In a suit brought by a District Attorney of the United States to
set aside a patent conveying public lands, objection was taken in
this Court that it does not sufficiently appear that the suit was
brought under authority from the Attorney General. Held
that, the objection not having been taken below, the fact of such
authority could be inquired into and shown here.
On the evidence, it appeared that the lands in question were
mineral lands, and were known to be such by the applicant for the
patent, and agent for the railroad company at the time of the
application. The patent was set aside.
The bill was filed in the court below in February, 1887. Hearing
was had on the evidence, and in June, 1878, a decree was rendered
setting aside the letter patent as "issued by mistake and without
authority of law." The bill did not disclose any authority from the
Attorney General to bring the suit, nor was such authority shown in
the court below, nor was any objection taken for the want of the
averment or the proof of such authority. The controversy below,
upon the facts, was in regard to the character of the lands,
whether mineral or not, and, upon the law, in regard to the effect
of the acts of the agents of the United States upon the patentee's
title. The defendants below appealed from the decree.
MR. JUSTICE MILLER delivered the opinion of the Court.
John M. Coghlan, District Attorney of the United States for the
District of California, on behalf of the United States, brought the
bill in this case in the circuit court of that district against the
Western Pacific Railroad Company and Charles McLaughlin to set
aside a patent of the United States conveying to the railroad
company the northeastern quarter of section 29, township one (1)
north, range one (1) east, of Mount Diabolo meridian.
This patent was made under the acts of Congress granting
Page 108 U. S. 512
lands to the Union Pacific, Central Pacific, and Western Pacific
Railroad Companies, to aid in building a road from the Missouri
River to the Pacific Ocean.
The acts of Congress granted to each company the alternate
sections within certain limits on each side of its road, and
authorized the issue of patents for the same when the work was done
and the sections ascertained. But they excepted out of this grant,
among others, such sections or parts of sections as were mineral
The bill in this case alleges, as the reason for vacating and
setting aside the patent, that the quarter-section in question is
mineral land, that it was so at the time of the grant, and was
known to be so when the patent was issued, which was so issued
without authority of law by inadvertence and mistake.
The patent itself is not in the record as an exhibit, or as part
of the evidence. The Western Pacific Railroad Company, to whom it
was issued, though made defendant in the bill, was not served with
the subpoena and did not appear. McLaughlin, the only defendant who
did appear, defends as purchaser two degrees removed from the
company. Instead of a general replication to McLaughlin's answer,
the reply is an amendment to the original bill.
The whole record is so imperfect and the case so obscuredy
presented, that we feel tempted to dismiss it.
Waiving, however, these objections, there is enough to enable us
to consider the two principal errors assigned by appellant.
The first of these is that there is no sufficient evidence that
the suit was instituted under the authority of the Attorney
General, according to the principle established in the case of
United States v. Throckmorton, 98 U. S.
To this it may be answered that the objection was not raised in
this case in the court below, as it was in that; that the case is
argued in this Court on behalf of the government by the Assistant
Attorney General, who files in the court, a certified copy of the
order of the Attorney General directing the district attorney to
bring the suit in the circuit court, as requested by the Secretary
of the Interior.
We think the decree of that court, under these
Page 108 U. S. 513
can hardly be reversed now, on this ground, taken here for the
The other objection to the decree in favor of the United States
is that the evidence does not establish as a fact that the land in
controversy was mineral land when the patent issued.
An examination of the evidence on this subject convinces us that
the circuit judge was right in holding that it was. It is
satisfactorily proven, as we think, that cinnabar, the mineral
which carries quicksilver, was found there as early as 1863, that a
man named Powell resided on the land and mined this cinnabar at
that time, and in 1866 established some form of reduction works
there; that these were on the ground when application for the
patent was made by defendant McLaughlin, as agent of the Western
Pacific Railroad Company, and that these facts were known to him.
He is not therefore an innocent purchaser. Concurring as we do with
the circuit court in the result arising from the evidence, we do
not deem it necessary to give in this opinion a detailed
examination of it.
This being the first case of the kind in this Court, a class of
cases which may possibly be indefinitely multiplied, it is to be
regretted that it was not more fully presented in the circuit
court. Many interesting questions might arise in this class of
cases not proper to be considered in this case. For instance, the
nature and extent of mineral found in the land granted or patented
which will bring it within the designation of mineral land in the
various acts of Congress, in which it is excepted out of grants to
railroad companies and forbidden to be sold or preempted as
ordinary or agricultural lands are.
Suppose that when such land has been conveyed by the government
it is afterwards discovered that it contains valuable deposits of
the precious metals, unknown to the patentee or to the officers of
the government at the time of the conveyance, will such subsequent
discovery enable the government to sustain a suit to set aside the
patent or the grant? If so, what are the rights of the innocent
purchasers from the grantee, and what limitations exist upon the
exercise of the government's right? We can answer none of these
questions here, and can only
Order that the decree below be affirmed.