premises in controversy," and for costs. The opinion is reported in 32 Colorado, 472.

Mr. William C. Prentiss, with whom Mr. Charles F. Potter and Mr. Horace F. Clark were on the brief, for Brown, plaintiff in error in Nos. 97 and 99, and defendant in error in No. 98:

The stipulation contains no evidence upon the question of whether or not the land in question was vacant or unappropriated and subject to location.

The acceptance of the application of Brown by the local officers is evidence that the land was unappropriated and subject to entry, but even in the absence of evidence the presumption must be that land in the so-called public land States has remained unappropriated, Lockhart v. Johnson, 181 U. S. 516, and, therefore, Brown, being prior in time, must be held to be paramount in right of possession.

There is no competent evidence of the existence of the Kohnyo location or the fact that entry of the same had been made. The Land Department decisions are not proof. The proper proof of a mineral entry is the full record of the application and final receipt accompanied by the survey so as to fix the locus. Culver v. Uthe, 133 U. S. 655. And proper proof of a mining location, embraces evidence of discovery, etc., location notice, certificate of location and assessment work.

A missing fact cannot be supplied by a concession of counsel. This has been repeatedly held in Colorado. Pueblo v. Robinson, 12 Colorado, 593; Townsend v. Fulton Co., 17 Colorado, 145. The rule is the same in this court. Zadig v. Baldwin, 166 U. S. 485.

The pendency of a mineral entry does not prevent location by another of the ground covered thereby, and such location becomes effective if the entry be cancelled or relinquished and the possessory title forfeited or abandoned. Lavagnino v. Uhlig, 198 U. S. 443.

Location proceedings and patent proceedings are distinct,

and application for patent and entry do not affect the status of the ground, so far as possessory title is concerned, unless patent finally issue and, by relation back, cut out any intervening claims. If the patent proceedings prove abortive and the entry be cancelled there can be no relation back, and it follows that the effect of the certificate of purchase is destroyed. In such case the applicant is relegated to his possessory title. Clipper Mining Company v. Eli Mining and Land Company, 194 U. S. 220, 226; Jaw Bone Lode v. Damon Placer, 34 L. D. 72. See also Murray v. Polglase, 23 Montana, 401; Adams v. Polglase, 32 L. D. 477; S. C., 33 L. D. 30.

The Kohnyo entry, as to the south 700 feet thereof, if not invalid, was eliminated at the expiration of sixty days from notice of Commissioner's decision of May 28, 1895, which was a direction to the local officers to cancel the Kohnyo entry as to the south 700 feet thereof upon default by the claimant in making election and furnishing evidence as therein allowed or taking appeal. Guillery v. Butler, 24 L. D. 209; Northern Pacific R. R. Co. v. DeLacey, 174 U. S. 622.

And in such case the application for reinstatement takes effect as of the date formal application is made to the register of the local office for republication of notice. Jaw Bone Lode v. Damon Placer, 34 L. D. 72.

The entry as to the southerly 700 feet was not eliminated by the filing of a relinquishment. It was not cancelled by formal order. 3 Copp's Land Owner, 38.

Mr. Charles C. Butler, with whom Mr. J. C. Helm was on the brief, for Gurney, defendant in error in No. 97, submitted: That the land in question was vacant and unappropriated was assumed to be true throughout the case. It cannot now be denied. Pratt v. Conway, 148 Missouri, 291; Humes v. Proctor, 151 N. Y. 520; 2 Ency. Law & Procedure, 675; Lemmon v. Sibert, 15 Colo. App. 136; Elliott on Appellate Procedure, $489.

The act of 1881 has always been construed to mean that it

is not sufficient to entitle the applicant for patent to a judgment in his favor, that the plaintiff fails to prove title to the ground in the contesting location. It is held that before defendant, who is a patent applicant, can have judgment, he must prove that he has title to the ground. And it is also held that, in making such proofs, all the requirements of law, relating to the location of a mineral claim must be shown to have been complied with. And if neither the plaintiff nor the defendant has made such proofs, then the jury must return a verdict accordingly and judgment be entered that neither party is entitled to the ground. McGinnis v. Egbert, 8 Colorado, 55; Becker v. Pugh, 9 Colorado, 589; Manning v. Strahlor, 11 Colorado, 453; Lindley on Mines, § 763; Perego v. Dodge, 163 U. S. 168; Brannigan v. Dulaney, 2 L. D. 751.

The territorial extent of the Kohnyo location is res adjudicata and is not subject to collateral attack. The action of the Land Department in matters within its jurisdiction is just as conclusive and binding and impervious to collateral attack as is judicial action by one of the ordinary and usual judicial tribunals. Steel v. Smelting Co., 106 U. S. 450; Smelting Co. v. Kemp, 104 U. S. 640; Lindley on Mines, § 208.

There was no appearance for Small, plaintiff in error in No. 98, and defendant in error in No. 99.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

The question in these cases, which was intended to be, and was, passed upon, is when, in respect of the three locations, did the premises in controversy become subject to location?

In the state Supreme Court, counsel for Brown contended that the judgments below must be affirmed because the agreed facts failed to identify the premises in dispute as part of the Kohnyo claim; did not establish the validity of that location; and did not affirmatively show that the premises, when lo

cated as the Scorpion, were not part of the unappropriated public domain.

But the Supreme Court applied the rule that where the existence of certain facts is assumed in the trial court and the trial proceeds, without objection, on that assumption, and the case is decided in reliance thereon, neither party will be heard in the court of review to question there for the first time the existence of the facts, and especially not where the alleged omissions might have been supplied if called to the attention of the trial court. And properly applied it, for the identity of the ground in controversy and the validity of the original Kohnyo location were conceded by both parties; and, indeed, counsel really does not deny them as matters of fact but simply objects that the stipulation did not include them. Moreover, we think the stipulation and exhibits attached containing the various proceedings before the Commissioner of the General Land Office and the Secretary of the Interior establish the validity of the Kohnyo location. According to that record, the Kohnyo claim had passed to final entry; this entry had been recognized by the Commissioner of the General Land Office and the Secretary; the question litigated in the Land Department for something like three years, as to the knowledge of the placer applicant at the time of his application for patent of the existence of the Kohnyo vein in the placer ground, had been decided adversely to the Kohnyo claim; the Kohnyo claimant had thereupon accepted this decision, acquiesced therein, and availed himself of the privilege extended by the Commissioner's decision of May 28, 1895, and elected to retain the northerly tract of the Kohnyo claim, which amounted to a relinquishment of the southerly tract, and the entry as to that tract was thereafter formally cancelled.

It may be added also that in adverse proceedings each party is practically a plaintiff and must show his title. Jackson v. Roby, 109 U. S. 440; Perego v. Dodge, 163 U. S. 160, 167. By the act of Congress of March 3, 1881, 21 Stat. 505, c. 140, it was provided that if in an adverse suit "title to the ground

in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict." Under that act it is held that before the applicant for a patent can have judgment he must prove his claim of title to the ground. The object of the statute was, as we said in Perego v. Dodge, supra, to provide, in the case of a total failure of proof of title, for an adjudication "that neither party was entitled to the property, so that the applicant could not go forward with his proceedings in the Land Office simply because the adverse claimant had failed to make out his case, if he had also failed." 2 Lindley on Mines, § 763, and cases cited.

Of course it is essential that at the date of a location the ground located on should be part of the public domain, and in the present case the specific question affirmatively raised was whether the ground in controversy was a part of the public domain at the time of the respective contested locations.

It seems to us that when the Scorpion locator attempted to make that location he conceded the validity of the Kohnyo location and the segregation by that location from the public domain of the southerly portion of that claim, but assumed that the decision of the Secretary of May 7, 1898, operated to restore that tract to the public domain as of that date, since he relocated' it on May 13, and on the following fifteenth of July filed an amended location. But the filing of the latter certificate did not cure the defect arising from the fact that the discovery shaft of the Scorpion was upon ground covered by the Kohnyo's claim, and the filing of the amended certificate could not perfect the Scorpion location in view of the previous location of the Hobson's Choice, which created intervening rights in favor of a third person.

The stipulation of facts was evidently prepared in respect of the inquiry concerning the date at which the ground in controversy reverted to and 'became a part of the public domain, and that embraced the question whether that resulted from the decision of the Secretary of May 7, 1898; or from