For these reasons, we do not believe that these sections, 2325 and 2326, are intended to apply to the case of a party who has a prior patent for the land which may be the subject of controversy before the register and receiver of the land office. Is it fair and just that the party who has gone through all the processes which the laws of the United States require of him to obtain title to its lands, and has obtained that title, shall be subjected by the officers of the Government of the United States to defend that title before them from the attacks of an outsider?

We have more than once held that, when the Government has issued and delivered its patent for lands of the United States, the control of the department over the title to such land has ceased, and the only way in which the title can be impeached is by a bill in chancery; and we do not believe that, as a general rule, the man who has obtained a patent from the Government can be called to answer in regard to that patent before the officers of the land department of the Government: U. S. v. Schurz, 102 U. S. 378.

For these reasons, we are of opinion that the Circuit Court, in refusing to consider the testimony found in the case in regard to the known existence of the vein of the Sierra Nevada claim at the time of the application for the Moyer patent, was in error, and also that it was erroneous to hold that, on the face of the patent for the Sierra Nevada mine, the existence of this vein, and the knowledge of its existence, were to be conclusively presumed in this action. The judgment is reversed, and the case is remanded to the Circuit Court with a direction to grant a new trial.

Mr. JUSTICE BREWER, with whom the CHIEF JUSTICE concurred, dissenting: I am unable to agree with the opinion of the court delivered by Mr. Justice MILLER.

A placer patent, and the statute under which it is issued, expressly provide that it shall not include any known lode or vein. So if, within the limits of placer ground, there be a vein or lode bearing gold or other mineral of precious value, and that vein or lode was known at the time of the application for the placer patent, it did not pass under the patent. It was as much excepted from its terms as though it were in an adjoining State. It was territory carved out by the

very language of the patent and the statute, and, not passing to the patentee, remained the property of the Government, and subject to location and patent as fully, and in the same manner and upon the same terms, as any other mineral vein. Suppose a patent for agricultural lands, by virtue of the statute, excepted all lakes, ponds, and other bodies of water. Who would doubt that the title to any lake or pond within the territory described in such patent remained in the Government, and subject to sale by it in any manner it deemed best, or that a title thereto obtained, in the manner prescribed by law, was paramount? So here. There is only one way and one tribunal provided for obtaining title to any vein or lode, whether within or without the limits of placer ground, and that is by application in the land office. That way was pursued in this case, and a patent obtained. Whether this lode or vein was or was not within the limits of the placer patent depends upon no matter of law, but upon two questions of fact: First, Was there a vein bearing gold or other precious mineral within the limits of the placer territory; and, second, Was it known at the time of the application for the placer patent. These two questions of fact determine the question whether the placer patent took the whole surface ground, and all veins and lodes within its territory. Provision is made by statute for putting such questions of fact in issue. The adverse proceedings prescribed by statute are of common occurrence. It is the ordinary procedure. We have had cases involving such procedure before us this term. But I fear that this decision is equivalent to holding that such statutory adverse proceedings amount to nothing, and are unworthy of notice. From Johnson v. Towsley, 13 Wall. 72, to the present time, the uniform ruling of this court has been that questions of fact passed upon by the land department are conclusively determined, and that only questions of law can be brought into court.

The right to this patent depends solely upon these two questions of fact, which were considered by the land office when the original patent was issued. I think that its determination upon them was conclusive.

I am authorized by the Chief Justice to say that he concurs in these views.

1. Pleading known lode in placer. Sullivan v. Iron Co., 109 U. S. 5502. The reservation in a patent of lodes known to exist is valid and no title vests in the patentee as to such lodes. Clary v. Hazlitt, 67 Cal. 286, 3. Placer claimants own lodes afterward discovered. Montana Co.

v. Dahl, 6 Mont. 131; Raunheim v. Dahl, Id. 167.

4.

Failure to mark boundaries invalidates location, Anthony v. Jillson, 16 M. R. 26.

5. Courts will not enforce a contract providing for the use of names of nominal locators taking up land in excess of the legal location. Mitchell v. Cline, 24 Pac. 164.

6. A lode may be known to exist and so be excepted, though it has not been located according to law, Iron Silver Co. v. Mike & Starr Co., 12 S. C. Rep. 543.

7. The lode must be known to exist at the date of application for patent and not merely at the date of the patent. Id.

8. The knowledge must be that of the applicant; but he is chargeable with matters of notoriety, or such as are apparent from an examination of the ground. Id.

9. An applicant must be held to know of the existence of veins plainly disclosed in a long tunnel under the claim. Id.

10. A known lode, to be excepted, must be clearly ascertained and of value to justify its exploitation, and the question of such value is for the jury. Id.

FRANK MORITZ, Respondent, v. A. LAVELLE, Appellant.

(77 California, 10; 18 Pac. 803; 11 Amer. St. Rep. 229. Supreme Court, 1888.)

Verbal agreement enforced. Plaintiff outfitted defendant to relocate an abandoned mine. The relocation was made in defendant's name, with verbal agreement to transfer one-half to plaintiff in pursuance of the original understanding. Held, that such contract was not within the statute of frauds and was enforcible.

Averment of citizenship. In complaint to enforce the trust in such a case the plaintiff is not bound to allege his citizenship.

Pleading conditions performed. The general allegation that plaintiff has performed all and singular his agreement and covenants with defendant is a sufficient averment of the performance of conditions precedent.

In bank; appeal from Superior Court, Tulare County; WILLIAM W. CROSS, Judge.

Action by Frank Moritz against A. Lavelle for specific performance of contract. Judgment for plaintiff, and defendant appealed.

W. A. GRAY and OREGON SANDERS, for appellant.

W. B. WALLACE, for respondent.

PATERSON, J.

The plaintiff and defendant entered into a verbal agreement to occupy and relocate a mine in Tulare County for their joint use and benefit. The plaintiff promised to pay all the expenses of the defendant, and furnish him with an outfit necessary to make the trip from Calaveras County to Tulare County, and to make the necessary examination of the mine; to pay the defendant's board for a certain time, and furnish him with provisions, clothing, and blankets. It was agreed that if the mine had been abandoned, the plaintiff should join the defendant at the mine, and assist in working the same. Pursuant to the agreement, the plaintiff furnished the defendant with all he had promised to furnish him. The 1 Treat v. Hiles, 32 N. W. 517.

defendant visited the mine, found that it was abandoned, notified the plaintiff of the fact, and the plaintiff joined him thereafter at the mine. The parties staked off the mine, erected the necessary monuments, completed the relocation of the mine by placing notices of relocation thereon, as required by law. These notices were signed by the defendant alone as locator, and by plaintiff as a witness, with the express oral agreement between them that, in consideration of the agreement which we have referred to, the defendant would transfer and deed to the plaintiff the undivided one-half interest in and to the mine. The parties thereafter commenced working the mine, and the plaintiff demanded a transfer to him of the undivided one-half interest which the defendant had promised to convey. The defendant refused to make a conveyance of any interest, and denied that plaintiff owned any interest therein, and forcibly expelled him from the mine. The court below gave judgment for the plaintiff, as prayed for, namely, that defendant execute and deliver to the plaintiff a deed transferring the undivided one-half interest in and to the mine.

It is claimed that there having been no agreement in writing, and no such part performance as will take the case out of the statute of frauds, the contract can not be enforced. But the statute of frauds has no application in cases of this kind. In Gore v. McBrayer, 18 Cal. 582, Gore, McBrayer and others entered into an oral agreement to prospect for quartz. The court there held that the statute of frauds, which requires an instrument in writing to create an interest in land, does not apply to the taking up of mining claims. In Settembre v. Putnam, 30 Cal. 490, it was held that where mining partners, under a verbal agreement, claim and develop a lode upon the land of another, and authorize one of their number to buy the claim for the benefit of all, and he procures a deed in his own name, he holds the legal title to the interest of his partners in trust for them. See, also, Sandfoss v. Jones, 35 Cal. 487; Hirbour v. Reeding, 3 Mont. 13; Murley v. Ennis, 2 Colo. 300; Welland v. Huber, 8 Nev.

203.

It was not necessary for the plaintiff to allege citizenship in his complaint: Thompson v. Spray, 14 Pac. Rep. 182.