The form of this action is one for the possession of real estate, situated in the town of Park City. The plaintiff claims title under the patent of the United States, and by mesne conveyances to the plaintiff from the patentee. No question is made as to the existence of the patent, or the title deraigned therefrom in plaintiff; but in this action at law, for the recovery of possession, the defendant seeks to assail that patent, on the following grounds:
First. The premises, in truth, did describe a part of section 16, and that, therefore, they were not ojien to settlement, and the plaintiff and his grantor had no right to patent the same, for the reason that it was a school section, and the authorities were forbidden to patent the same to settlers.
Second. That the said lands were mineral lands, and, therefore, not open to claims of settlers.
Third. That the lands were occupied by people squatted thereon, and claiming to be a city, to-wit: Park City.
We will determine these three objections in their order. The plaintiff procures his title under the scrip known as Yalentine scrip. The authority for the issuing of which is to be found under an act of Congress approved April 5, 1872, which authorizes the holders of such scrip to enter unappropriated lands of the United States, and *526tlie first question involves the inquiry as to wliat is the meaning of appropriated or unappropriated. It is complained by the appellant that lands which may possibly fall in section 16 or 86, although not then surveyed, are appropriated. On the other hand, it is contended that the only appropriation of the lands which fall within sections 36 and 16, is when they are surveyed and found to be such sections by official survey; and until such survey, the lands are open for any appropriator, and a person seeking to pre-empt or fto homestead on such lands has always to be recognized as one entitled to enter thereon, and his right has to be protected, although afterward the number of this section turned out to be 16 or 36. The Valentine scrip was not more limited. The holder of it had the right to enter upon any lands which had not been actually designated and set aside for the use of schools, or for the use of actual appropriates. These pre-emptors or people were not holding under home, stead claims. These lands had never been pre-empted or made subject to homestead claims, nor had they been surveyed at the time when this patent was applied for. If under any assumed state of circumstances a patent can be valid, then it cannot be attacked in any collateral proceeding or iu any manner except by direct action to set aside the deed indicated either by the United States, or the persons who have succeeded to its right. It is apparent that this patent not only could have been, but under the existing circumstances, was valid. It was.not in the power of the defendant or appellant to attack that patent in a court of law on tlie ground that it included school lands. The law upon this subject is fully stated in the case of Steel v. Smelting Co., 106 U. S., 454. “So with a patent for land of the United States, which is the result of the judgment upon the right of the patentee by that department of the government, to which the alienation of the public lands is confided, the remedy of the aggrieved party must bo sought by him in a court of equity if he possesses such an equitable right to the premises as would give him the title if the patent were out of tlie way. If he occupy with respect to tlie land no such position as this, he *527can only apply to tbe officers of tbe government to take measures in its name to vacate tbe patent or limit its operation. It cannot be vacated or limited in proceedings when it comes collaterally in question; it cannot be vacated or limited by tbe officers themselves.
Tlieir power over tbe land is ended wben tbe patent is issued and placed on tbe records of the department. The other cases cited on both sides are in conformity with this riding. Tbe determination of this first question decides tbe other also. If these premises .were mineral lands as claimed by tbe appellant, and tbe appellant bad any right therein, it was bis duty to have applied for a patent and assert bis right before tbe department. An adjudication of tbe department of tbe land office upon the subject is conclusive and final. It would be a strange doctrine, if after tbe United States Government has patented land away and minerals should be discovered in tbe lands, within bis patent or deed, that some outside discoverer could say tbe patent was void. Such was not the intention of tbe law. If it bad been true that any mineral entries bad been made at tbe land office at the time this patent was applied for, then such owners and tbe defendant among them, if he were one, must have bad notice of the procedure, and tbe law assumes and presumes be did have notice. If after inquiry tbe land office determined tbe plaintiff bad or his grantors bad, a right to a patent, that decision was binding upon tbe court. Tbe same result must follow if no inquiry was entered into. Tbe land office had jurisdiction in tbe matter; its determination was final.
Precisely the same views control tbe third point. Tbe defendant offers to prove that there were, at the time of tbe application of this Yalentine scrip to tbe premises in question, a few hundred squatters within tbe land conveyed. Those squatters bad taken no measures or steps to procure title under tbe towm site law, filed no papers in any tribunal entitling them to actas such. If it was desired and within tbe law to plat a towm site entry they bad ample opportunity. Until they did so they were trespassers, and tbe lands were unappropriated, and it was open for tbe gov-*528eminent to eject them: Yosemite Case, 15 Wall., 77. Until suoli act on the part of squatters, any person having the authority of the United States Government could deed the same. The grantor of the plaintiff holding the Valentine scrip had the authority of the United States Government. These lands at the time had been unappropriated in every sense of the term. They had not been even surveyed, and until they were surveyed no appropriation whatsoever had been made of them. The court concurs in the findings and the opinion of the court below.
Zane, C. J., and Twiss, J., concurred.