49 Vroom. Attorney-General v. Sooy Oyster Co. that the land office in issuing the patent must have determined that the facts existed which would make the patent valid. The Supreme Court held, reversing the trial court, that by a proper construction of the defendant's patent, only such lands were excepted as were at the time of the grant known to be so valuable for their minerals as to justify expenditure for their extraction. It said that the question was not whether there were valuable minerals at the time that the patent was issued, but whether such minerals were known to exist within the premises at the date of the town site patent to the probate judge. "The plaintiff not having offered any proof upon this point, but having relied upon the fact as a matter of presumption merely, the defendant should have been permitted to establish the negative of it. The absence of any proceedings required by law or the custom of the mining district to initiate a right to a mining claim which he might perhaps have shown would have been very persuasive that no mine was known to exist." The case, therefore, made the validity of a patent issued by the land office depend upon a matter resting entirely upon parol evidence as to whether minerals were known to exist at the time the town site patent was granted. The court treated the mining patent as affording a presumption that the existence of such minerals was known, subject to be rebutted by proof on the part of the claimant under the town site patent. The case is important, because the patent which was pronounced inoperative contained nothing on its face to indicate its defect. The defect arose out of the fact that the minerals in question were held not to be within the reservation of the prior town site patent, and what that reservation was, depended upon no record, but upon parol testimony entirely. At first blush it might appear as if the ruling of the court in this case upon the effect of the town site patent conflicted with the rule that lands reserved from sale do not pass by the patent. An examination of the opinion, however, shows clearly that such is not the case, for the court held that while the language of the exception in the town site patent Attorney-General v. Sooy Oyster Co. 78 N. J. L. would seem on first impression to constitute a reservation of such mines in the land sold and all mining claims on them to the United States, that such was not the necessary meaning, since, in strictness, the words imported only that the provisions by which title to the land in such town sites is transferred shall not be the means of passing a title also to mines of gold, silver, &c. And this explanation by the court distinguishes also its subsequent decision in Barden v. Northern Pacific Railroad Co., 154 U. S. 288 (at pp. 323, 324). In that case all that the court decided was that the congressional grant of lands to the Northern Pacific railroad, which reserved mineral lands, reserved not only lands which were known to be mineral at the time, but those which were subsequently discovered to be such. In order to meet the argument that that construction of the grant made the title uncertain, the court said, arguendo, that the title would be made certain when the patent was issued, but this conclusion of the court rested upon the view suggested in Davis v. Weibbold, that there was power in the land office to issue a patent even for mineral lands, and that it was only the procedure which was different. I do not, of course, question that when a patent is once issued, or a riparian grant is once made, defects in procedure cannot be questioned collaterally. All the cases treat lands reserved from sale and lands previously conveyed as coming within the same class. The law is thus summed up in St. Louis Smelting and Refining Co. v. Kemp, 104 U. S. 636. Mr. Justice Field, while maintaining the conclusive presumption attending a patent for lands, used the following language: "Of course, when we speak of the conclusive presumptions attending a patent for lands we assume it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted con 49 Vroom. Attorney-General v. Sooy Oyster Co. veyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would, in that event, be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind disclosing a want of jurisdiction may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act." And again: "The doctrine declared in these cases as to the presumptions attending a patent has been uniformly followed by this court. The exceptions mentioned have also been regarded as sound, although from the general language used, some of them may require explanation to understand fully their import. If the patent, according to the doctrine, be absolutely void on its face it may be collaterally impeached in a court of law. It is seldom, however, that the recitals of a patent will nullify its granting clause, as, for instance, that the land which it purports to convey is reserved from sale. Of course, should such inconsistency appear, the grant would fail. Something more, however, than an apparent contradiction in its terms is meant when we speak of a patent being void on its face. It is meant that the patent is seen to be invalid, either when read in the light of existing law, or by reason of what the court must take judicial notice of, as, for instance, that the land is reserved by statute from sale or otherwise appropriated, or that the patent is for an unauthorized amount, or is executed by officers who are not entrusted by law with the power to issue grants of portions of the public domain." For the same view see Lake Superior Ship Canal, &c., Co. v. Cunningham, 155 U. S. 354 (at p. 373), and Burfenning v. Chicago, St. Paul, &c., Railway Co., 163 Id. 321. In Mahn v. Harwood, 112 U. S. 354, which was a suit to recover damages alleged to have resulted from the infringement of letters patent, and therefore a collateral attack on the patent, Mr. Justice Bradley said: "Where it is evident that Attorney-General v. Sooy Oyster Co. 78 N. J. L. the commissioner, under a misconception of the law, has exceeded his authority in granting or reissuing a patent, there is no sound principle to prevent a party sued for this infringement from availing himself of the illegality, independently of any statutory permission so to do. This is constantly done in land cases, where patents have been issued which the land officers had no authority to issue, as where the lands have been previously granted, reserved from sale, or appropriated to other uses." These cases justify the statement that a grant by the riparian commission of lands which they have been expressly forbidden by the legislature to sell conveys no title, and is subject even to collateral attack, and that in a proper case this attack may be made by parol proof of the actual character of the lands. It does not help us much to say that the action of the riparian commission cannot be questioned as to matters of fact within their jurisdiction. The important question is what fact was essential in order that the commission might have jurisdiction. No better description of such jurisdictional fact can be had than has been given in the cases above cited and all agree that if the legislative department has reserved the land from sale, the administrative department of the government has no power over the land so reserved. None of the cases hold that this reservation must be of a particular tract described by metes and bounds or identified by specific name. Morton v. Nebraska, as far as it goes, seems to indicate the contrary, and clearly the Leadville mining cases are authority for the assertion that such definite description is unnecessary. A lode of mineral in the earth may be marked when it is finally explored or worked with all its spurs, dips and angles, but until that is done, it is at least as hard to locate definitely as a natural oyster bed. Natural oyster beds, as the term is used in our legislation, seems to mean something different from land under tidewater suitable for growing oysters. From the beginning of legislation on the subject of oysters in 1846 the legislature has constantly made reference to natural oyster beds as something well known and distinct from tidal lands 49 Vroom. Attorney-General v. Sooy Oyster Co. suitable for the planting of oysters. The original act, by section 14 (Gen. Stat., p. 808), authorized the owners of flats and coves along the shore to stake out land and plant oysters, provided they did not include any natural oyster beds always covered with water beyond low-water mark, and section 20 prohibited, under a penalty, the removal of old shells from any natural oyster banks or beds. The amendment of 1890 (Gen. Stat., p. 813, pl. 43) authorized the staking out of ground and the planting of oysters on flats or in coves upon which there had not been theretofore any natural oyster beds. The supplement of 1891 (Gen. Stat., p. 813, pl. 44a) confirmed the rights of persons using or occupying grounds under tidewater for the planting or cultivation of oysters, "said grounds not being natural clam grounds or natural oyster seed beds;" it further declared (Gen. Stat., p. 814, pl. 44c) that any person who should plant oysters upon any of the natural beds should be deemed a trespasser and such planted oysters should be forfeited to the public. Surely the legislature would not have decreed a forfeiture unless the natural beds were of such a character that the planter could not be mistaken, and trespass innocently. Section 8 of the act of 1882 (Gen. Stat., p. 823, pl. 95), as to Maurice river cove and Delaware bay, makes it a misdemeanor, punishable by imprisonment, to take oysters from natural oyster beds for the purpose of planting in the waters of any other state. It would be most unreasonable to punish such an act as a crime unless the natural oyster beds were of so defined a character that the offender must know that he was violating the statute. The act of 1883 as to Maurice river cove and Delaware bay (Gen. Stat., p. 824, pl. 104), the supplements of March 16th, 1893 (Gen. Stat., p. 830, pl. 129), of April 5th, 1893 (Gen. Stat., p. 830, pl. 131), contain similar recognition of natural oyster beds. The Ocean County act of 1886 for the first time makes a distinction between natural oyster beds in general and those "now known and recognized," a distinction which suggests the provisions of the United States statutes as to known mineral lodes in the cases already cited. |
