by a portion of the residents in Park City; that houses were situated upon it in which people were living; and that the same were in such proximity as to constitute a portion. of the town. The mineral characteristics of the land the defendant proposed to show by persons familiar with mineral lands, and that there were such prospects upon it.

In the case of Smelting Co. v. Kemp, the court said, speaking of the effect of the action of the officers of the land department of the United States: "In the course of their duty the officers of that department are constantly called upon to hear the testimony as to matters presented for their consideration, and to pass upon its competency, credibility, and weight. In that respect they exercise a judicial function, and therefore it has been held in various instances by this court that their judgment, as to matters of fact properly determined by them, is conclusive, when brought to notice in a collateral proceeding. Their judgment in such cases is, like that of other special tribunals upon matters within their exclusive jurisdiction, unassailable except by a direct proceeding for its correction or annulment." Further along, in the same opinion, the court said, speaking of the presumptions attending the issuance of a patent: "If in issuing a patent its officers took mistaken views of the law, or drew erroneous conclusions from the evidence, or acted from imperfect views of their duty, or even from corrupt motives, a court of law can afford no remedy to a party alleging that he is thereby aggrieved. He must resort to a court of equity for relief, and even there his complaint cannot be heard unless he connect himself with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent; and he must possess such equities as will control the legal title in the patentee's hands:" Smelting Co. v. Kemp, 104 U. S., 636.

In the case of Steel v. Smelling Co., 106 U. S., 447, referring to the land department of the United States, the court said: "That department, as we have repeatedly said, was established to supervise the various proceedings whereby a conveyance of the title from the United States to portions of the public domain is obtained, and to see

that the requirements of different acts of Congress are fully complied with. Necessarily, therefore, it must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the land, and whether it is of the class which is open to sale. Its judgment upon these matters is that of a special tribunal, and is unassailable, except by direct proceedings for its annulment or limitation. Such has been the uniform language of this court in repeated decisions.”

The respondent cited the case of Morton v. Nebraska, 21 Wall., 660. In that case the plaintiff claimed from the United States title to 320 acres of salt lands situated in Nebraska, under locations of military county land warrants, upon which patents had been issued. The state based its title on an alleged grant from the United States by virtue of certain statutes reserving salt springs and salines for the use of the state. In its opinion the court attached importance to the fact that the lands had been surveyed before location, and the salines noted on the field books, though the notations were not transferred to the register's general plats; and also to the fact that their saline character was palpable to the eye. The court remarked that "they resembled snow-covered lakes." The notes on the field books, and the saline on their surface, indicated their boundaries. They could be thereby identified. If so, the title passed to Nebraska before the plaintiff's location, and therefore the patents must have been void.

U. S. v. Carpenter was a suit in equity to vacate a patent of the United States issued to one August Chienson to a quarter section of land, a part of the Red Pipestone quarry, in the county of Pipestone, in the state of Minnesota. The court held that, by treaty between the United States and the Yankton tribe of Sioux or Dacotah Indians, the whole of the reservation, embracing the quarry, was withdrawn from private entry or appropriation at the time of the location, and that the entry was therefore void. This reservation was bounded and recognized: U. S. v. Carpenter, 111 U. S., 347.

The decisions of the supreme court of the United States

establish the following propositions of law: First. That the various acts of Congress mentioned reserving portions of the public lands of the United States to the territories or states for the benefit of their people, vest the title of such lands so reserved in the territories or states when the lands are surveyed, or when they are bounded and ascertained. Until such time the obligation is executory, and the title remains in the federal government. Second. If the officers of the land department had no authority to issue the patent, for the reason that there was no law authorizing the sale of the land, or that it had been reserved from sale (being identified), or that the title was not in the United States, the patent is void. Third. As to all questions of fact which the land department is called upon to consider and pass upon before issuing the patent, the judgment of that department is unassailable, except in a direct proceeding for its annulment. Fourth. Among the questions the land department is called upon to consider is the character of the land, and the class to which it belongs, whether agricultural or mineral, or whether it is within a town-site. Fifth. If the land department had jurisdiction, the law conclusively presumes, in a collateral proceeding, the existence of all circumstances essential to the validity of the patent. Unless the patent is void, in view of the law, or the circumstances which the court may take judicial notice of, it must be held valid. All other essential circumstances must be presumed to have existed.

The views expressed in this opinion find support in the following cases, as well as in those above referred to: Johnson v. Towsley, 13 Wall., 72; Polk's Lessee v. Wendal, 9 Cranch, 87; Wilcox. v. Jackson, 13 Pet., 498.

Upon a careful consideration of the whole case, we find
The judgment of the court below is therefore

no error.

affirmed.

POWERS, J., concurred. BOREMAN, J., having been of counsel, took no part in the decision of this case.

INDEX.