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Attorney-General v. Sooy Oyster Co.

78 N. J. L.

tifying the lands under a railroad grant or in issuing a patent is not merely irregular, but absolutely void, and may be shown to be so in any collateral proceeding."

There is a class of cases of which French v. Fyan, 93 U. S. 169, is a good example, where the determination of the land . office as to the character of the land—in that case swamp land or not—was held final. In all these cases, as far as I know, it will be found that the land covered by the patent was land which the land office had power to grant, and the only difference was a difference of procedure, of the method by which the title of the government was to be conveyed, not of the right of the land commissioner to convey. In other cases, where the land was not subject to disposition, the result was different. I need refer only to cases which have a more or less close analogy to the case at bar.

In Morton v. Nebraska, 21 Wall. 660, Morton and others, in an action of ejectment, claimed lands by virtue of patents under the Military Bounty Land act. The State of Nebraska claimed the lands under acts of congress reserving saline lands from sale. It was held that the title of the state must prevail. Mr. Justice Davis said:

"It does not strengthen the case of the plaintiffs that they obtained the certificates of entry, and that patents were subsequently issued on these certificates. It has been repeatedly decided by this court that patents for lands which have been previously granted, reserved from sale, or appropriated, are void. The executive officers had no authority to issue a patent for the lands in controversy, because they were not subject to entry, having been previously reserved, and this want of power may be proved by a defendant in an action at law."

In that case the lands in question had been noted on the field books as saline, but these notes had not been transmitted to the register's general plats. The case turned upon the fact that the land was not only saline but known to be such, and the court reserved the question what effect the statute reserving such lands might have on salines hidden in the earth.

49 Vroom.

Attorney-General v. Sooy Oyster Co.

In Reynolds v. Iron Silver Mining Co., 116 U. S. 687, the mining company claimed under a patent for placer mines. The defendant asserted a right under what are called lode claims. The court held that the act of congress provided for three classes of cases :

1. When the applicant for a placer patent is at the time in possession of a vein or lode included within the boundaries of his placer claim he shall state that fact, and on payment of the sum required for a vein claim and twenty-five feet on each side of it at $5 per acre and $2.50 for the remainder of the placer claim, his patent shall cover both.

2. Where no such vein or lode is known to exist at the time the patent is applied for, the patent for a placer claim shall carry all valuable mineral and other deposits which may be found within the boundaries thereof.

3. But in cases where the applicant for the placer patent is not in possession of such lode or vein within the boundaries of his claim, but such a vein is known to exist, and it is not referred to or mentioned in the claim or patent, then the application shall be construed as a conclusive declaration that the claimant of the placer mine has no right to the possession of the vein or lode claim.

“It is this latter class of cases,” says Mr. Justice Miller, "to which the one before us belongs,” and it was held that the placer patent conferred no title, and that the mining company, which sought to recover possession in an action at law, could not succeed against the defendants who were working the lode, even though they were mere trespassers. The importance of this decision in the present case is that the effect of the placer patent was made to depend upon a matter resting purely in parol, as to whether or not at the time the application was made for the placer patent a lode or vein was known to exist within its bounds. The case is, therefore, authority for determining by the verdict of a jury in an action at law a fact resting purely upon parol evidence, and operating to limit the general language of the patent and to define the extent of the property conveyed.

Attorney-General v. Sooy Oyster Co.

78 N. J. L.

In Doolan v. Carr, 125 U. S. 618, Carr brought ejectment claiming title under a patent from the United States to the Central Pacific Railroad Company and a subsequent deed from the railroad company to himself. The defendants offered to show that this patent was void, to which the plaintiff objected upon the ground that the patent could not be collaterally attacked, that it could be attacked by bill in equity only, that it was conclusive evidence in the pending action that the legal title of the lands therein described was granted and transferred by the United States to the grantee named in the patent. The court sustained the objection, and on writ of error the judgment was reversed for this error. Mr. Justice Miller said:

“There is no question as to the principle that where the officers of the government have issued a patent in due form of law which, on its face, is sufficient to convey the title to the land described in it, such patent is to be treated as valid in actions at law as distinguished from suits in equity, subject, however, at all times, to the inquiry whether such officers had the lawful authority to make a conveyance of the title. But if those officers acted without authority, if the land which they purported to convey had never been within their control, or had been withdrawn from that control at the time they undertook to exercise such authority, then their act was void—void for want of power in them to act on the subject-matter of the patent, not merely voidable, in which latter case, if the circumstances justified such a decree, a direct proceeding with proper averments and evidence would be required to establish it was voidable, and should, therefore, be avoided. The distinction is a manifest one, although the circumstances that enter into it are not always easily defined. It is, nevertheless, a clear distinction established by law, and it has been often asserted in this court that even a patent from the government of the United States, issued with all the forms of law, may be shown to be void by extrinsic evidence, if it be such evidence as by its nature is capable of showing a want of authority for its issue.”

49 Vroom.

Attorney-General v. Sooy Oyster Co.

Mr. Justice Miller's opinion is valuable for the reason that it contains a review of prior decisions in point. It is true that he refused to decide how far parol evidence could be received in an action at law for the purpose of impeaching the patent, holding that the evidence in the case was entirely documentary. This could be true only in a qualified sense, since a part of the evidence was necessarily parol testimony to identify the land and the boundaries. Chief Justice Waite, in dissenting, expressly said that the ground of his dissent was not that in a proper case the validity of a patent of the United States for the conveyance of land might not be attacked in a suit at law by proving it was issued without the requisite authority, but that this is not a proper case for the application of that rule. He thought that such proof could only be made by one who held a right at law or in equity, which is prior in time to that of the patentee, or by one who claimed under the United States by a subsequent grant or some authorized recognition of title; but even on the view which he took, the State of New Jersey, in the present case, would have a right to prove the want of authority of the riparian commissioners to issue the patent in question.

In Iron Silver Mining Co. v. Campbell, 135 U. S. 286, the controversy arose in an action in the nature of ejectment between the owner of a patent for a placer mine and the owner of a patent for a lode within the boundaries of the land covered by the placer patent. The placer patent was prior in point of time, but the trial court held that it must be conclusively presumed from the fact that the lode patent had been subsequently issued that the facts necessary to make it a valid grant had been ascertained by the land office and could not be questioned in an action of ejectment. The essential fact was whether the existence of the lode was known to the patentees of the placer patent at the time they acquired the same, a fact resting purely in parol; but the Supreme Court of the United States held that the trial court was in error, and that, in order to sustain the validity of the lode patent, it was necessary for the claimant thereunder to establish the existence of the lode and the knowledge thereof

Attorney-General v. Sooy Oyster Co.

178 N. J. L.

by the patentee under the elder patent at the time he acquired the same.

It would be difficult to find a case where the validity of a patent rested more thoroughly upon the verdict of a jury rendered upon parol evidence as to a fact of which there could be no record. The case is also interesting because it distinguishes French v. Fyan, relied upon in the present case, upon the ground that in that case the secretary had certified that the lands in controversy were swamp lands. In the present case there is nothing to show whether or not the riparian commission considered the question whether the land in question was natural oyster beds.

The litigation in these cases of the Iron Silver Mining Company was important and prolonged, since it involved grants at Leadville. The matter came before the court again in Iron Silver Co. v. Mike & Starr Gold and Silver Mining Co., 143 U. S. 394, which was twice argued and held for mature consideration, the contention being that a known vein must be a located vein or lode, but it was held that this was not correct, and the matter was treated as a question of fact to be determined upon parol evidence by a jury. The importance of this case to the present lies in the fact that it shows clearly that lands may be reserved from sale by a general description, and that a specific description by metes and bounds is not necessary. Just as known lodes or veins were reserved from grant under a placer patent, leaving the fact that they were known as well as their exact boundaries to be determined by the verdict of a jury, so natural oyster beds are reserved from the riparian lands which the commissioners are authorized to convey.

In Davis v. Weibbold, 139 U. S. 507, which was an action for the possession of mining land, the plaintiff Weibbold claimed title under a patent for mineral land. The defence justified under a patent prior in date for a town site which, pursuant to law, exempted from the grant any mine of gold, silver, cinnabar or copper, and any valid mining claim or possession held under existing laws of congress. If the mineral rights claimed by the plaintiff were within this exception, his title was good, and it was sought to sustain it on the ground

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