MURPHY, C. J., dissenting:

This is an action of ejectment brought by the South End Mining Company, in the district court in and for Lyon county, for a mining claim situated in the Devil's Gate and Chinatown mining district, Lyon county, Nevada, being 400 feet in width and 1,100 feet in length.

The complaint is in the ordinary form in ejectment, coupled with a prayer for an injunction and $500 damages, and alleges that on the — day of March, 1888, the plaintiff was and is now the owner in fee simple of the ground in controversy.

To this complaint the defendants answered, setting up general denials, and pleading affirmative matter.

They deny that on the 29th day of March, 1888, the plaintiff was or now is the owner, in fee simple or otherwise, or was in the possession, or entitled to the possession, of the raining claim or ledge described in the complaint.

They admit that the plaintiff purchased the mining ground described in the complaint from the United States of America on the 29th day of March, 1888, and acquired the legal title on that day, but allege that such title was illegal, fraudulent, and void.

They assign the following acts of plaintiff, constituting such illegality and fraud:

"The defendants, further answering, aver that on the — day of —, 1876, the plaintiff's grantors applied to the register and receiver of the United States land office at Carson City, Nev., for a patent for the Comet mining claim and lode, alleged to have been located on the 27th day of August, 1872; * * * said notice claiming 1,500 feet of the quartz lode, being a relocation of the Dorrence, with all its dips, spurs and variations, together with all dumping grounds and dumping privileges, and the lawful 200 feet on each side of the ledge. That afterwards, and on or about the — day of —, 1878, and until on or about the — day of April, 1888, the said plaintiff abandoned the said application for patent and ceased to prosecute the same, and abandoned said mining claim and location, and ceased to occupy or possess the same, or to prosecute the business of mining thereon, or to keep up the monuments marking the boundaries thereof, or to do or perform any work or labor thereon, and failed and neglected to do or perform the annual labor or make the annual improvements required by the mining laws of the United States, and wholly failed and neglected to comply with the conditions of the mining laws of the United States necessary to preserve the said location, and forfeited the same; and by reason of the premises the said Comet location and mining ground applied for, as hereinbefore stated, was subject to relocation, and during said period of time said Comet ledge was relocated, and was claimed, held and occupied under said relocation, adversely to the plaintiff, for the period of more than five years.

"And defendants aver that during said period, and on, to wit, January 5, 1887, said grantors of the defendants entered and located said Phœnix mining claim, lode and location; the same being then unoccupied public mineral lands of the United States, and subject to location. Defendants, further answering, aver, that on or about the 13th day of April, 1888, the said persons relocating the said Comet lode discovered ore thereon, and commenced extracting the same, and that after such discovery said plaintiff reorganized, and resumed the prosecution of its application for patent, and without the knowledge of defendants or their grantors, and without posting or publishing any other or further notice of application for patent, procured the said register and receiver to sell said Comet mining claim to plaintiff, and to issue a certificate of purchase thereof; and in order to induce the said register and receiver to accept payment and issue said certificate of purchase, and for the purpose of inducing the government of the United States to sell and patent said ruining claim to plaintiff, procured, and caused to be presented to and filed in the office of said register and receiver of the United States land office, false and fraudulent affidavits and testimony showing and tending to show that the annual labor and improvements had been made by plaintiff upon the said Comet mining claim and location between the date of location, to wit, 1872, and the date of such proof and certificate of purchase; said plaintiff well knowing that said affidavits and proofs were false and fraudulent, and well knowing that said plaintiff had abandoned said location, and had failed and neglected to do the annual labor or make the annual improvements upon the said location for or during the years from 1879 to 1887, inclusive, and each of them."

The defendants aver that the Comet location is a relocation of the Dorrence mine, and is shown by cuts and excavations on the ground; that the Phœnix ledge located by the grantors of the defendants is within the surface ground described in the patent to the plaintiff, but deny that it is the ledge located by the plaintiff's grantors, and is not the ledge applied for by the plaintiff, and its top or apex is more than 300 feet from the center of the Comet ledge. And they aver that the Comet ledge, on its horizontal course and on its strike, crosses the east side line of the plaintiff's location and claim, as described in its patent, at a point 650 feet from the northerly end of the Phœnix ledge of the defendants.

The defendants plead the statute of limitation and title by prescription, and aver that, they having expended $6,000 in labor and improvements on the ground, to the knowledge of the plaintiff, the plaintiff is now estopped to assert his title.

The plaintiff demurred to this answer on the ground that the facts therein stated did not constitute a defense to the action, and asked for judgment on the pleadings, on the ground that the answer admitted the ownership of the plaintiff to the ground in controversy by its patent, and that the defendants were not in a position to attack said patent, they not having connected themselves with the government title.

The district court sustained the motion, and judgment was entered in favor of the plaintiff without damages, and this appeal is from the judgment.

There is no dispute as to the sufficiency of the location of the Comet ledge in 1872. There is no controversy as to the proceedings taken to procure the patent, from the time of making the application up to and including the publication of the notice of such application. But the appellants contend that by reason of the fact that the respondent allowed such a length of time to elapse between the expiration of the publication of application for patent and the final proof and payment for the land, coupled with the fact that the plaintiff failed and neglected to do the assessment work or make improvements in each year as required by act of congress, forfeited whatever rights it had to the ground in dispute; and the defendants' grantors having entered upon the ground in 1887, and relocated the same, they are in a position to attack said patent, and have the same set aside, as being absolutely void. It is admitted by the answer that all of the defendants' works, and the top or apex of the Phœnix ledge at the point of discovery, are within the surface boundaries of the Comet patented ground.

In the year 1866, and as amended in 1872, congress, by statute, conferred upon citizens of the United States, and those who had declared their intentions to become such, the right to locate and hold mining claims, so long as they complied with the acts of congress and the local rules and regulations of the miners in the mining district. These statutes gave to the locators the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of the surface lines, extended downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular, in their course downward, as to extend outside the vertical side lines of such surface location. (Rev. Stats. U. S., sec. 2322.)

This possessory right often is of great value, and may be sold, transferred or mortgaged. The locator has the right to explore and extract the minerals therefrom without being required to purchase the government title thereto. He is not compelled to do so. Under his possessory right, he can hold as against everybody except the government of the United States. ( Forbes v. Gracey, 94 U. S. 766.)

The public mineral land is at the disposal of the federal government; and although individuals may locate and acquire a possessory right to enter upon the unoccupied mineral lands, and extract the valuable ores and minerals therefrom, yet all such rights so acquired are subject to the paramount title of the government. Congress has provided that the locator or his grantors may purchase the mineral land, and has prescribed the terms and conditions upon which the government title may be acquired. Congress has also created a branch of the executive department of the government, before which all matters pertaining to the issuance of patents to mining claims are heard and determined. The land department of the government is a special tribunal created for the purpose of hearing and determining the rights of parties to purchase land, and, within the scope of its jurisdiction, its adjudications are final and conclusive. ( Smelting Co. v. Kemp, 104 U. S. 639; Wight v. Dubois, 21 Fed. 693; Ferry v. Street, (Utah), 11 Pac. 576; Jeffords v. Hine, (Ariz.), Id. 352; Johnson v. Towsley, 13 Wall. 80; Talbott v. King, (Mont.), 9 Pac. 434.)

In the case of Steele v. Refining Co., 106 U. S. 450, 1 Sup. Ct. 389, Mr. Justice Field, speaking for the court, said: "We have so often had occasion to speak of the land department, the object of its creation, and the powers it possessed 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 a portion 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 annullment or limitation." ( Quinby v. Conlan, 104 U. S. 426; Moore v. Robbins, 96 U. S. 532; Shepley v. Cowan, 91 U. S. 340; Marquez v. Frisbie, 101 U. S. 476; Beard v. Federy, 3 Wall. 491; French v. Fyan, 93 U. S. 170.)

It is insisted on the part of appellants that they having alleged in their answer that the plaintiff committed a fraud on the defendants, by reason of false affidavits having been submitted to the register and receiver of the United States land office to establish the fact that the assessment work had been done on the claim in each year, as required by the mining laws, when in fact it had not, it is a direct attack, as to the validity of the patent, and constitutes a good defense in equity to the plaintiff's action; and their counsel contends that under the pleadings in this case the court can go behind the patent, and inquire into the regularity of the proceedings, the sufficiency and character of the evidence submitted on said application for a patent, and that the defendants should be permitted to introduce testimony before the court to contradict the statements set forth in the affidavits, the sufficiency of which has already been passed upon by the register and receiver before issuing the final certificate or receipt for money received in payment for the land. Under our system of practice, equitable defenses of this nature, as well as defenses at law, may be interposed in an action of ejectment. The answer, when presenting them, is in its nature a bill in equity, and must contain all its essential allegations. It must disclose a case which, if established, will justify a decree adjudging that the title be transferred to the defendants, or enjoining the further prosecution of the action.

There are cases, and quite a number of them, where courts of law, as well as in equity, have permitted litigants to go behind the patent, and inquire into the proceedings had before the land department. In such cases the party attempting to impeach the patent must show that he has a title to the premises, or such an interest therein, in subordination to the title, wherever it may lie, as will authorize him to call the true title to his aid, or where the United States or a state had issued their patents to lands over or to which they had no control or title at the date of the issuance of the patents, by reason of the fact that the law did not authorize the selling of the lands, or that they had been reserved from sale, or had been previously transferred to others, as where swamp and overflowed lands were donated to the state by the act of congress, a patent issued thereafter by the United States is void. Why? Because the government has been divested of the title thereto. ( Railroad Co. v. McCusker, 67 Cal. 67, 7 Pac. 122; Kile v. Tubbs, 59 Cal. 191; Hermocilla v. Hubbell, 89 Cal. 5, 26 Pac. 611.)

A United States patent for land included within the limits of a Mexican grant is void, the government having no title. ( Carr v. Quigly, 57 Cal. 394; Newhall v. Sanger, 92 U. S. 761.)

Where the State of California issued its patent for land once the bed of a navigable stream, but which had never been acquired as swamp and overflowed land from the United States, the patent was held to be void. ( Edwards v. Rolley, (Cal.) 31 Pac. 267.)

In establishing the facts as set forth in the above or similar cases, the proceedings of the land department upon matters properly before it are not called in question, but its authority to act at all is denied, by reason of the fact that the government or the state had no title to convey. ( Smelting Co. v. Kemp, supra.) There is no such question involved in this case. It is admitted by the answer that the land was open to sale; that the paramount title was in the United States, and that such title was transferred by the government to the plaintiff in the month of March, 1888; and that the plaintiff is now the owner of the legal title to the premises in controversy. It does not appear from the answer that the defendants have attempted, or ever will attempt, to connect themselves with the government title; nor are there any averments in their pleadings that would justify a court in holding that the plaintiff is trustee for them, and that the legal title must be transferred to them by the plaintiff; nor can we, under the pleadings, enjoin the prosecution of the action. The mere occupation of the defendants is worthless, when opposed to the government title.

In the case of Courchaine v. Mining Co., 4 Nev. 374, Lewis, J., speaking for the court, said:

"The public land is absolutely at the disposal of the federal government. Although individuals may settle upon and occupy portions of it, no title is acquired thereby which will be available against the paramount right of the government. As between each other, settlers may acquire rights which the courts will maintain and enforce. Thus, the first possessor is always deemed to have the best right, and by establishing priority of possession he is allowed to recover in ejectment, and in fact he is treated as the absolute owner of the land occupied by him. But all rights so acquired are subject to the paramount title of the government. Occupation and priority of possession are utterly worthless, when opposed to a title or right of possession expressly conferred by the proper federal authorities. As between persons none of whom claim title from the government, nor can show a right of possession recognized by it, priority of possession must prevail. When, however, the government has declared, or by its proper tribunals decided, that a particular person is entitled to the possession, such declaration or decision, in the absence of fraud, is high evidence of his right to such possession; certainly, superior to that which is acquired simply by priority of possession unaccompanied with any recognition from the government." ( Frisbie v. Whitney, 9 Wall. 194; The Yosemite Valley Case, 15 Wall. 86; Shepley v. Cowan, 91 U. S. 331; Oaksmith v. Johnston, 92 U. S. 346.)

Courts have universally held that, after land is once offered for sale by the government, the party who takes the initiatory step in such cases, if followed up to patent, is deemed to have acquired the better right as against others to the premises, for the reason that when the patent issues it relates back to the date of the initiatory act, and cuts off all intervening claims. ( Eureka Con. Min. Co. v. Richmond Min. Co., 4 Sawy. 317; Shepley v. Cowan, 91 U. S. 337; Talbott v. King, (Mont.) 9 Pac. 439; Deffeback v. Hawke, 115 U. S. 405, 6 Sup. Ct. 95.)

The rule which prohibits courts from going behind the patents, and inquiring into the proceedings had before the land department, when the controversy is between the holder of the legal title and a party claiming by occupation only, is derived from the provisions of the statutes of the United States, which prescribes the filing of adverse claims. Where a statute prescribes one way in which a thing shall be done, it precludes every other. The plaintiff having made application for a patent to the Comet mining claim, the defendants, claiming to have relocated a portion of the ground, had but one method open to them to protect their interest, if they had any, and have their rights determined. The statute, after limiting the time within which an adverse claim may be filed, provides: "Thereafter no objections from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter. (Sec. 2325, Rev. Stats. U. S.)

From the date of filing of the application for a patent by the plaintiff to the land in dispute, it ceased to belong to the public domain. No other claim to the same land could be asserted, except in the manner pointed out by the statute. We do not understand defendants to deny but what the plaintiff, and its grantors complied with the mining laws, local rules, regulations, and customs of the miners within the district from the date of location of the Comet ledge and claim until and including the date of the expiration of the publication of the notice of application for its patent; but what they do claim is that after such publication had been completed the plaintiff abandoned the claim, and failed to do the assessment work, until 1888, when it resumed work, and, without giving any further or additional notice of its intentions, applied at the United States land office, made proof of having done the assessment work, by means of false affidavits, paid five dollars an acre for the land, received the receiver's receipt, and upon such proof and receipt the patent was issued. And the defendants claim that after said abandonment, and before said proof and payment, their grantors entered upon and relocated a portion of said surface location of the Comet claim.

The proceedings on application for a patent to land, before the land department, from the initiatory step until the issuance of the patent, are ex parte, unless an adverse claim be filed; and if an adverse claim is filed, in mineral applications, it is referred to the courts, and in all other cases they are heard and determined in the land department. But we know of no law, rule or regulation of the land department that requires of a party applying for a patent to mineral land to give or publish any additional notice after the expiration of the sixty-days publication. After such publication the applicant can make what is termed his "final proof," which consists of the affidavit of the publisher or manager of the paper that the notice has been published therein for sixty days; of the applicant himself, or his agent, that the plat and notice remained posted upon the claim during the period of publication; of two disinterested persons, that the $100 worth of labor or improvements were performed or made on the claim during the year in which the final proof was made. If no adverse claim was filed prior to this proof submitted to the register and receiver, it shall be assumed that the applicant is entitled to a patent upon the payment to the proper officers of five dollars per acre, and that no adverse claim exists.

By act of congress, March 3, 1849 (Rev. Stats., sec. 441) the secretary of the interior was charged with the supervision of public business relating to the following subjects: "Second. The public lands including mines." By section 453, the office of commissioner of the land department was created, and that officer was to perform his duties under the direction of the secretary of the interior, and, as hereinbefore stated, that department being vested with the supervision and sale of the mineral land, the decisions and rulings of the officers of the land department, made within the scope of their authority, on questions of fact, are conclusive everywhere; and when a party relies upon a relocation made subsequent to publication, and prior to final proof and payment, the only course for him to pursue is by presenting his grievance in the shape of a protest, setting forth the fact that the applicant for the patent had not complied with the law, by reason of its failure to do the assessment work or make the improvements, which protest should be filed in the land office, and a hearing demanded, which would be granted, as was said by Acting Commissioner Holcomb in the appeal case of Wheeler v. Sanger, under date of October 21, 1880 (Sickels, Min. Dec., at page 275): "I am also of the opinion that all adverse claims, from whatever source derived, should be presented in the manner prescribed by law, and during the period of publication of notice of application for patent, with a single exception, to wit: Should the abandonment occur subsequent to such publication, and prior to entry and payment, a case would be presented by which the executive department would be compelled to take jurisdiction, because the law, under that state of facts, allows the abandoned ground to be again located by any qualified person in the same manner as if no location of the same had ever been, and makes no provision for the determination elsewhere of any question or controversy arising out of this class of conflicting claims."

This instruction was given to the local land office in 1880, and the same has been followed and approved in the following cases, and by the following officers: Bodie Tunnel Min. Co., v. Bechtel Consol. Min. Co., 1 Dec. Dep. Int. 599 — letter of Secretary Kirkwood to Commissioner McFarland, December 12, 1881, in which he says: "I desire to say that, while I am of the opinion that controversies between adverse mining claimants cannot be heard and determined before this department, I am nevertheless of the opinion that where, under the last clause of sec. 2325, third parties present evidence by affidavits, etc., to show that an applicant has failed to comply with the mining statutes, if the evidence is of such character as to entitle it to credit, and if the allegations are such as, if proven in regular proceedings, would show that the law has not been complied with, that patent under the law ought not to be issued, or that you have no jurisdiction to issue the patent, then it is your duty to order an investigation as between the government and the applicant, as in similar cases of agricultural entries." Secretary Vilas to Commissioner Stockslager, January 25, 1889, in the case of Bright v. Mining Co., 8 Dec. Dep. Int. 122. Secretary Noble to the commissioner of the general land office, November 4, 1889, Tangerman v. Mining Co., 9 Dec. Den. Int. 538. And by the same secretary to the same officer in the case of Sweeney v. Wilson, under date of February 13, 1890, in which the land department canceled an application for a patent on the ground that the applicant had not complied with the law (10 Dec. Dep. Int. 157). First Assistant Secretary Chandler to the commissioner of the general land office, under date of May 2, 1893, in the case of Mining Co. v. Gage, in which the secretary orders a hearing to determine as to whether the ground in controversy was subject to relocation pending adverse proceedings and application for patent (10 Dec. Dep. Int. 531). Nichols v. Becker, 11 Dec. Dep. Int. 8. Copp, Min. Lands, 315. Bellwither Lode, Id. 133.

In the case of St. Lawrence Min. Co. v. Albion Min. Co., 10 Copp., Landowner, 51, Commissioner McFarland, writing to the register and receiver of the land office at Eureka, said: "The protest of the Richmond Mining Company is deemed sufficient to authorize a hearing to ascertain whether or not the survey of the Albion, No. 1, corresponds with the location of the claim, and the only question to be considered is whether such a hearing should be ordered while action on the application for patent is suspended on account of the suit pending in court on the adverse claim. The subject matter of the protest appears not to be in any way involved in the suit, and it relates solely to questions of non-compliance with the law by the applicant in his proceedings for patent. If the protest is true, a portion of the land was not subject to the application for patent, and that is a question for this office, and it can be investigated and determined without regard to the pending suit. The proceedings which are required by law to be suspended are those relating to the patenting of the claim, and this office is not barred by the filing of an adverse claim from investigating the collateral fact as to whether the application embraces land not subject to the same. Such action has no tendency to advance the application for patent, nor to interfere in any way with the matters properly referred to the court. You will accordingly order a hearing to determine the truth or falsity of the allegations in the Richmond Mining Company's protest."

Section 2450, Rev. Stats. U. S., creates the board of equitable adjudication, consisting of the secretary of the interior, the attorney-general and the commissioner of the general land office, who are authorized to decide, upon principles of equity and justice as recognized in courts of equity, and in accordance with regulations to be settled by the secretary of the interior, all cases of suspended entries of public lands, and to adjudge in what cases patents shall issue upon the same. Section 2456 provides: "Where patents have been already issued on entries which are confirmed by the officers who are constituted the board of adjudication, the commissioner of the general land office, upon the canceling of the outstanding patent, is authorized to issue a new patent, on such confirmation, to the person who made the entry, his heirs or assigns."

In the case of Omaha Quartz Mine (on appeal), Copp, Min. Lands, 198, and the letter of Commissioner McFarland to the register and receiver at Central City, Colo., Id. 317, protests were filed against the issuance of patents on the ground that the notices were not published in the newspapers nearest the mines, and the law had not been complied with. In each case it was held that the questions were such as called for the interposition of the board of equitable adjudication. For any causes existing prior to the date of an application for a, patent the party claiming any rights adverse to the applicant must file his adverse claim before the sixty-days publication expires, and within thirty days thereafter he shall commence his proceedings in a court of competent jurisdiction for the recovery of the claim. But for failure to comply with the law, such as failure to post or publish the notice or do the assessment work as required by law, it then becomes a controversy between the United States and the applicant only, the question being as to compliance on their part with the prerequisite conditions of the law. ( Petit v. Mining Co., 9 Dec. Dep. Int. 565.) And he who has acquired any rights after the application for patent has been made must apply to the land department for a protection of the same.

From the averments in the answer, the defendants were in a position to file a protest in the United States land office, at Carson City, after they had located the Phoenix claim, and before the plaintiff had offered its final proof and payment. They allege that their grantors entered upon and located the claim in the month of January, 1887; that the plaintiff did not do the assessment work, nor make any improvements on the claim, from 1878 until the month of April, 1888; they had one year in which to file a protest against the plaintiff's right to further prosecute its application for patent. If the allegations contained within the answer are true, the defendants had a right to say to the officers of the land department that the applicant had not complied with the terms of the statute, and demand an investigation, and show, if they could, that the plaintiff had not complied with the law. It is not a valid excuse for them to say that the plaintiff gave no additional notice as to when it would make final proof and payment. It was not required to do so, and an examination of the files in the United States land office in Carson City would satisfy the defendants that the application of the plaintiff for patent was filed and pending therein. They not having filed their protest, they are not in a position to attack the patent now.

In Knight v. Association, 142 U. S. 176, 12 Sup. Ct. 258, the supervisory power of the secretary of the interior over all matters relating to the sale and disposition of the public lands, and the issuing of patents thereon, was fully considered, and numerous authorities cited. It is therein declared by Mr. Justice Lamar, speaking for the court, that the secretary was clothed with plenary authority as the supervising agent of the government to do justice to all claimants, and to preserve the rights of the people of the United States, and that he could exercise such supervision by direct orders or by review on appeal, and, in the absence of statutory directions, prescribe the mode in which it could be exercised by such rules and regulations as he might adopt.

In the case of Doe v. Mining Co., 54 Fed. 946, an attempt was made to go behind the patent, and show that the end lines of the Silver King location were not parallel. Judge Ross, in passing upon this question, said: "If the rights conferred by the patent can be defeated by showing a want of parallelism of the end lines in the original location, it is difficult to understand why the patent may not likewise be defeated by showing that the original location was void because its boundaries were not properly marked upon the ground, or because no vein, lode or ledge was discovered within them, or because the statutory requirement in respect to the posting of the notice of location was not complied with, or because of an omission on the part of the locator to comply with any other provision of the statute regarding the location of such lode claims. All such matters I understand to be absolutely concluded by the patent, so long as it stands unrevoked. If questions relating to the boundaries of the location; the marking of them; the discovery of a vein, lode or ledge within them; the posting of the required notice, etc., are open to contestation after the issuance of a patent for the claim, as before, the issuance of such an instrument would be a vain act, and would wholly fail to secure to the patentee the rights and privileges designed by the law authorizing its issue. The very purpose of the patent is to do away with the necessity of going back to the facts upon which it is based. Authorities to this effect, in both federal and state courts, are so numerous as to render it, I think, unnecessary to cite them."

In Smelting Co. v. Kemp, 104 U. S. 639, on the trial of the case the plaintiff introduced the patent and its record title, and rested its case. The court permitted the defendant to introduce in evidence a certified copy of the record of proceedings in the general land office at Washington, upon which Starr obtained his patent. "The plaintiff objected to the introduction of the paper on the ground that it could only show, or tend to show, the regularity or irregularity of the proceedings before the executive department in obtaining the patent or the validity or invalidity of the possessory title or pre-emption right upon which the patent was founded, and that no evidence could be introduced to impeach the patent, or attack it collaterally, or in any way affect it in the action."

In passing upon this ruling, Justice Field, speaking for a majority of the court, after holding that the actions or decisions of the officers of the land department could not be assailed, at page 641, said: "It is this unassailable character which gives to it [the patent] its chief, indeed its only value, as a means of quieting its possessor in the enjoyment of the land it embraces. If intruders upon them could compel him, in every suit for possession, to establish the validity of the action of the land department, and correctness of its rulings upon matters submitted to it, the patent, instead of being a means of peace and security, would subject his rights to constant and ruinous litigation. He would recover one portion of his land, if the jury was satisfied that the evidence produced justified the action of the department, and lose another portion, the title whereto rests upon the same facts, because another jury came to a different conclusion. So his rights in different suits upon the same patent would be determined, not by its efficacy as a conveyance of the government, but according to the fluctuating prejudices of different jurymen, or their varying capacities to weigh the evidence." ( Moore v. Wilkinson, 13 Cal. 478; Beard v. Federy, 3 Wall. 492.)

And at page 647 of the same report the judge says: "According to the doctrine thus expressed, and the cases cited in its support (and there are none in conflict with it), there can be no doubt that the court below erred in admitting the record of the proceedings upon which the patent was issued, in order to impeach its validity. The judgment of the department upon their sufficiency was not, as already stated, open to contestation. If, in issuing a patent, its officers took mistaken views of the law, or drew erroneous conclusions from the evidence, or acted from imperfect views of their duty, or even from corrupt motives, a court of law can afford no remedy to a party alleging that he is thereby aggrieved. He must resort to a court of equity for relief, and even then his complaint cannot be heard unless he connects himself with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent; and he must possess such equities as will control the legal title in the plaintiff's hands. ( Boggs v. Mining Co., 14 Cal. 279; Chapman v. Quinn, 56 Cal. 274). It does not lie in the mouth of a stranger to the title to complain of the acts of the government with respect to it. If the government is dissatisfied, it can, on its own account, authorize proceedings to vacate the patent or limit its operations."

Wight v. Dubois, 21 Fed. 693, was a bill in equity to set aside a patent to a mining claim. Brewer, J., on petition for rehearing, said: "The government, as the original owner, offers the title to these mineral lands, upon certain conditions', to whomsoever discovers mineral. The amount of land it will convey to each locator is limited, and certain forms of procedure are prescribed, but the primal fact is that the lands are offered to those who discover the mineral. In this matter the government resembles a private land owner, who makes an offer to sell his lands upon specified conditions. When the patent issues, the title passes from the government, and no one can question that title who has not, prior thereto, by compliance with the conditions prescribed by the government, himself acquired an interest in the land. It matters not what wrong the patentee may have perpetrated upon the government; it, and it alone, can complain. In other words, when grantor and grantee are satisfied, a stranger has nothing to say." ( Field v. Seabury, 19, How. 330.)

In the case of Steele v. Refining Co., 106 U. S. 453, 1 Sup. Ct. 389, the answer charged that bribery and subornation of perjury were committed by Starr in inducing parties to make false affidavits respecting the claim patented by the land department. The perjury consisted in Starr's affidavit as to his citizenship, and the possession and working, by himself or grantors, of the claim for which the patent was issued. That false and perjured testimony was used to influence the officers of the land department. There was no allegation of improper conduct on the part of the officers. At page 457, 106 U. S., and page 389, 1 Sup. Ct., the court, in passing upon the question of fraud, said: "Though the various matters of fraud, perjury, and subornation of perjury, alleged as a defense, are to be taken as true for the purposes of this decision, they are not to be taken as true for any other purpose. What we decide is that, if true, they are not available in this form of action, and that any relief against the patent founded upon them must be sought in another way, and by a direct proceeding."

See, also, the opinion of Justice Hawley in the case of Railroad Co. v. Cannon, 4 C.C.A. 303, 54 Fed. 253, and authorities therein cited; Turner v. Donnelly, 70 Cal. 604, 12 Pac. 469.

It seems to us that the above decisions are directly in point on the question under consideration in the case at bar.

The allegation charging fraud in this answer is "that, in order to induce the register and receiver to sell said mining claim, and issue their receipt for the payment of the land, and to induce the government of the United States to sell and patent said mining claim to plaintiff, the said plaintiff procured, and caused to be procured, and filed in the office of the register and receiver, false and fraudulent affidavits and testimony showing, and tending to show, that the assessment work had been done from the year 1879, to and including the year 1887, when in fact the plaintiff well knew it had not been done."

It does not charge any officer of the land department with being guilty of fraud, nor that they colluded or connived with the plaintiff in any manner in the procurement of said patent, and, if a fraud was perpetrated, it was against the government. Such being the case, the United States is the only one that can ask to have the patent set aside. The patent is not void, admitting that everything stated in the answer be true. It is merely voidable; and, it having been issued to the plaintiff, there can be no higher evidence of title, and, in favor of the validity and integrity of such an instrument, we must presume that all antecedent steps necessary to its issuance were duly taken.

It being admitted by the answer that the paramount title was in the United States, and that that title was transferred to the plaintiff by the department of government authorized by law to transfer its title by patent, the presumption is that the plaintiff is entitled to the possession, as well as to the whole beneficial interest; and, as the grantee of the government — the plaintiff — takes and holds whatever interest therein the government could grant, subject to no conditions other than those expressed in the patent, and no person, company, or association claiming in his, their, or its own right any interest in the lands can legally prevent the patentee from entering, under and by virtue of its patent. The mere entry and claim of relocation of a part of the Comet claim by the defendants or their grantors did not give them a vested or an absolute estate as against the United States, nor one which the government might not impose additional duties upon, or take away from them entirely. ( The Yosemite Valley Case, 15 Wall. 86.)

It was not sufficient for the defendants to have alleged in their answer that the plaintiff was not entitled to the patent. The government was satisfied with the proofs submitted by the plaintiff, and received its five dollars an acre, and issued its patent for the land, and into the bona fides of this transaction no one but the government can inquire.

In Wright v. Dubois, supra, it is said: "The government, as a landowner, offers its lands for sale upon certain prescribed conditions, compliance with which is a matter of settlement between the owner and purchaser alone, and with which no stranger to the title can interfere. Publication of notice is process bringing all adverse claimants into court, and, if no adverse claims are presented, it is conclusively presumed that none exist, and that no third parties have any rights or equities in the land. Thereafter, the only right or privilege remaining to any third parties is that of protest or objections filed with the land department, and cognizable only there. If sustained by the department, the proceedings had by the applicant are set aside; if overruled, the protestant or objector is without further right or remedy." ( Land Co. v. Griffey, 143 U. S. 41, 12 Sup. Ct. 362; Lee v. Johnson, 116 U. S. 48, 6 Sup. Ct. 249; Sparks v. Pierce, 115 U. S. 411, 6 Sup. Ct. 102; Gwillim v. Donnellan, 115 U. S. 50, 5 Sup. Ct. 1110; Deffeback v. Hawke, 115 U. S. 405, 6 Sup. Ct. 95; Bohall v. Dilla, 114 U. S. 50, 5 Sup. Ct. 782; Smelting Co. v. Kemp, supra; Lee v. Stahl, 9 Colo. 210, 11 Pac. 77; Hamilton v. Mining Co., 33 Fed. 565; Chapman v. Quinn, 56 Cal. 274.)

In their anwswer the defendants allege that their grantors relocated a portion of the Comet claim in the month of January, 1887.

If the Comet claim was abandoned at that time, the relocation thereof by the defendants' grantors entitled them to the exclusive possession and use thereof, as against everybody except the United States, which, prior to patent, is the owner of the legal title.

The different statutes providing for the location and patenting of mining claims are to be considered together, and the laws giving the miner certain rights to mining claims which he has located in compliance therewith must be construed in connection with the adverse provisions treated of in several enactments.

The locator's claim by right of possession is the lowest grade of title known to the mining laws. Under such a right the locator cannot assert or claim any title as against the government. The government merely recognizes his right to remain in possession so long as he complies with the rules and regulations which congress may prescribe. The equitable title accrues to the applicant upon entry and purchase at the United States land office. Still, the legal title is in the government, and the applicant may be deprived of his equitable title if it can be shown that he has not complied with the law; and that showing must be made before the officers of the land department before the patent issues. Title in fee simple is acquired on delivery of patent, evidencing the legal title, and, when the patent is issued, it relates back to the inception of the rights of the patentee, in so far as it may be necessary to cut off intervening rights and claimants.

It sometimes happens, under the pre-emption laws, that the legal title may be in one person, and a superior equity in another. But such cannot occur under the operation of the United States mining laws. The statute providing for adverse proceedings in the land office and adverse suits in the courts, all legal and equitable adverse titles and claims must be presented to and passed upon by the courts prior to the issuance of the patent, or be considered stale and abandoned.

In the case of Miller v. Girard, (Colo.App.) 33 Pac. 69, it appears from the facts, as stated by the court, that the Long John lode was located in 1883. Sometime thereafter a claim known as the "North Star" was located in such a manner as to include within its exterior boundaries a portion of the Long John claim, including the discovery shaft. Thereafter, the owners of the North Star obtained a patent to their claim, including the ground on which the Long John discovery shaft had been sunk. The owners of the Long John did not file a protest, nor object to the issuance of the patent to the North Star claim. In 1888 the Aurora and Elgin claims were located, and we would infer that these locations included a portion of the Long John location. After such location, the owners of the Aurora and Elgin claims made application for a patent, and, while the advertisement was pending, the owners of the Long John commenced adverse proceeding. The priority of the Long John location was conceded, and also that the assessment work had been done each and every year since its location; but it was contended, on the part of the owners of the Aurora and Elgin locations, that the fact of the North Star claim having been located subsequent to the Long John, and the North Star Company having secured a patent to its location, which included the Long John discovery shaft, the residue of the Long John location reverted to the public domain, and was open to exploration and location by the parties making the Aurora and Elgin locations.

In passing on this question, Bissell, P. J., speaking for the court said: "Ever since the decision of the case of Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. 1110, it has been the conceded and established law that if a locator permits an adjoining claimant to obtain a patent from the government for that portion of his territory which includes his discovery shaft, and he is without another which gives him a superior right as against the contesting claimant, he must be adjudged to have lost title to whatever territory is embraced within the lines of his claim. That case unquestionably decides that, if the locator permits the adjoining occupant to patent that part of his territory, it is the equivalent of an adjudication that he is without title, and the remaining part of his location reverts to the condition of public lands, and is open to location and purchase by other citizens and claimants, unless the locators, in some legal fashion, have initiated a new title."

Applying the above rule, which we think is a correct one, to the case under consideration, if the defendents' grantors did locate the Phœnix claim in 1887, which location crossed the Comet claim diagonally, but did not include any of the workings on the Comet location, but all of the workings of the Phœnix claim are within the territorial limits of the Comet claim; and it is also admitted by the answer that the plaintiff re-entered in the month of April, 1888, and resumed work on the Comet claim, made final proof and payment for the land, and obtained a patent therefor, including the workings of the Phœnix Company. Such being the case, and the defendants failing to file a protest or interpose any objections to the resuming of work, or the making of the final proof or payment, by the plaintiff, upon which its patent issued, they are to be treated as having voluntarily waived whatever rights they may have acquired under their location, for, upon the issuance of the patent to the plaintiff, it related back to, and took effect as of, the date of the original location. ( The Eureka Case, 4 Sawy. 317; Lee v. Stahl, 9 Colo. 210, 11 Pac. 77; Kannaugh v. Mining Co., 16 Colo. 346, 27 Pac. 245; Seymour v. Fisher, 16 Colo. 191, 27 Pac. 240.)

The questions as to the location, marking off boundaries, working, or improvements made upon mining claims are all questions of fact, or mixed questions of law and fact, and the decisions of the officers of the land department thereon are final. If the defendants did not file a protest with the register and receiver after their location, and before the plaintiff made its final proof and payment, it was their own fault. The evidence which they now propose to introduce, as to the abandonment of the claim, was known to them before the final proof and payment was made, and should have been taken advantage of at that time. The charge of fraud is vague and indefinite, and, if any fraud was committed, the United States is the proper party to take the necessary proceedings to have the patent declared void. The defendants, not having connected themselves with the government title, cannot attack the patent. It is enough for them to show that the plaintiff was not entitled to have received the patent. They must also show that they occupy such a status towards the property as entitles them to control the legal title. ( Plummer v. Brown, 70 Cal. 545, 12 Pac. 464; Johnson v. Towsley, supra; Smelting Co. v. Kemp, supra; Buckley v. Howe, (Cal.) 25 Pac. 133.)

The plaintiff cannot be held as a trustee for the defendants. This is not one of that class of cases, of which many instances may be found in the decisions of courts, wherein a party receiving a patent from the United States has been declared to hold the legal title merely in trust for another claiming to have a superior equity. There is no privity between the plaintiff and the defendants; they are strangers to each other's titles. No circumstances are alleged or claimed to exist between them, such as to create the relationship of trustee and cestui que trust, and the defendants ask for no such relief in their answer, but, upon the contrary, the defendants' claim is that, by reason of adverse possession of the premises in controversy, they have acquired a title to the claim as against the entire world. ( Collins v. Bartlett, 44 Cal. 380.)

It is admitted in the answer that the top or apex of the Phœnix mining claim, and the lode therein, and all the workings thereon, are within the surface boundaries of the Comet location, and on the plaintiff's patented ground, but that the Phœnix ledge is not the ledge located by the plaintiff or its grantors, and is not the ledge patented; and is more than 300 feet from the center of the Comet ledge.

As we understand the argument of the appellants' counsel, it is this: That, the plaintiff's grantors having discovered a ledge, and having reason to believe that on its strike and horizontal course it ran in a northerly and southerly direction, and made their location accordingly, claiming 1,100 feet along the presumed course of said vein and lode, and 200 feet on each side of the middle thereof, as allowed by the local laws, rules, and customs of the miners of that district, and the patent was issued for the ground so located, the defendants claim that upon further exploration it will be found that the ledge which the plaintiff's grantors located will pass without the east side line of the plaintiff's patented ground, within four or five hundred feet of the south end thereof, and that, by so passing without the side line, the said side line does not only become the end line, to determine its claim to the ledge, but also determines the end of its surface boundaries; and the appellants contend that the plaintiff cannot claim but 200 feet of surface ground north of the point where its ledge is supposed to have crossed its side line, notwithstanding plaintiff holds the government title to six or seven hundred feet north of said point; and the counsel claims that it was not within the power or jurisdiction of the officers of the land department to issue the patent for that portion of the surface ground north of such point, and that the patent is absolutely void as to that portion of the surface ground, and that the defendants had a right to enter upon the north end of the Comet location, and locate any ledge, the top or apex of which was within the surface boundaries of the patented ground.

True it is that if the grantors of the plaintiff were so unfortunate as to locate the Comet ledge in such a manner as that, instead of the vein or ledge continuing lengthwise through the center of the location, it should so far depart from such course and direction that it will pass without the east side line, under such circumstances, the side line becomes the end line, to determine the extent to which the plaintiff can work on or follow the ledge, but does not in any manner affect its ownership to the land embraced within the surface boundaries of its patented ground. ( Mining Co. v. Tarbet, 98 U. S. 463.)

Section 2319 of the revised statutes reads: "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."

Prior to July 26, 1866, the government title to mineral lands could not be acquired. Nevertheless, the government recognized the possessory rights of miners, and their rules and regulations in relation to the holding and working the same; yet they were reserved from survey, from pre-emption, and from all grants. ( U. S. v. Gratiot, 14 Pet. 537; Mining Co. v. Consolidated Min. Co., 102 U. S. 175; Morton v. Nebraska, 21 Wall. 667.)

By the act of 1872, not only the veins, lodes and ledges are open to exploration and purchase, but the land in which they are found is also declared open to occupation and purchase to the extent allowed by the United States mining laws, and the rules and regulations of the miners within the district in which the claim is situated, and the land so defined constitutes a mining claim. The intention of congress in enacting this law was to dispose of the government title to the mineral lands, and this meant that the absolute title could be acquired therein. It did not mean simply an easement, with the right of the owner to pass over the ground in going to and returning from his work, or dumping privileges. The right to occupy and to purchase means the right to acquire the title in fee simple, and the right to acquire such a title is followed by the right to the exclusive enjoyment of the entire surface ground embraced within the lines of the location; and the land described in the patent to the plaintiff is withdrawn from the public domain as though it was a homestead or pre-emption entry. ( Belk v. Meagher, 104 U. S. 283; Forbes v. Gracey, 94 U. S. 762; Butte City Smoke-House Lode Cases, (Mont.) 12 Pac. 860; Deffeback v. Hawke, Talbott v. King, and Beard v. Federy, supra.)

By virtue of its patent, the plaintiff is the owner of all veins, lodes, and ledges, the top or apex of which lies inside the surface lines of its location. Most, if not all, patents for mining claims contain the following: "The premises hereby conveyed, with the exception of the surface, may be entered by the proprietor of any other vein, lode, ledge or deposit, the top or apex of which lies outside the exterior limits of said survey, should the same in its downward course, be found to penetrate, intersect, extend into, or underlie the premises hereby granted, for the purpose of extracting and removing the ore from such other vein, lode, ledge or deposit." This reservation in the patent specifies the conditions and stipulations under which it is issued. It does not authorize a party to enter upon the surface and make a location, nor does it permit the owner of an adjoining location to enter upon the surface. He may follow his ledge beneath the surface, but he cannot enter upon the surface and sink a shaft for the purpose of hoisting the ore to the surface at less expense than he could through his own ground, without first obtaining consent of the owner of the adjoining claim. (Section 2322, Rev. Stats. U. S., "Mineral Laws"; Mining Co. v. Cheesman, 116 U. S. 533, 6 Sup. Ct. 481; Iron Silver Min. Co. v. Elgin Smelting Co., 118 U. S. 198, 6 Sup. Ct. 1177; Mining Co. v. Campbell, 135 U. S. 293, 10 Sup. Ct. 765; Mining Co. v. Sweeney, 4 C.C.A. 329, 54 Fed. 290.)

In the case of Mining Co. v. Leach, 33 Pac. 421, the supreme court of Arizona said: "It was argued, during the presentation of this case by the appellants, that a mining claim, to be valid, must be located along the course of the lode; that the statute contemplates that it shall be so done. The statute, as we understand it, only intends to prescribe the limit of extent along the course of the lode that the locator may claim, not that he shall locate, so that the greatest dimension of his claim shall coincide with the course of the lode. It is provided that the extreme extent along the lode shall not exceed 1,500 feet. It may be less. And if the miner, in making his location, should mistake the direction of the lode upon which he locates, and accordingly make the extreme dimensions of his claim in a direction other than that of the lode, that fact does not invalidate his claim, but only operates to diminish the extent of the lode that he might have included within the boundaries of his claim. Of course, congress expected that the miner would avail himself of the privilege accorded him, and locate along the course of the lode, but it does not require him to do so. The only result of not so locating is that the locator gets less, in extent, of the lode, than he otherwise would have located, and that if the side lines, instead of the end lines, cross the course of the lode, in order to define the locator's rights to pursue the lode on its dip, the side lines will be treated as the end lines."

The title to the land in controversy being in the government, the plaintiff having connected itself with that title, and the extent of its claim not being in excess of the number of feet allowed by the United States mining laws, or the local rules and regulations of the miners within the district, the plaintiff is the owner of all the surface ground described in its patent, and of all ledges, the top or apex of which lies inside of such surface boundary lines.

The appellants contend that the respondent is estopped to maintain this action by reason of its acts in suffering and encouraging them to locate the property, and expend money and labor in discovering and developing the ledge. This contention is untenable. There was no relation of confidence or trust between the plaintiff and the defendants, and none is alleged in the answer or claimed to exist. They were not dealing at all with each other. It does not appear that the plaintiff made any representations concerning material facts, or any statement at all, to the defendants. But it does appear that the defendants were conversant with the facts in relation to the plaintiff's title, for they so state in their answer. Therefore, they were not misled. ( Boggs v. Mining Co., 14 Gal. 366; Kerr, Fraud M., 93; Bigelow, Fraud, 438; People v. Brown, 67 Ill. 437.)

The case presented by the defendants is not covered by the law of estoppel. They and their grantors knew that the lands were mineral lands, and were claimed as such by the plaintiff, and that the title to them could be acquired only under the laws of the United States, and from the United States; and there is no pretense that the defendants ever sought, or contemplated seeking, the title to them from the government, or claimed them in any way or manner except adversely to the plaintiff, and now they allege that they claim them as against the United States and the world. ( Martin v. Zellerbach, 38 Cal. 314.)

The defendants' counsel argues that, they having been in the possession of the premises for more than two years, holding adversely to the plaintiff, they have gained a title by prescription; and they rely upon sections 3632 and 3664 of the general statutes of Nevada in support of this contention.

Section 3632 reads as follows: "No action for the recovery of mining claims, or for the recovery of the possession thereof, shall be maintained, unless it appears that the plaintiff, or those through or from whom he claims, were seized or possessed of such mining claim, or were the owners thereof, according to the laws and customs of the district embracing the same, within two years before the commencement of such action. Occupation and adverse possession of a mining claim shall consist in holding and working the same, in the usual and customary mode of holding and working similar claims in the vicinity thereof. All the provisions of this act, which apply to other real estate, so far as applicable, shall be deemed to include and apply to mining claims; provided, that in such application 'two years' shall be held to be the period intended whenever the term 'five years' is used; and provided, further, that when the terms 'legal title' or 'title' are used, they shall be held to include title acquired by location or occupation, according to the usages, laws, and customs of the district embracing the claim."

Section 3664 reads: "No action for the recovery of real property, or for the recovery of the possession thereof other than mining claims, shall be maintained, unless it appears that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question, within five years before the commencement thereof."

The act defining the time of commencing civil actions was approved November 21, 1861. (Stats. 1861, p. 26.) It was amended in 1867, so as to read as set forth in section 3632, while section 3664 was passed, as a supplementary act, in 1869.

As between parties having no higher title than such as is derived from mere occupancy or possession, an action would undoubtedly be barred at the expiration of two years' adverse possession, under the above statutes. Do the above acts apply and run as against a party who has connected himself with the government title? The plaintiff, holding a patent to the land issued by authority of the United States, was invested with the highest title known to the law, and five years had not elapsed after the issuance of the patent, and before the commencement of this action.

Congress has the absolute power to dispose of the government land, and this power is subject to no limitation. No state legislation can interfere with this right, for it is well settled that the statute of limitations of a state cannot run against the United States, by the third subdivision of the ordinance adopted with our constitution: "That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States." Therefore, the statute did not begin to run against the plaintiff's cause of action until after the issuance of the patent, which is alleged to be on the 29th day of March, 1888. ( King v. Thomas, (Mont.) 12 Pac. 867; Redfield v. Parks, 132 U. S. 241, 10 Sup. Ct. 83.)

Was the plaintiff's cause of action barred in two years after the issuance of the patent, or does it require five years' adverse possession, as provided by section 3635, which reads: "In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the premises, shall be presumed to have been possessed thereof within the time prescribed by law; and the occupation of such premises by any other person shall be deemed to have been under, and in subordination to, the legal title, unless it appears that such premises have been held and possessed adversely to such legal title for five years before the commencement of such action."

I think the section last quoted should govern this case, for the reason that the issuance of the patent to the plaintiff gave new rights. The patentee then had a right superior to any theretofore owned or held by it, viz., the absolute owner in fee simple — the highest and best title known to a court of law.

In passing upon the statute of limitation, the court is in duty bound to take into consideration the nature and character of the property, and the title by which the same is held, upon which the statute is intended to act. Such being the case, it is a well-known fact that, prior to 1866, no title to mineral lands could be acquired. The rights the miners had were those of occupancy and possession so long as they conformed to the rules, regulations, and customs of the miners within the district where the claims were situated. This right of occupancy was recognized and permitted by the United States, and the rules and regulations of the miners were recognized and enforced by the courts of the mining states and territories. ( Gore v. McBrayer, 18 Cal. 588; Coleman v. Clements, 23 Cal. 248.)

Under this condition of affairs, section 4 of the statute of limitations was enacted in the month of November, 1861. The object of this statute was to prevent the occupation of large tracts of mineral land without any title but that of the right of possession, and without working the same for an unreasonable length of time.

The intention of the legislature is the leading, and in fact the only, object to be inquired into by a court in construing legislative enactments; and it must be conceded that the first and most direct means in arriving at that intention is in the application and meaning of the language used. Therefore, when the legislature used the words, "seized or possessed of such mining claim, or were the owners thereof, according to the laws and customs of the district embracing the same. * * * Occupation and adverse possession of a mining claim shall consist in holding and working the same, in the usual and customary mode of holding and working similar claims in the vicinity thereof" — they wished to be understood as meaning that the act was to apply to claims held by location and possession only, and he who could not show a higher title than that of a possessory right could not maintain his action against one who had entered therein and held adversely for two years.

If the purchasing of the land from the government gives no greater rights or privileges to the holder of the patent than he would have under his possessory right, then it is a useless waste of time and money in applying for a patent. That this is not the case, and that he who has made his application for a patent, and paid the purchase price for the land, is entitled to greater privileges, is shown by the rulings of the commissioner of the general land office, and the decisions of the United States and state courts, in this: A party holding by possession is required to perform the annual labor or make improvements each year, but, the moment he receives the receipt showing that he has paid for the land, he is not required to do the work, nor make the improvements, pending the decision on his application and the issuance of the patent. ( Aurora Hill Con. Min. Co. v. Eighty-Five Min. Co., 12 Sawy. 359, 34 Fed. 515; Deno v. Griffin, 20 Nev. 250, 20 Pac. 308; Benson Mining Co. v. Alta Mining Co., 145 U. S. 430, 12 Sup. Ct. 877.)

Nor is the patentee required to perform labor or make improvements on his claim after he receives his patent. The legislature of Montana enacted a law barring the right of recovery of a mining claim where the owner had not been in possession within one year before the commencement of the action. Congress extended the time for the doing of the assessment work. The locator had not been in the possession of his claim for over eighteen months, and others relocated the Claim. In passing upon the validity of this statute, Chief Justice Waite said: "Under the act of congress, as has just been seen, the original locators, or their grantees, had what was equivalent to a grant by the United States of the right to the exclusive possession and enjoyment of the property until January 1st. The Montana statute, if in any respect it is repugnant to this, was repealed to the extent of such repugnancy by the act of congress. As between possessors having no other title than such as is derived from mere occupancy, an action would undoubtedly be barred by the Montana statute." ( Belk v. Meagher, 104 U. S. 286.)

As hereinbefore stated, prior to 1866 the government title to mineral lands could not be obtained. By the statute of July 26, 1866, any person or association of persons claiming a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local rules and customs of the miners in the district where the same was situated, and having expended, in labor and improvements, an amount of not less than $1,000, and in regard to whose possession there is no controversy or opposing claim, was permitted to file his application for a patent, and the diagram filed with the application for patent should be so extended, laterally or otherwise, as to conform to the local laws, customs and rules of miners. But, under that act, no plat or survey or description should in any case cover more than one vein or lode, and no patent should issue for more than one vein or lode, which should be expressed in the patent. No location thereafter made should exceed 200 feet along the vein or lode for each location, with an additional claim for discovery, together with a reasonable quantity of surface ground for the convenient working of the same. Under the law of 1866, the vein, lode, or ledge was the only thing that could be located; the surface ground was not subject to location. Parties discovering a vein or lode were entitled to locate 200 feet for discovery. They could follow that ledge in any direction it might turn, but the only claim they had to the surface adjoining was the privilege of using it for convenient working of their ledge. Another party discovering a vein, lode, or ledge running parallel with the original location, and within ten feet of it, being a separate ledge, could locate and hold the same, and procure a patent for it, notwithstanding its close proximity to the original location.

By the act of congress of 1872 the entire system of locating and holding mining claims was changed. One or more persons can locate 1,500 feet in length, and not to exceed 600 feet in width; and not only are the veins, lodes, and ledges offered for sale, but also the land in which they are found. And, under the act, a patent will not be issued for the vein, lode, or ledge alone. The application must embrace the quantity of surface ground, as allowed by the act, or the local rules of the district; and, when the patent issues, it vests in the patentee the title in fee simple, not only to all the surface ground embraced within the calls of the patent, but also all veins, lodes, and ledges, the top or apex of which lies inside of the surface boundaries of such location.

I think that, under the act of 1872, new and greater privileges were granted to the locator, and, when he has connected himself with the government title, his rights assume the character, and his property is to be governed by the rule as provided for in sections 3634 and 3635. Congress has made the possession of public land, which is valuable for mineral, separate and distinct from the fee; and, in recognizing the possessory rights of miners while the paramount title remained in the government, by section 9 of the act of February 27, 1865 (Rev. Stats., sec. 910), it was enacted "that no possessory action between individuals in the courts of the United States for the recovery of mining titles should be affected by the fact that the paramount title to the land was in the United States, but that each case should be adjudged by the law of possession."

And it seems to me that the legislature took the same view by the acts of 1867 and 1869; and when the language, "or were the owners thereof, according to the laws and customs of the district embracing the same," in the first paragraph, "and provided further, that when the terms 'legal title' or 'title' are used, they shall be held to include title acquired by location or occupation, according to the usages, laws and customs of the district embracing the claim," in the closing paragraph of section 3632, was used, it wished to be understood that the act should apply to ownership or title acquired by location and possession only, and not to the title in fee acquired from the government. The land department of the United States, in speaking of the ownership of land, uses the term, "owner by right of possession, or title by possession;" but, after the title has passed from the government, it is then spoken of as the fee being in the patentee. The government has said to the miner: "You may occupy and possess the mineral lands of the United States. You may extract the ores and minerals therefrom. Yes, you may sell, and give a good and valid title thereto. But you cannot assert this right as against the government, who is the owner of the paramount title, and has reserved unto itself the right to extend, limit, or abolish this right of possession at any time." And, when the government issued its patent to the plaintiff, it gave the plaintiff a title in fee, which, having been fixed by the rules of property, which are a part of the general law of the state, cannot be divested by a section of such law which was enacted merely to regulate neighborhood customs or regulations, which were and are intended to apply to the possessory rights of individuals only, and not to the title derived from the government. When, as in this case; the language used in sections 3632 and 3664 are supposed to conflict with the language and leading design as expressed in several other suctions of the same act, can there be a better or safer rule than to place that construction upon them which will reconcile and harmonize, with the nature of the title to the property, the evident intention of the lawmakers, and, to my mind, what is equitable and just? It frequently becomes the duty of the court, in giving effect to statutes, to restrain, enlarge, or qualify the ordinary and literal meaning of the words used. (Sedg. St. . Const. Law, 199, 209.)

For the reasons above given, I dissent from the views expressed by my associates in relation to the construction that should be placed upon the statute of limitations, and I think the judgment sustaining the demurrer should be in all things affirmed.