usual conditions as to service thereof, etc., and has since matured. The case is stated in that decision.

The motion challenges the second or concluding division of the decision in question. Upon the merits of that portion of the case briefs have again been filed on behalf of the contending parties, and opposing counsel have again been heard in oral argument. For convenience and brevity the designation of the parties, The Clipper Mining Company and The Eli Mining and Land Company et al., as petitioner" and "respondents," respectively, observed in the decision under review, will be followed here.

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Complaining of that decision, counsel for respondents set out four assignments of error, the first being in part closely allied to the second and in part to the third and fourth, the latter two presenting in different aspects substantially the same question. From the sequence and arrangement of these assignments it will be convenient to depart somewhat.

The primary error, it is argued, lies in according any further recognition to petitioner's application for lode patent, and to petitioner thereunder, since the final judgment in the adverse suit between the parties. Counsel contend that by the legal effect of that judgment the right of petitioner to press its application or to receive patent under it has ceased; and they deny the jurisdiction of the land department to treat that application as now in any proper or legal sense before it.

It is conceded by them that when an adverse claimant who has prevailed in an action pursuant to section 2326, Revised Statutes, presents his judgment roll and asks for patent the land department may inquire as to his compliance with the law in respect of any matter aliunde and as to the character of the land involved, but it is insisted that all proceedings following the judgment are ex parte and that the defeated applicant can not thereafter properly be recog nized or heard as an actor upon the assumption that his former application has any further existence in fact or law or can be made the basis of any patent proceeding in his behalf. The basis for this conclusion, it is argued, is that the "right of possession," thus awarded to his adversary, is the foundation of and indispensable prerequisite to the paramount title under the mining laws.

Concerning the judgments which may be rendered by the courts the following extract from Lindley on Mines (2nd Ed., Vol. II, Sec. 765, p. 1370) is cited by counsel:

The trial of the action may result in one of four judgments: (a) in favor of plaintiff, the adverse claimant; (b) in favor of the defendant, the patent applicant; (c) adjudging that neither party has complied with the law; and (d) dividing the conflict area between the parties.

And with respect to the effect of a judgment in favor of the adverse claimant, who thereafter presents his judgment roll, etc., and

asks for patent to the tract in controversy, the following is cited (Ibid., p. 1373):

The Department will thereupon proceed to investigate the character of the land, the proofs submitted, and the compliance by the adverse claimant with the requirements of the law. So far as the premises thus applied for are involved, the former patent applicant is eliminated from the proceeding, and thereafter the matter rests between the government and the adverse claimant.

Counsel also repeat certain expressions in that treatise and in the case of Richmond Mining Co. e. Rose (114 U. S., 576) in recognition of the binding force of the judgment upon the land department, as well as an expression in the case of Alice Placer Mine (4 L. D., 314, 317), that "the judgment of the court ended the contest between the parties and determined the right of possession."

Passing to the consideration of these contentions, the Department recognizes and reaffirms to its fullest extent the general principle, so often declared by the courts and the Department, that "the question of the right of possession" as between contending mineral claimants is exclusively of judicial cognizance, and that the award of that right by a court of competent jurisdiction is binding upon the parties and the land department. In the final analysis, however, this principle has always in view the "right of possession" which is the essential basis of the legal title obtainable under the mining laws, as counsel for respondents affirm it to be. That the principle contemplates, as the subject of judicial disposition, a right of possession which shall thereafter be found by the land department, in the exercise of its jurisdiction, to be effective for patent purposes is manifest from the provisions of section 2326 whereunder the adjudged right may, upon submission of the judgment roll and "without giving further notice," be made the basis of the paramount title. See, in this connection, Gwillim v. Donnellan (115 U. S., 45, 50-1).

The court determines only the question of the right of possession as between the litigating parties-that one has acquired by virtue of his mining location a right of possession which entitles him to prevail against the other, or that neither has established such right. It can not by its judgment establish in either a right of possession of binding force and effect as against the United States, since the government is not a party to the suit and a right thus effective depends finally upon the character of the land involved. Perego . Dodge (163 U. S., 160, 168). In a judicial controversy pursuant to section 2326 the court necessarily takes for granted the mineral character of the land, upon which both parties rely and which is a question ultimately and exclusively within the jurisdiction of the land department. It must be considered, therefore, that the court assumes the right of possession which it awards to be such as may ripen into the legal title in accordance with the provisions of that section of the stat

utes a right of possession of mineral land, lode or placer as the case may be, within the meaning of the mining laws.

In the case at bar a lode applicant, the present petitioner, was confronted by placer claimants, the respondents. Relying wholly upon their placer location the latter prosecuted their adverse proceedings against the lode application, averring that no lodes were known to exist within the placer limits at the date of the placer location or had been discovered at the time the adverse proceedings were commenced, and opposing their claimed placer possessory right to petitioner's claimed lode possessory right. The court found "from the evidence that the Searl placer was duly located, as required by the law, in 1877" and that the prescribed annual labor had continuously been performed to the time of trial. The court also found that the lodes involved were discovered after the date of the placer location. Because of the invasion of the placer location, as valid in its inception and uninterruptedly maintained by performance of annual labor, the court awarded the right of possession not of the lodes or lode claims but of the ground in controversy, as part and parcel of the placer claim, to respondents. And only as incident to their placer location, upon which respondents stood solely and squarely before the court, could they take those lodes under the proceedings thus had.

With these considerations in view it follows that the integrity of the general principle is not assailed in the decision under review, as counsel contend. Under no circumstances can the land department undertake to determine the question of the right of possession as between opposing mineral claimants-that controversy must be heard in the courts. As before pointed out, however, there remains in every case for determination by the land department the force and effect of the right of possession (awarded by the court to one or the other) as against the United States. And in the process of this jurisdiction this case is distinguishable from the usual cases merely in the result which may follow the establishment of the non-placer character, for patent purposes, of the land embraced in the placer location, if that be the fact. This distinction, which the Department sought to make clear in the decision under review, rests upon the difference in origin of the possessory claims litigated before the court, arising out of locations of wholly unlike character, and which do not present the immediately antagonistic aspect of locations of the same species irrespective of the actual character of the land. The placer right of possession awarded to respondents would in the event suggested prove to fall short of that possessory right which is the essential basis of the legal title under the mining laws and within the court's contemplation in recognition of it in bar of petitioner's lode-patent application. Failing thus as a basis of title to the portion of the placer location in controversy, it would equally fail as a basis of title to

the lodes therein embraced. And, failing as an available basis of title to those lodes, it would fall short of that effective basic right essential to the foreclosure of any purely lode rights in the petitioner. In such a case, therefore, it can not be held that the unsuccessful litigant has been "eliminated from the proceeding" by the judgment of the

court.

Nothing inconsistent with these views is contained in the case of Richmond Mining Co. . Rose or of Alice Placer Mine, supra, cited by counsel, and in both of which judicial awards of the right of possession were considered. The first of these, pursuant to section 2326, was a controversy between lode claimants-the immediate effect of a judgment in such a case being clear-and involved principally the question of the right of the officers of the land department to resume active control of patent proceedings and issue patent thereunder during the pendency of the suit in court upon their own determination of a waiver of the adverse claim because of delay in the judicial proceedings. In the second case an applicant for placer patent had prevailed in court against an adverse lode claimant, who pressed no further claim, and the only question before the Department was as to the authority of your office to order a hearing, following the judgment of the court in the applicant's favor, to determine the placer character of the land. As was pointed out in the decision here under review, the Supreme Court of the United States, in its decision in this case and in considering the effect of the judgment below, had clearly in view the inseparable question of the character of the land as affecting the ultimate result and the recognition which might yet thereafter be accorded petitioner by the land department, as the language of that decision discloses.

As conclusive upon petitioner in the premises, and to support their contention that it was error to order a hearing upon the present record to determine the placer patentability of the land, since respondents' adverse claim had been recognized by the Department and by the courts and "was founded upon a placer mining location which the courts have declared was a valid location both in fact and in law," counsel cite the following expressions in the case of Belk v. Meagher (104 U. S., 279, 283, 284):

A mining claim perfected under the law is property in the highest sense of that term.

Hence a relocation on lands actually covered at the time by another valid and subsisting location is void; and this not only against the prior locator, but all the world, because the law allows no such thing to be done.

And in Gwillim . Donnellan (115 U. S., 45, 49) :

A valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of

a grant by the United States of the right of present and exclusive possession of the lands located. If, when one enters on land to make a location there is another location in full force, which entitles its owner to the exclusive possession of the land, the first location operates as bar to the second.

Coupled with a contention raised in this as in a preceding connection, that petitioner's patent application became defunct by reason of the judgment of the court and that it was error to treat it as a basis for the order for hearing, is the contention in this same behalf that inasmuch as the placer location has been adjudged to have been valid and subsisting at the date of the lode locations the latter, under the principle laid down by the Supreme Court as above, were wholly void and no rights thereunder could accrue to petitioner. Neither contention is tenable in the view taken by the Department. Certainly, those judicial expressions are not susceptible of reduction to a doctrine that a valid and subsisting mining location, however completely within all the provisions and requirements of the mining laws, constitutes an insuperable barrier to the acquisition by another of rights, present or prospective, under a subsequent location upon the same ground. If they were so susceptible, and could be taken in the literal sense which might be attached to them apart from the facts to which they were addressed, it would unavoidably follow that a junior locator of land embraced in a valid and subsisting location who should duly and regularly prosecute patent proceedings therefor and without opposition by way of an adverse claim would nevertheless take nothing by his proceedings, notwithstanding the statutory assumption in his behalf of the absence of an adverse claim; for it is axiomatic that no validity can be infused into a "void" thing. Obviously, the assumption which negatives the existence of adverse claims has its predicate in the proceedings upon the application for patent and is for their benefit.

The doctrine thus announced by the court, more especially in Belk e. Meagher, seems more or less generally to have been given an extreme or literal interpretation. Since its operation was not involved in either case, the court had no occasion to consider that significant provision of the mining laws which compels the arbitrary and indisputable assumption, in favor of an applicant under the requisite proceedings to secure mineral patent, of the absence of adverse claims when none has been filed, or its equivalent in the waiver of an adverse claim for failure to prosecute it, and whereunder valid and vested possessory rights under a senior location may be wholly avoided and become as if they had never been. The court itself has made it clear that the extreme or literal interpretation of the language quoted from the opinions in those cases, standing alone, can not be accepted. In the later case of Del Monte Mining Co. . Last Chance Mining Co. (171 U. S., 55), after referring to those cases as going no further than