CARLAND, Circuit Judge.
These are actions commenced by the United States, hereafter called plaintiffs, against the Porter Fuel Company and the Continental Trust Company, hereafter called defendants, for the purpose of vacating and setting aside for fraud certain patents issued for lands located in the state of Colorado. By stipulation the actions were consolidated for trial, and they have been argued and submitted here on one record. The trial court dismissed both actions for want of equity.
The Porter Fuel Company holds the legal title to the lands in controversy, having purchased the same from the original entry people. The Continental Trust Company is the trustee under a deed of trust given by the Fuel Company to secure the payment of its bonds «.nd covering said lands. The defendants denied the allegations of fraud, and also pleaded that they were bona fide purchasers of the land for value without notice of the alleged fraud. The trial court did not reach the question of bona fide purchaser, as it decided there was not sufficient evidence to sustain the charge of fraud. The trial court made no special findings of fact, and no general finding of fact, except as such a finding must be inferred from the decree dismissing plaintiffs’ complaint. The court, however, delivered an oral opinion at the close of the evidence stating generally the reason for its judgment. There are 19 assignments of error in one case and 8 in the other, but all taken together only amount to an assignment that the trial court erred in dismissing the complaint of the plaintiffs.
[1] When counsel for plaintiffs come to demonstrate why the court erred in dismissing the complaint they present their argument under two headings as follows: (1) The District Court erred in its ruling in respect to the burden of proof. (2) The District Court erred in holding that the government was required to show that the land in suit contained a workable vein of coal. These headings are practically new assignments of error, and are based upon what the trial court said in delivering its oral opinion. The opinion of the court was not the sub[771]*771ject of exception or assignment of error. The reasons given in the opinion for the judgment of the court might be 'wrong, and still its judgment right. It is what the court did, and not what it said, which is subject to exception and review. We, therefore, in the present case, are concerned only with the question as to whether the trial court erred in dismissing plaintiffs’ bill of complaint, and not with its reasons for so doing, except as those reasons may throw light upon the question to be decided.
The question presented for decision is one of fact, and in considering the same it will lie helpful to ascertain just what the issues were before the trial court. The record shows that fourteen of the patents in suit were issued under the act of Congress approved June 3, 1878 (20 Slat. 89), as amended by the act of August 4, 1892 (27 Stat. 348), commonly called the “Timber and Stone Act.” The other three patents were issued under the act of June 4, 1897 (30 Stat. 36), as amended by the act of June 6, 1900 (31 Stat. 614), which relate to forest lieu selections.
[2] The fraud charged in the complaint with reference to the patents issued under the Timber and Stone Act is that the entry people were mere “dummies” representing the Porter Fuel Company, for whose benefit they made tlie entries pursuant to prior existing agreements prohibited by law, to which they subsequently conveyed the lands, and by which all of the costs involved, including the government price, were paid, and that the affidavits of the respective entry people to the contrary were false; that the lands covered by each of said entries were at the respective dates thereof known coal lands, enterable only under the Coal Land Act, and not under the Timber and Stone Act, and so known to each of the entry people; and that the affidavits of each of the entry people to the contrary were false. The fraud charged with reference to the patents issued for forest lieu selections is that the lands covered by said patents were at the several dates of the respective selections known as coal lands enterable only under the Coal Land Act, and not enterable as forest lieu selections, and that they were at the time known to be such by the respective selectors and entry people, whose affidavits to the contrary were alleged to be false.
Section 1 of the act of June 3, 1878 (20 Stat. 89 [Comp. St. 1916, § 4671]), contains this proviso:
“That nothing heroin contained shall defeat or impair any bona fide claim under any law of the United States, or authorize the sale of any mining claim, or the improvements of any bona fide settler, or lands containing gold, silver, cinnabar, copper, or coal.”
Section 2 of the same act (section 4672) provides that any person desiring to avail himself of the provisions of the act. shall “file with the register of the proper district a written statement in duplicate * * * designating by legal subdivisions the particular tract of land he desires to purchase,” setting forth, among other facts, that the land does not, as the applicant “verily believes,” contain “any valuable deposit of * i! * or coal.” Section 3 (section 4673) provides for the final proof upon which the entry is allowed. This section provides that the appli[772]*772cant shall present satisfactory evidence to the land office, that the land “apparently contains no valuable deposits of * * * or coal.”
The act approved June 6, 1900 (31 Stat. 614), relating to forest lieu selections, provides that the lands to be selected under said act “shall be confined to vacant surveyed nonmineral public lands which are subject to homestead entry.” The homestead law itself contains the following provision (R. S. § 2302 [Comp. St. 1916, § 4591]): “Nor shall any mineral lands be liable to entry and settlement under its provisions.” In Diamond Coal & Coke Co. v. United States, 233 U. S. 236, 34 Sup. Ct. 507, 58 L. Ed. 936, the Supreme Court, in speaking of the annulment of homestead patents as wrongly covering mineral land, said:
“To justify the annulment of a homestead patent as wrongfully covering mineral land, it must appear that at the time of the proceedings which resulted in the patent ‘the land was known to be valuable for mineralthat is to say, it must appear that the known conditions at the time of those proceedings were plainly such as to engender the belief that the land contained mineral deposits of such quality and in such quantity as would render their extraction profitable and justify expenditures to that end. If at that time the land was not thus known to be valuable for mineral, subsequent discoveries will not affect the patent. The inquiry must be directed to the situation at that time,, as were the applicant’s proofs and the finding of the land officers. If the proofs were not false then, they cannot be condemned, nor the good faith of the applicant impugned, by reason of any subsequent change in the conditions. We say ‘land known at the time to be valuable for its minerals,’ as there are vast tracts of public land in which minerals of different kinds are found, but not in such quantity as to justify expenditures in the effort to extract them. It is not to such lands that the term ‘mineral’ in the sense of the statute is applicable.
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CARLAND, Circuit Judge.
These are actions commenced by the United States, hereafter called plaintiffs, against the Porter Fuel Company and the Continental Trust Company, hereafter called defendants, for the purpose of vacating and setting aside for fraud certain patents issued for lands located in the state of Colorado. By stipulation the actions were consolidated for trial, and they have been argued and submitted here on one record. The trial court dismissed both actions for want of equity.
The Porter Fuel Company holds the legal title to the lands in controversy, having purchased the same from the original entry people. The Continental Trust Company is the trustee under a deed of trust given by the Fuel Company to secure the payment of its bonds «.nd covering said lands. The defendants denied the allegations of fraud, and also pleaded that they were bona fide purchasers of the land for value without notice of the alleged fraud. The trial court did not reach the question of bona fide purchaser, as it decided there was not sufficient evidence to sustain the charge of fraud. The trial court made no special findings of fact, and no general finding of fact, except as such a finding must be inferred from the decree dismissing plaintiffs’ complaint. The court, however, delivered an oral opinion at the close of the evidence stating generally the reason for its judgment. There are 19 assignments of error in one case and 8 in the other, but all taken together only amount to an assignment that the trial court erred in dismissing the complaint of the plaintiffs.
[1] When counsel for plaintiffs come to demonstrate why the court erred in dismissing the complaint they present their argument under two headings as follows: (1) The District Court erred in its ruling in respect to the burden of proof. (2) The District Court erred in holding that the government was required to show that the land in suit contained a workable vein of coal. These headings are practically new assignments of error, and are based upon what the trial court said in delivering its oral opinion. The opinion of the court was not the sub[771]*771ject of exception or assignment of error. The reasons given in the opinion for the judgment of the court might be 'wrong, and still its judgment right. It is what the court did, and not what it said, which is subject to exception and review. We, therefore, in the present case, are concerned only with the question as to whether the trial court erred in dismissing plaintiffs’ bill of complaint, and not with its reasons for so doing, except as those reasons may throw light upon the question to be decided.
The question presented for decision is one of fact, and in considering the same it will lie helpful to ascertain just what the issues were before the trial court. The record shows that fourteen of the patents in suit were issued under the act of Congress approved June 3, 1878 (20 Slat. 89), as amended by the act of August 4, 1892 (27 Stat. 348), commonly called the “Timber and Stone Act.” The other three patents were issued under the act of June 4, 1897 (30 Stat. 36), as amended by the act of June 6, 1900 (31 Stat. 614), which relate to forest lieu selections.
[2] The fraud charged in the complaint with reference to the patents issued under the Timber and Stone Act is that the entry people were mere “dummies” representing the Porter Fuel Company, for whose benefit they made tlie entries pursuant to prior existing agreements prohibited by law, to which they subsequently conveyed the lands, and by which all of the costs involved, including the government price, were paid, and that the affidavits of the respective entry people to the contrary were false; that the lands covered by each of said entries were at the respective dates thereof known coal lands, enterable only under the Coal Land Act, and not under the Timber and Stone Act, and so known to each of the entry people; and that the affidavits of each of the entry people to the contrary were false. The fraud charged with reference to the patents issued for forest lieu selections is that the lands covered by said patents were at the several dates of the respective selections known as coal lands enterable only under the Coal Land Act, and not enterable as forest lieu selections, and that they were at the time known to be such by the respective selectors and entry people, whose affidavits to the contrary were alleged to be false.
Section 1 of the act of June 3, 1878 (20 Stat. 89 [Comp. St. 1916, § 4671]), contains this proviso:
“That nothing heroin contained shall defeat or impair any bona fide claim under any law of the United States, or authorize the sale of any mining claim, or the improvements of any bona fide settler, or lands containing gold, silver, cinnabar, copper, or coal.”
Section 2 of the same act (section 4672) provides that any person desiring to avail himself of the provisions of the act. shall “file with the register of the proper district a written statement in duplicate * * * designating by legal subdivisions the particular tract of land he desires to purchase,” setting forth, among other facts, that the land does not, as the applicant “verily believes,” contain “any valuable deposit of * i! * or coal.” Section 3 (section 4673) provides for the final proof upon which the entry is allowed. This section provides that the appli[772]*772cant shall present satisfactory evidence to the land office, that the land “apparently contains no valuable deposits of * * * or coal.”
The act approved June 6, 1900 (31 Stat. 614), relating to forest lieu selections, provides that the lands to be selected under said act “shall be confined to vacant surveyed nonmineral public lands which are subject to homestead entry.” The homestead law itself contains the following provision (R. S. § 2302 [Comp. St. 1916, § 4591]): “Nor shall any mineral lands be liable to entry and settlement under its provisions.” In Diamond Coal & Coke Co. v. United States, 233 U. S. 236, 34 Sup. Ct. 507, 58 L. Ed. 936, the Supreme Court, in speaking of the annulment of homestead patents as wrongly covering mineral land, said:
“To justify the annulment of a homestead patent as wrongfully covering mineral land, it must appear that at the time of the proceedings which resulted in the patent ‘the land was known to be valuable for mineralthat is to say, it must appear that the known conditions at the time of those proceedings were plainly such as to engender the belief that the land contained mineral deposits of such quality and in such quantity as would render their extraction profitable and justify expenditures to that end. If at that time the land was not thus known to be valuable for mineral, subsequent discoveries will not affect the patent. The inquiry must be directed to the situation at that time,, as were the applicant’s proofs and the finding of the land officers. If the proofs were not false then, they cannot be condemned, nor the good faith of the applicant impugned, by reason of any subsequent change in the conditions. We say ‘land known at the time to be valuable for its minerals,’ as there are vast tracts of public land in which minerals of different kinds are found, but not in such quantity as to justify expenditures in the effort to extract them. It is not to such lands that the term ‘mineral’ in the sense of the statute is applicable. * * * We also say lands known at the time of their sale to be thus valuable, in order to avoid any possible conclusion against the validity of titles which may be issued for other kinds of land, in which, years afterwards,' rich deposits of mineral may be discovered. It is quite possible that lands settled upon as suitable only for agricultural purposes, entered by the settler and patented by the government under the pre-emption laws, may be found, yeays after the patent has been issued, to contain valuable minerals. Indeed, this has often happened. We therefore use the term known to be valuable at the time of sale, to prevent any doubt being cast upon titles to lands, afterwards found to be different in their mineral character from what was supposed when the entry of them was made and the patent issued. Deffeback v. Hawke, 115 U. S. 392, 404 [6 Sup. Ct. 95, 29 L. Ed. 423]; Colorado Coal & Iron Co. v. United States, 123 U. S. 307, 328 [8 Sup. Ct. 131, 31 L. Ed. 182]; United States v. Iron Silver Mining Co., 128 U. S. 673, 683 [9 Sup. Ct. 195, 32 L. Ed. 571]; Davis v. Weibbold, 139 U. S. 507, 519 [11 Sup. Ct. 628, 35 L. Ed. 238]; Dower v. Richards, 151 U. S. 658, 663 [14 Sup. Ct. 452, 38 L. Ed. 305]; Shaw v. Kellogg, 170 U. S. 312, 332 [18 Sup. Ct. 632, 42 L. Ed. 1050]; United States v. Plowman, 216 U. S. 372, 374 [30 Sup. Ct. 299, 54 L. Ed. 523].”
[3] The question of fact presented by the record is, therefore, on this branch of the case, whether the entry people or any of them at the time the proceedings were pending, which resulted in the final entry of the land, knew or had good reason to' know that the lands in controversy were apparently valuable as coal -lands. The theory of the plaintiffs seems to be, not that at the time of the respective entries there existed upon the lands in question, or any of them, a valuable deposit of coal which was disclosed to the eye and therefore apparent, but that as a matter of geological theory the whole region was underlaid with [773]*773a geological stratum technically designated as the “Mesa Verde formation,” which or a portion thereof passed under these entries, and therefore each of the entry people committed perjury in the land office and obtained a conveyance oC these lands by swearing that their respective entries apparently contained no valuable deposit of coal.
The trial court heard all the evidence in open court, and the case comes here attended by the presumption that the decree below is right, unless it shall appear that there has been obvious error in the application of the law or some serious mistake in the consideration of the evidence. Thallman v. Thomas (C. C. A., 8th Cir.) 111 Fed. 277, 283, 49 C. C. A. 317; Mastin v. Noble (C. C. A., 8th Cir.) 157 Fed. 506, 508, 85 C. C. A. 98; De Laval Separator Co. v. Iowa Dairy Separator Co. (C. C. A., 8th Cir.) 194 Fed. 423, 425, 114 C. C. A. 385; United States v. Marshall (C. C. A., 8th Cir.) 210 Fed. 595, 597, 127 C. C. A. 231; Roberts v. Roberts (C. C. A., 8th Cir.) 223 Fed. 775, 138 C. C. A. 102.
[4] The only complaint made by counsel for the plaintiffs in their arguments as to any error of law or fact committed, by the trial court is, as has been stated, first, that the court in its oral opinion erred in stating the law as to the burden of proof; second, that the court erred in stating in its oral opinion that the government was required to show that the lands in suit contained a workable vein of coal. The trial court was not charging a jury, and whether or not it erred in dismissing plaintiffs’ complaint can only be determined by an examination of the evidence in the record and not by an examination of the court’s oral opinion.
We have spent much time in carefully considering the evidence, which is necessarily voluminous, and have arrived at the conclusion that, even if the trial court in its oral opinion placed too great a burden of proof upon the United States in the respects mentioned, there is notiiing to show that such error was translated into the decree which was rendered. We understand the true rule regarding the burden of proof in cases brought to set aside land patents to be as follows:
"The respect due to a patent, the presumption that all the preceding steps required by law were duly observed, and the obvious necessity for stability in titles resting upon those official instruments, require that in suits to annul them the government shah boar the burden of proof, and shall sustain it by that class of evidence which commands respect, and that amount of it which produces conviction. Maxwell Land Grant Case, 121 U. S. 325, 379 -381, 30 L. Ed. 949, 958, 959, 7 Sup. Ct. 1015; United States v. Iron Silver Min. Co., 128 U. S. 673, 676, 32 L. Ed. 571, 572, 9 Sup. Ct. 195; United States v. Stinson, 197 U. S. 200, 201, 205. 49 L. Ed. 724, 725, 25 Sup. Ct. 426; United States v. Clark, 200 U. S. 601, 608, 50 L. Ed. 613, 616, 26 Sup. Ct. 340.” Diamond Coal & Coke Co. v. United States, 233 U. S. 236, 31 Sup. Ct. 507, 58 L. Ed. 936; United States v. D. C. Beaman & Colorado Realty Holding Co., 242 Fed. 876, -C. C. A. -— (8th Cir.).
The investigation that we have made of the evidence contained in the record has satisfied us that no such conspiracy between the Porter Fuel Company and the several entry people was entered into as alleged in the complaint.
[5] The only other question in the case is as to whether the lands in question or lands immediately adjacent to the same contained such [774]*774evidence of a coal deposit as to make it apparent to the entry people, at the time the several entries were made, that the lands in question were valuable for coal to such an extent as to be denominated within the meaning oí the law as coal lands. The evidence does not show that the land itself gave evidence of containing valuable deposits of coal. The record shows, however, that the sedimentary deposits in the region where the lands in controversy are located are cretaceous rocks; that they embrace tire Dakota sandstones, the Mancos shales, the Mesa Verde formation, the Lewis shales, and the Laramie sandstones. The Mesa Verde formation is from 700 to 1,000 feet in thickness. This is the formation in which coal is found in the region where the lands are located, and it is claimed that this formation extends under said lands; but the evidence also' shows that this formation does not always contain coal. It must be borne in mind in considering the evidence that the question is not whether valuable deposits of coal are now known to underlie these lands, but whether at the time the lands were entered the entry people knew, or ought to have known by such evidence as appeared upon the surface of the country where the lands lie, that the lands apparently contained valuable coal deposits. The entries were all made between March 23, 1901, and July 24, 1906, both inclusive. One of the suits was commenced in 1908; the other in 1912. The cases were tried in 1915.
It would be impossible in an opinion to review all the evidence in the record, and, if all the evidence were not reviewed, it would serve no useful purpose to refer to a portion of the same. We have carefully considered the evidence, and our conclusion is that the evidence is not convincing that, at the time the several entry people made their entries, they knew or had good reason to know that the lands in question apparently contained valuable coal deposits, and that with such knowledge they deliberately and intentionally swore to the contrary. When the question of fraud is eliminated from the controversy, then the finding of the land officers of the government that the lands were not coal lands is conclusive upon the question.
It results that the decree below must be affirmed; and it is so ordered.
The cross-appeals, Nos. 4720 and 4721, are dismissed.