Samuel Freeman Miller

“ It is this ex parte proceeding which is supposed to bind the claimants under the Moyer patent conclusively and forever in regard to their knowledge of the existence of this Sierra Nevada lode at the time they made application for their patent within its limits. We are not ignorant of the many decisions by which it has been held that the rulings of the land-officers in regard to the facts on which patents for land are issued are decisive in actions at law, and that such patents can only be impeached in regard to those facts by a suit in chancery brought to set the grant aside. ”

“ The proceedings in the land department for securing title to government lands are usually exparte. There is no general provision of law which requires a party who can make the necessary proofs, which on their face entitle him to purchase land from the government, to call any individual as a contestant, or to notify other parties interested in the matter that he is about to proceed. Each one proceeds in his own manner, and establishes his own claim ”

“ Why should not the same kind of testimony, subjected to cross-examination, be competent, when the issue is made in a court of justice, to show that they are swamp and overflowed, and so excluded from the grant under which plaintiff claims,-a grant which was also a gratuity? The matter to be shown is one of observation and examination ”

“ The only thing of any consequence in the bill of exceptions, containing a considerable amount of oral testimony, almost every word of which is objected tob y one party or the other, is the two patents under which the adverse parties claim title. From this and the finding of facts it appears that the patent under which the Iron Silver Mining Company claims was issued to William Moyer on his application, made in the proper land-office, on the 13th of November, 1878, and bears date January 30, 1880, and that the one under which plaintiffs below claim bears date March 15, 1883. ”

“ It is conceded that both patents cover the land in controversy. The Moyer patent, being the elder, is for 56 acres of placer mining land. The plaintiffs' patent, though of a later date, is for a vein or lode of mineral deposit which runs under the surface of the ground covered by defendant's patent. ”