means an absolute sale when the terms and conditions are complied with. This statute is a pre-emption law, and by the location of a mining claim under it, the grounds included within the boundaries of the location are just as much withdrawn from the public domain as the fee is by a valid grant from the United States under the authority of law, or the possession under a valid and subsisting homestead or pre-emption entry. This statute is an offer to sell the public mineral lands by the owner thereof, and the locator, by making a location thereon, accepts the offer, thereby closing the contract of purchase, and the purchaser becomes entitled to a conveyance when he has complied with the terms of the contract. The rights accruing by this offer and acceptance exclude the theory that the locator of a mining claim acquires the right merely to the possession of the surface ground of his claim for mining purposes only, and that the ground is subject to purchase by other persons for other purposes, subject only to the necessary use of the mine. The supreme court of the United States, in the case of Belk v. Meagher, 104 U. S. 279, by Chief Justice Waite, in language that cannot be mistaken, says: “A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold and conveyed, and will pass by descent. Forbes v. Gracy, 94 U. S. 762. There is nothing in the act of congress which makes actual possession any moi'e necessary for the protection of the title acquired to such claim by a valid location, than it is for any other grant from the United States. The language of the act is, that the locators ‘shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their location,’ which is to continue until there shall be a failure to do the requisite amount of work within the prescribed time. Congress has seen fit to make the possession of that part of the public lands, which is valuable for minerals, separable from the fee, and to provide for the existence of an exclusive right to the possession while the paramount title to the land remains in the United States. . . . The right to the possession comes only from a valid location; consequently, if there is no location there can be no possession under it. Location does not necessarily follow" from possession, but possession from location. A location is not made by taking possession alone, but by working on the ground, recording, and doing whatever else is required for that purpose, by the acts of congress and the local laws and regulations. ... On the 19th of December, the date of Belk’s relocation, the right to the possession of this property was just as much withdrawn from the public domain as the fee is by a valid grant from the United States under the authority of law, or the possession by a valid and subsisting homestead or pre-emption entry. As the United States could not, at the time, give Belk the right to take possession of the property for the purpose of making his location, because there was an existing outstanding grant of the exclusive right of possession and enjoyment, it would seem necessarily to follow that any tortious entry he might make must be unavailing for the purpose of a valid location of a claim under the act of congress. A location to be effectual must be good at the time it is made. When perfected, it has the effect Of a grant by the United States of the right of present and exclusive possession.”

If, then, the location of a mining claim has the effect of a grant by the United States to the locator of the right to the present and exclusive possession of the ground located, it follows that there could not be a like grant of the same property to any other person. There would be no room for a further grant, for the government would have nothing further to convey. After such a grant, which also carries with it the right to purchase the absolute title, the land described within the grant ceases to be public land, and the pre-emption laws, and laws providing for the sale and purchase of the public domain, have no application to it, or effect upon it. It is just as much withdrawn from the public domain as the fee is by a valid grant from the United States under authority, or the possession by a valid and subsisting homestead preemption entry. It is already sold and becomes private property, which may be disposed of at the will of the owner. And so land thus sold and disposed of is not affected one way or another by the subsequent acts of congress providing for the entry of town sites upon the public lands. The application and entry for town sites is only authorized on the public lands (section 2381, supra)-, and after the lands have been granted and sold, as in the case of a valid mining location and claim, the entry of a town site does' not affect such claim, though situate within the boundaries of the town site. The reason is that the mining claim and ground has already been granted and sold, and has thereby ceased to be a portion of the public lands, for which only the town site entry could be made; and for a further reason, the town site act expressly provides (section 2392, supra) that no title shall be acquired, under the provisions of said act, to any mine of gold, silver, cinnabar or copper, or to any valid mining claim or possession under existing laws. If no title can be acquired to a mining claim or possession by virtue of the town site act, then the defendants herein, who claim by virtue of a subsequent town site entry and patent, cannot disturb the exclusive possession of the plaintiff, who claims by virtue of a prior valid location and patent of the mining claim in question.

In Steel v. Smelting Co. 106 U. S. 450-459, the supreme court of the United States says: “ The acts of congress relating to town sites recognize the possession of mining claims within their limits and forbid the acquisition of any mine of gold, silver, cinnabar or copper within them, under proceedings by which title to other lands there situate is secured, thus leaving the mineral deposits within town sites open to exploration, and the land in which they are found to occupation and purchase, in the same manner as such deposits are elsewhere explored and possessed, and the lands containing them are acquired. Whenever, therefore, mines are found in lands belonging to the United States, whether within or without town sites, they may be claimed and worked, provided existing rights of others, from prior occupation, are not interfered with. ... To such claims (mining claims), though situated within the limits of what may be termed the site of the settlement or new town, the miner acquires as good a right as though his discovery was in a wilderness, removed from all settlements, and he is equally entitled to a patent for them.”

The “ existing rights of others,” here spoken of, means prior rights by occupation under local rules, before any title has passed from the government. When such rights exist the mining location is subject to them, and the land department ascertains by proof if a patent to the mining claim can issue under the law. But in a case where the mining location is the first occupation and the first purchase of the ground from the government, there are no prior existing rights to be protected, and the locator purchases what may ripen into a full and complete title.

It is further declared in the case above referred to, that; “land embraced within a town site on the public domain, when unoccupied, is not exempt from location and sale for mining purposes.” That is to say, upon the unclaimed lands within the town site, before the title has passed from the probate judge, who, as to such lands, holds the same in trust for the United States, a mining claim may be located thereon for the reason that such lands have not been sold; and no one has before then acquired any interest therein. But no such considerations arise in a case like the one at bar, where the ground in question was located as a mining claim under existing laws, and occupied, held and possessed as such, long before the entry of the town site. The town .site application and entry not being applicable to, or in any manner affecting, a prior mining claim, located according to law, it follows that there was no duty or obligation upon the part of the mining claim owners to file an adverse claim to the entry of the town site. The law did not require any such action •on their part, for they had no adverse claim. Their mining claim was excluded from the operation of the town site act; and they did not pretend to claim or own any interest in the public lands within the town site boundaries. Hence there was nothing upon which they could file an adverse claim. They held their mining claim by virtue of a perfected and valid location and purchase, and so far as the ground included within its boundaries was concerned, they were under no obligations to take any notice of subsequent pre-emption laws, making sale or disposing of other public lands.

We are next to consider the rights of these parties in view of their respective patents, and the effect of the reservations and exceptions they contain. The Pawnbroker mining claim and location was made and perfected on the 16th day of November, 1875, and a patent therefor was issued on the 15th day of January, 1880.

The patent to the probate judge, for the town site, was ‘issued on the 26th day of September, 1877. The town site patent contained the following clause: “No title shall be hereby acquired to any mine of gold, silver," cinnabar or copper, or to any valid mining claim or possession held under existing laws of congress.” The mining claim patent contained a clause: “ Excepting and excluding from said patent all town property, rights upon the surface, and all houses, buildings, lots, blocks, streets, alleys or other municipal improvements on the surface of said Pawnbroker claim.”

It is evident from these reservations and exceptions that the land department never attempted to adjudicate between these parties as to which one of them was entitled to the possession of the surface ground of the mining claim. An attempt is made to exclude the surface ground of mining claims from the operation of each patent. Notwithstanding these patents, the ownership of this surface, whether it belongs to the mining claim or to the town lot, subject to a mining easement therein, remains to be adjudicated.

It is contended, on behalf of appellants, that the patent to the probate judge, of the town site, conveyed to him all the premises included within its boundaries, as well mining claims as other lands, and that the clause declaring that no title should thereby be acquired to any valid mining claim or possession held under existing laws of congress, was neither an exception or reservation, but that it is notice to the patentee that the lands conveyed by the patent are subject to the prior rights of the locators of valid mining claims therein, inserted in the patent for the protection of the government in the event the claimants under the mining locations should oust the claimants under the town site. In support of this view, the following authorities are referred to: Bryan v. Forsyth, 19 How. 334; Meehan v. Forsyth, 24 How. 175; Gregg v. Forsyth, 24 How. 179; Dredge v. Forsyth, 2 Black, 563; 1 Miller, 731; 4 Miller, 52-58.

In the case of Meehan v. Forsyth, there was an act of congress confirming certain claims to lots in the village of Peoria, in the state of Illinois, and the surveyor of the public lands was directed to survey the lots. Before the survey, Ballance made an entry of the quarter section of which the lot in controversy was a part, and a patent was issued to him by which the United States granted to him and to his heirs, subject to the rights of any and all persons claiming under the act of congress aforesaid. It was held that the saving clause was designed to exonerate the United States from any claim of the patentee in the event of his ouster by persons claiming under the act of congress, and cannot be construed as separating any lots or parcels of land from the operation of the grant; and that the patent does not impose upon the patentee any duty to recognize these claims, but only requires him to accept the title of the United States with knowledge that such claims exist, and that they do not intend to deny or to destroy them, nor to defend his title against them.

There had been no survey of the lots and no reservation of them from sale as a part of the public lands at the time. Ballance made his entry for the quarter section and received his patent. Whether the lots would ever be surveyed and designated so that the claimants could assert their title, or whether they would assert title after a survey had been made, was unknown, and so it was held that the patent conveyed a fee-simple title. Says Justice Clifford, in Dredge et al. v. Forsyth, 2 Black, 569, which is a similar case to that of Meehan v. Forsyth: “When the patent under which defendants claim was issued, no survey of any lots granted to the inhabitants or settlers in the village of Peoria had been made. Those persons, therefore, held but an inchoate right, which must first be surveyed and designated before the right granted to them would supersede the title acquired under the defendants’ patent. They might never make any claim, and in that event the other title would prevail. Consequently, this court held, in Bryan et al. v. Forsyth, 19 How. 338, that, subject to that contingency, the patentee, under whom the defendants claim, took a title in fee till 1840, when the title to the village lots was, by survey and designation then made, ripened into a better title.”

And so it was only .the lack of survey, designation and claim by the lot-owners that caused the court to hold the quarter section patent the better title. If the lots had been surveyed and designated, “the right granted to them would supersede the title acquired under the patent.” Suppose these lots had been a mining location previously granted and sold by the government to the locator, valid in every way, and distinctly marked and recorded, then, according to this authority, the mining claim title would supersede that of the town site patent. But suppose again that congress had declared that title to these lots should never be acquired by virtue of airy quarter section entry for patent, and had provided by law the manner in which the lot-owners might procure a conveyance of the government title, could it be then held that the patent conveyed a fee-simple title to the lots when they were expressly reserved from the granted premises? We do not think a patent good for anything that attempts to convey land that the law declares shall not be conveyed by patent.

In these Peoria town lot cases there was no question, and could have been none, as to the right or authority to issue the patent for the quarter section. No one could have objected, or set up an adverse claim. The lots had not been surveyed. There was nothing upon which the lot claimants could base a claim. The patent was issued in pursuance of law and not in violation of the law. The land department had the right to issue it, and the patentee to receive it. He took it subject to the right of the lot-owners or claimants, if they ever should make and sustain a claim. But this case is to be distinguished from one where the patent issues without authority of law, and certain grounds are included within its boundaries, in express violation of the statute. The land department is only authorized to issue patents to the probate judge for town site purposes on the public lands not previously granted and sold or reserved from sale. More than this: the act authorizing the conveyance of town sites to the probate judge forbids the land department to include in the town site patent any mine, mining claim or possession. If the land department had no authority to issue the patent, or if it was issued for land previously granted or reserved from sale, the patent is so far -void. In the case of Morton v. Nebraska, supra, the supreme court of the United States says: “It has been repeatedly decided by this court that patents for lands which have been previously granted, reserved from sale, or appropriated, are void. The executive officers had no authority to issue a patent for the lands in controversy, because they were not subject to entry, having been previously reserved, and this want of power may be proved by a defendant in an action at law.”

In Steel v. Smelting Co., supra, the same court says: “If the lands were never the property of the United States, or if no legislation authorized their sale, or if they had been previously disposed of, or reserved from sale, the patent would be inoperative to pass the title, and objection to it could be taken on these grounds at any time and in any form of - action. In that respect, the patent would be like the deed of an individual, which would be inoperative if he never owned the property, or had previously conveyed it, or had dedicated it to uses which precluded its sale.” Smelting Co. v. Kemp, 104 U. S. 644; Patterson v. Winn, 11 Wheat. 380; United States v. Tickner, 12 Fed. Rep. 415; New Orleans v. United States, 10 Pet. 662; Reichart v. Phelps, 6 Wall. 160; Best v. Polk, 18 Wall. 112; Stoddard v. Chambers, 2 How. 284; Polk's Lessees v. Wendell, 9 Cranch, 99.

Before the patent for the town site had issued, the Pawnbroker mining claim had been granted and sold, and thereby withdrawn and taken from the public lands, and the executive officers therefore had no authority to include in the town site patent the lands so disposed of; and if the town site patent includes such lands and the fee thereof, as appellants contend, it is, so far- and to that extent, void.

It is claimed, however, that town site rights are excepted from the Pawnbroker patent, and, therefore, that such patent does not convey to the grantees therein any of the surface ground of the Pawnbroker mining claim. If this exception was authorized by law, it is valid; but if not authorized, and the executive officers had no authority to make it, it is void and does not affect the grant.

A patent relates back to the right. A patent for a mining claim relates back to the location, and is the consummation of the purchase then made. No unauthorized act of the land officer in issuing the patent can defeat this title. In Stark v. Starrs, 6 Wall. 418, the supreme court of the United States says: “The patent relates back to the inception of the right of the patentee, so far as it may be necessary to cut off intervening claimants.” The patent being but confirmatory of the title by location, the patentee obtains the same right under it that he would have obtained if the patent had issued immediately after the location and compliance with the terms of the statute. In the Eureka Case, 4 Sawyer, 317, the court says: “All these patents are founded upon previous locations taken up and improved according to the customs and rules of miners in the district. Each patent is evidence of a perfected right in the patentee to the claim conveyed, the initiatory step for the acquisition of which was the original location. If the date of such location be stated in the instrument or appear from the record of its entry in the local land office, the patent will take effect by relation as of that date, so far as may be necessary to cut off all intervening claimants, unless the prior right of the patentee, by virtue of his earlier location, has been lost by failure to contest the claim of the intervening claimants as provided in the act of 1872. As in the system established for the alienation of the public lands, the patent is the consummation of a series of acts having for their object the acquisition of the title, the general rule is to give to it an operation by relation at the date of the initiatory step, so far as may be necessary to protect the patentee against subsequent claimants of the same property. As was said by the supreme court in the case of Shipley v. Cowan, 91 U. S. 338, where two parties are contending for the same property, the first in time in the commencement of proceedings for the acquisition of title, when the same are regularly followed up, is deemed to be the first in right.” Smelting Co. v. Kemp, 104 U. S. 647; Ross v. Bolard, 1 Pet. 655; Hydenfeldt v. Daney Co. 93 U. S. 634; Tayler v. Brown, 5 Cranch, 234.

The action of the land department in issuing patents for the public lands is conclusive as to the legal title, when acting within the scope of its authority. In the case of Steel v. Smelting Co., supra, the court says: “The land 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 différent 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 amendment or limitation. Such has been the uniform language of this court in repeated decisions.

In Johnson v. Towsley, the effect of the action of that department was the subject of special consideration; and the court applied the general doctrine “that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others; that the action of the land officer, in issuing a patent for any of the public lands, subject to sale by pre-emption or otherwise, is conclusive of the legal title, must be admitted under the principle above stated; and in all courts, and in all forms of judicial proceedings, where this title must control, either by reason of the limited powers of the court, or the essential character of the proceeding, no inquiry can be permitted into the circumstances under which it was obtained.” 13 Wall. 72; French v. Fyan, 93 U. S. 169; Quimby v. Cowlan, 104 U. S. 104; Vance v. Burbank, 101 U. S. 514; Beard v. Federy, 3 Wall. 478; Moore v. Wilkinson, 13 Cal. 478.

These presumptions as to the conclusiveness of a patent, and the title it conveys, are confined to matters over which the land department has jurisdiction; it must act within the scope of its authority and as authorized by law. If it goes beyond its jurisdiction the patent would be so far void, and this may be "shown in an action at law.

In the case of The Smelting Co. v. Kemp, supra, the court says: “Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them; and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would, in that event, be like that of any other special tribunal, not having jurisdiction of a case which it assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law.” Polk’s Lessees v. Wendell, 9 Cranch, 99; Patterson v. Winn, 11 Wheat. 380; Hoofnagle v. Anderson, 7 Wheat. 212; Boardman v. Lessee of Reed, 6 Pet. 328; Bognell v. Broderick, 13 Pet. 463; Moore v. Robins, 96 U. S. 530.

The principles enunciated in these cases apply with much force to a case where the land office, without authority of law, inserts an exception into the granting part of a patent that the law does not authorize, whereby the title of the patentee is defeated. The Pawnbroker mining claim, at the time of the issuance of the patent therefor, was a valid claim and possession under existing laws of congress, and the patentee was entitled to the exclusive possession and enjoyment of all the surface ground thereof. There was no law depriving him in any manner of the right to such possession. He had purchased the property and paid for it, and was entitled to a conveyance of the full and complete title. As between individuals, he stood in a position to compel such a conveyance. There was no law authorizing the land department to except the surface ground from the conveyance, or in any other manner to abridge the title of the purchaser, and in so doing it exceeded its authority, and its act, to that extent, is void and of no effect upon the property conveyed. An exception that is void leaves the patent to stand as though it contained no such exception. Stark v. Starrs, supra.

In Wolfley et al. v. Lebanon Mining Co. 4 Col. 115, it is held that if the patent is broader than the law, it. is to that extent ineffectual, and on the same principle, if it is narrower than the law, and contains unauthorized exceptions, whereby the grant is unlawfully abridged and contracted, such exceptions would be ineffectual to defeat the full title. And if the exception, when read in the light of existing law, is seen to be ineffectual and void, it may be so declared in an action at law. But whatever may be the terms of the Pawnbroker patent, and whether it conveys the full title of respondents or not, the town site patent, under which appellants claim, by its terms, and by the express provisions of the statute under which it was issued, forbids the acquisition of any title or right to any mining claim by virtue of such patent. And so, if the Pawnbroker patent should fail, and the Pawnbroker mining claim remained a valid location under existing laws of congress, the appellants would acquire no right or interest therein by virtue of the town site patent. If a mining claim patent relates back to the location, as the authorities declare that it does, then there could be no merger in the patent, so as to let in intervening claimants between the location and the patent. It is difficult to see how a greater title could be merged in a lesser one. If by exceptions and reservations the patent becomes the lesser title, still it relates back to the location, and does not destroy it. The location supports the patent, and the title by the patent ought to be as broad as the title by location, and a continued compliance with the law, and always will be, unless cut down and abridged by unlawful exceptions and reservations; and these do not affect the grant of title evidenced by the patent. The patent of a mining claim, when drawn according to law, is evidence of a perfected right in the patentee. It is the consummation of a series of acts, having for their object the acquisition of title, and if it contains exceptions and reservations not authorized by law, these will be disregarded in an action at law, so that the patent may stand and be sustained as the evidence of a perfected title in the patentee.

The judgmerit is affirmed.

All concurred.