Plaintiff made application to the government of the United States in the year 1876 for a mineral patent to the Comet mining claim. The matter was suffered to remain without any further proceedings until the month of March, 1888. In the meantime, and during the month of January, 1887, defendants relocated a portion of the ground under the name of the "Phœnix Claim." Thereafter, and without any further notice, save such as may have been contained in the original notice of its application, a patent was issued to the plaintiff in the month of March, 1888.
Defendants, in their answer, allege that the patent was procured by false swearing and perjury on the part of plaintiff's witnesses in making the final proof of labor done and improvements made before the register and receiver. This fact, coupled with a strict compliance with the mining laws on their part, and an abandonment by plaintiff, entitles the defendants, it is claimed, to a decree in their favor as equitable owners of so much of the mining claim as conflicts with their claim.
Congress has provided the manner in which the government title to the mineral lands may be acquired. Section 2318, Rev. Stats., declares that "in all cases, lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law." Section 2325: "Any person who has complied with all the requirements of the law may file in the proper land office an application for patent under oath showing such compliance, together with other matters required by the statute, but unnecessary to be mentioned here. Upon the filing of the application and such other papers as the statute directs, the register of the land office is required to publish a notice that the application has been made, for the period of sixty days, in some newspaper to be by him designated, as published nearest to the claim, and he must also post a similar notice for the same time in his own office. If no adverse claim shall have been filed with the register and receiver of the proper land office at the expiration of the sixty days of publication it shall be assumed that the applicant is entitled to a patent upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third persons *Page 38 to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter." Section 2326: "It shall be the duty of the adverse `claimant, within the thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment, and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the surveyor-general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the commissioner of the general land office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightfully possess. If it appears, from the decision of the court, that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor-general, whereupon the register shall certify the proceedings and judgment roll to the commissioner of the general land office, as in the preceding case, and patents shall issue to the several parties according to their respective rights."
No title from the government to the mineral lands can be acquired in any other way than as prescribed by this statute. The parties claim by separate rights. No fiduciary relation exists between them, and no protest was made against the issuance of the plaintiff's patent. If the plaintiff has acquired the title contrary to the terms of the statute, the facts can be shown, and the patent annulled in a proper proceeding. Relief in such cases is expressly provided in section 2325 of the foregoing act. But until the patent has been got out of the way, and proceedings instituted to determine the validity *Page 39 of the title of the defendants, no relief upon this part of the case can be afforded them.
It does not follow that the defendants are entitled to the patent, conceding all of the allegations in their answer to be true. According to it, the plaintiff has failed to comply with the terms of the statute in the matter of expenditures required (Rev. Stats., sec. 2324), and the patent for this cause may be annulled. But the defendants are not in a position to acquire the government title. They are neither applicants for patent nor protestants under the statute. They have not complied with the requirements of the foregoing statute in that regard, and submitted their claim to adjudication, and in a court of competent jurisdiction, and had their rights ascertained and determined. The statute is not restrictive in its operation, as the defendants appear to have assumed, but all claimants to the ground in question are embraced in its provisions, and are required to present their claims for adjudication in the local courts; and a failure to do so will be a waiver of the adverse claim. It follows, upon the facts presented, that the patent cannot be attacked in this proceeding.
Upon the question of the statutes of limitations, I am of opinion that two years is the time fixed for such actions.