
    [Sac. No. 922.
    Department Two.—
    November 4, 1903.]
    'DAVID PATERSON et al., Appellants, v. B. A. OGDEN et al., Respondents.
    Public Lands—Agricultural Patent—Character of Land—Adjudication —Collateral Attack by Mining Claimant—Action to Quiet Title.—A United States patent for agricultural land is an adjudication by a tribunal having jurisdiction that the lands were agricultural and not mineral in character, and a mining claimant who did not appear and protest or make any adverse claim against the issuance of the patent cannot collaterally attack the patent in an action to quiet his title to the mining claim against the patentee.
    Id.—Reservation in Patent—Construction—Eight to Mine.—A clause in an agricultural patent making it “subject to the right of a proprietor of a vein or lode to abstract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted, as provided by law,” if not void, is to be properly construed as only permitting the proprietor of a vein whose apex lies outside of the land, but which penetrates the land on its dip or downward course, to abstract and remove his ore therefrom. It does not confer a right to enter and mine upon the surface of the patented land.
    APPEAL from a judgment of the Superior Court of Tuolumne County and from an order denying a new trial. R. C. Rust, Judge.
    The facts are stated in the opinion of the court.
    F. W. Street, for Appellants.
    The appellants by their location, annual work, and expenditures had acquired a grant from the United States of the lands embraced within the Gem Mine, and the ground was not afterwards open to sale and patent, or subject to the disposal of the government. (Wirth v. Branson, 98 U. S. 121; Belle v. Meagher, 104 U. S. 279; Gwillim v. Donnellan, 115 U. S. 45; Noyes v. Mantle, 127 U. S. 348; Sullivan v. Iron Silver M. Co., 143 U. S. 431; Mery v. Brodt, 121 Cal. 332-335; Lindley on Mines, sec. 539.) Lands in which there are known mines are not subject to pre-emption or homestead entry. (U. S. Rev. Stats., secs. 2258, 2289; Deffeback v. Hawke, 115 U. S. 404; Burfenning v. Chicago Ry. Co., 163 U. S. 321-323.) The government having no title to the land included within the Gem Mine at the time of the issuance of the agricultural patent, including that mine, the patent was void to that extent, and may be collaterally attacked. (Durfee v. Plaisted, 38 Cal. 80; Thompson v. True, 48 Cal. 601; Edwards v. Rolley, 96 Cal. 408;
      Klauber v. Higgins, 117 Cal. 451-464; Cucamonga Fruit and Land Co. v. Moir, 83 Cal. 101; Dolan v. Carr, 125 U. S. 618, 624; Gerrard v. Silver Peak Min. Co., 82 Fed. 578-583.)
    J. P. O’Brien, for Respondents.
    All parties were bound to take notice of the application for the agricultural patent, of which public notice was given, and to file any adverse claims thereto. (Wight v. Dubois, 21 Fed. 695; Richards v. Wolfling, 98 Cal. 195.) The patent was a conclusive adjudication as to the character of the land patented, which is not open to contestation in any collateral proceeding. (Doll v. Meader, 16 Cal. 297; Gale v. Best, 78 Cal. 235;
       Irvine v. Tarbat, 105 Cal. 237; Dreyfus v. Badger, 108 Cal. 58; 1 Lindley on Mines, sec. 208, p. 253; Saunders v. La Purissima Gold Min. Co., 125 Cal. 159.) Merely by virtue of plaintiff’s location and option to purchase not exercised, the government did not part with its title. (Forbes v. Gracey, 94 U. S. 762; Black v. Elkhorn Min. Co., 163 U. S. 449.)
    
      
       31 Am. St. Rep. 234.
    
    
      
       12 Am. St. Rep. 44.
    
   McFARLAND, J.—

This is an action to quiet title to an alleged quartz-mining claim called the Gem Mine. Judgment was for defendants, and plaintiffs appeal from the judgment and from an order denying their motion for a new trial.

The contest is only about that part of the alleged Gem ' Mine which lies in the west half of the southwest quarter of section 3, township 2 north, range 14 east, M. D. M. On November 2, 1881, respondents’ predecessor in interest, John McNamee, made homestead entry as agricultural land at the United States land office at Stockton, California, of land which includes the west half of the southwest quarter above mentioned. On February 5, 1889, he commuted the said homestead entry to cash entry No. 9753, and paid the United States government therefor; and on November 24, 1890, the government issued to him a patent for said land. After the said homestead entry, and after the land had been returned by the United States surveyor-general as agricultural land, J. N. Paterson, appellants’ predecessor in interest, located what is called the Gem Mine. At the time when McNamee made his final proofs no protest or adverse claim was made by Paterson, or any other person.

It is well settled that issuance of a United States patent for land as agricultural in character is a judgment by a tribunal having jurisdiction that such is the character of the land, which cannot afterwards be collaterally attacked. (Gale v. Best, 78 Cal. 235, and Saunders v. La Purissima Gold Mining Co., 125 Cal. 159, and the authorities cited in those two cases; also, Richards v. Wolfling, 98 Cal. 195, and Wight v. Dubois, 21 Fed. 695.) The patent, therefore, conveyed the land to McNamee, and was an adverse adjudication of any asserted right of appellants’ grantor to the land as a mining claim. In the case at bar the patent to McNamee contained the following clause: “Subject to the right of a proprietor of a vein or lode to abstract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted as provided by law.” We have not been referred to any law authorizing the insertion of this clause; and it was held in Cowell v. Lammers (10 Saw. 246), 21 Fed. 200, that a reservation of mineral land in an agricultural patent is void. But waiving that question, the court below in the case at bar correctly construed the clause as only subjecting the patented land “to the right of the proprietor of a vein or lode, the top or apex of which lies outside of the west half of the southwest quarter of section 3 aforesaid, but which penetrates into the land on its dip or downward course, to abstract and remove his ore thereform as provided by law.” It does not give any right to enter and mine upon the surface within the patented lands. These views make it unnecessary to consider the express finding that at the time of the patent no part of the lands was “known valuable mineral land, but on the contrary all of the lands embraced within the west half of the southwest quarter of said section 3 were at that time, and now are, agricultural lands.”

In answer to the claim by appellants of title under the statute of limitations by adverse possession since the date of the patent, the court finds expressly that there was no such adverse possession; and the evidence is clearly sufficient to support that finding, irrespective of the further finding that appellants had not paid any of the taxes levied on any part of said land. The above views dispose of the controlling questions in the case adversely to appellants’ contention; and there are no other points necessary to be noticed.

The judgment and order appealed from are affirmed.

Lorigan, J., and Henshaw, J., concurred. 
      
       12 Am. St. Rep. 44.
      
     