Garrard v. Silver Peak Mines

HAWLEY, District Judge (orally). 1. The plaintiff’s title to the land described in the complaint rests upon the validity of the patent from the state of Nevada to Alexander Morrison, dated May 32, 1891, and the deed from Morrison to the plaintiff, executed June 29, 1891. The defendant introduced testimony tending to support the various allegations of its answer, which, if admissible, was — 583 — claimed to be sufficient to invalidate the jdamtiffs patent, and entitle it to tbe judgment. This testimony was admitted for the conderation of the court, subject to the objections of plaintiff. The contention of plaintiff is that all the testimony which tended to invalidate the patent was inadmissible; that in an action at law a patent cannot be collaterally attacked. This general rule is well settled, but there are also certain exceptions to the general rule that are as well settled as the rule itself. The difficult question to determine is whether the case comes within the general rule, or belongs to the class of cases which are excepted from the rule. A vast number of authorities have been cited by the respective counsel, all of which have been carefully examined, as well as many others which shed more or less light upon this subject. There is a dear distinction between the two lines of cases, although it is not always easy to ascertain from the particular facts within which line the case falls. In Doolan v. Carr, 125 U. S. 618, 624, 8 Sup. Ct. 1231, the court, in discussing this question, said: “There is no question as to the principle that where the officers oí the government have issued a patent in due form of law, which on its face is sufficient to convey the title to the land described in it, such patent is to be treated as valid in actions at law, as distinguished from suits in equity, subject, however, at all times to the inquiry whether such officers hail the lawful authority to make a conveyance of the title. But if those officers acted without, authority, if the land which they purported to convey had never been within their control. or had been withdrawn from that control at the time they undertook to exercise sueli authority, then their act was void, — void for want of power m them to act on the subject-matter of the patent, not merely voidable, in which latter case, if the circumstances justilied such a decree, a direct proceeding, with proper averments 'and evidence, would be required to establish that it was voidable, and should therefore be avoided. The distinction is a manifest one. although the circumstances that enter into it are not always easily defined. It is nevertheless a clear distinction, established by law, and it has been often asserted in this court, that even a, patent from the government of the United States, issued with all ilie forms of law, may be shown to be void by extrinsic evidence, if it be such evidence as by its nature is capable of showing a want of authority for its issue. The decisions of this court on this subject are so full and decisive that a reference lo a few of them is all that is necessary: Polk v. Wendall, 9 Cranch, 87; New Orleans v. U. S., 10 Pet. 662, 730; Wilcox v. Jackson. 13 Pet. 498; Stoddard v. Chambers, 2 How. 284, 317; Easton v. Salisbury, 21 How. 426, 428; Reichart v. Felps, 6 Wall. 160; Best v. Polk, 18 Wall. 112, 117; Leavenworth Railroad v. U. S., 92 U. S. 733; Newhall v. Sanger, 92 U. S. 761; Sherman v. Buick, 93 U. S. 209; Smelting Co. v. Kemp, 104 U. S. 636: Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ct. 389; Railway Co. v. Dunmeyer, 113 U. S. 629, 642, 5 Sup. Ct. 566; Reynolds v. Mining Co., 116 U. S. 687, 6 Sup. Ct. 601.” In Burfenning v. Raiload Co., 163 U. S. 321, 323, 16 Sup. Ct. 1019, the court said: “It has undoubtedly been affirmed over and over again that, in the administration of the public-land system of the United States, questions of fact are for the consideration and judgment of the laud department, and that its judgment thereon is final. Whether, for instance, a certain tract is swamp land or not, saline land or not, mineral land or not, presents a question of fact not resting on record, dependent on oral testimony; and it cannot be doubted that the decision of the land department, one way or the other, in reference to these questions is conclusive, and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be re-examined. Johnson v. Towsley, 13 Wall. 72; Smelting Co. v. Kemp, 104 U. S. 636; Steel — 584 — v. Refining Co., 106 U. S. 447, 1 Sup. Ct. 389; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985; Heath v. Wallace, 138 U. S. 573, 11 Sup. Ct. 380; McCormick v. Hayes, 159. U. S. 332, 16 Sup. Ct. 37. But it is also equally true that when by act of congress a tract of land has been reserved from homestead and pre-emption, or dedicated to any special purpose, proceedings in the land department in defiance of such reservation or dedication, although culminating in a patent, transfer no title, and may be challenged in an action at law. In other words, the action of the land department cannot override the expressed will of congress, or convey away public lands in disregard or defiance thereof. Smelting Co. v. Kemp, 104 U. S. 636, 646; Wright v. Roseberry, 121 U. S. 488, 519, 7 Sup. Ct. 985; Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228; Davis’ Adm’r v. Weibbold, 139 U. S. 507, 529, 11 Sup. Ct. 628; Knight v. Association, 142 U. S. 161, 12 Sup. Ct. 258.” These cases sufficiently indicate, in general terms, the line of distinction which should always be observed and followed by the courts; the question being always dependent upon the peculiar facts of each particular case. I have had occasion in numerous cases, under a great variety of facts, to consider the question in many of its different phases, and to make the application under the rules above stated. Heydenfeldt v. Mining Co., 10 Nev. 290, 308, affirmed 93 U. S. 634; Rose v. Mining Co., 17 Nev. 25, 64, 27 Pac. 1105, affirmed 114 U. S. 576, 581, 5 Sup. Ct. 1055; Whitney v. Taylor, 45 Fed. 616, affirmed 158 U. S. 85, 88, 15 Sup. Ct. 796; Lakin v. Dolly, 53 Fed. 333, 336, affirmed 4 C. C. A. 438, 54 Fed. 461. 2. Was the 40-acre tract selected by Morrison, at the time the selection was made, unappropriated, nonmineral, public land? If it were, the state had no authority, under the law, to issue a patent therefor. The evidence shows that prior to the selection of this land by Morrison the government of the United gtates had issued a patent to the defendant’s grantors for 4.97 acres as a mill site; and the defendant, at the time of the selection of the 40-acre tract and the issuance of the patent to Morrison by the state, and at the time of plaintiff’s purchase; was in the actual possession of the mill site, and had erected thereon a 30-stamp quartz mill, and made other valuable improvements thereon. These facts were well known by the plaintiff at the time he procured the deed from Morrison. He relies, however, upon a mistake in one of the courses described in the United gtates patent, which, literally followed, without reference to the buildings and monuments mentioned in the patent, would place the land for the mill site in section 15 instead of in section 22; but, if you take the buildings and monuments referred to in the patent as found upon the ground, the land for the mill site described in the United gtates patent is in section 22, upon the land claimed by plaintiff. This is made absolutely clear by the testimony of Mr. L. F. J. Wrinkle, a surveyor called by the. plaintiff, who, after describing certain surveys made by' him, testified as follows: “If you will allow me to explain, I will explain, to my mind, at least. The question was presented to me whether this mill site lies; according to the calls of the patent and. other United States maps, in section 15 or section 22. Now, if you take the call of the patent in connection with the United States map alone, it will place it in section 15; but if you go upon the ground, and supplement the knowledge in the patent, or rather, substitute what you get in the patent by knowledge you acquire on the ground, it will place it in section 22.” — 585 — The law is well settled that courses and distances must always yield to natural and well-defined and easily ascertained objects and monuments. The general principle is clearly expressed in Tyler, Ej. 569: “What is most material and most certain in a description shall prevail over that which is less material and less certain. Thus, course' and distance shall yield to natural and ascertained objects, as a river, a stream, a spring, or a marked tree. Indeed, it seems to he a universal rule that course and distance yield to natural, visible, and ascertained objects. Newsom v. Pryor’s Lessee, 7 Wheat. 10; Preston v. Bowmar, 6 Wheat. 582; Jackson v. Camp, 1 Cow. 605; Doe v. Thompson, 5 Cow. 371; Jackson v. Moore, 6 Cow. 706. And a false or mistaken particular in a conveyance may be rejected when there are definite and certain particulars sufficient to locale the grant. But, prima facie, a fixed, visible monument can never he rejected as false or mistaken, in favor of mere course and distance, as the starting- point, when there is nothing else in the terms of the grant to control and override the fixed and visible call. The general rule that courses and distances must yield to natural or artificial monuments or objects is upon the legal presumption that all grants and conveyances are made with reference to an actual view of the premises by the parties thereto. Raynor v. Timerson, 16 Barb. 518.” See, also, Book v. Mining Co.. 58 Fed. 106, 115; Higueras v. U. S., 5 Wall. 827, 835; Adair v. White, 85 Cal. 313, 24 Pac. 663; Anderson v. Richardson. 92 Cal. 623, 28 Pac. 679; Stoll v. Beecher, 94 Cal. 1, 29 Pac. 327; Kanne v. Otty, 25 Or. 531, 36 Pac. 537; Robinson v. Laurer, 27 Or. 315, 40 Pac. 1012; Greer v. Squire, 9 Wash. 359, 37 Pac. 545; Richwine v. Jones, 140 Ind. 289, 39 N. E. 460; McCullough v. Improvement Co., 48 N. J. Eq. 170, 21 Atl. 481; Thompson v. Harris. 40 Neb. 230, 58 N. W. 712; Peterson v. Skjelver, 43 Neb. 663, 666, 62 N. W. 43; Pitman v. Nunnelly (Ky.) 32 S. W. 606. The mistake in the present ease was not of such a character as could he taken advantage- of by (he plaintiff or his grantor. There was no mistake in making the survey of the mill site. There wits simply a clerical mistake made, in the entry of the United Stales deputy mineral surveyor in his field notes as to one course, — 84° west; but the north comer of the mill site, and the southeast corner of the stone office, and the place where post 1 of the survey is found and designated in the field notes and other reference in the patent, show very clearly what land was really included in the mill site, viz. the land upon which the company’s mill was then situated, in section 22. In Washington & I. R. Co. v. Cœur D’Alene Ry. & Nav. Co., 160 U. S. 77, 96, 16 Sup. Ct. 231, there was a controversy between two railroad companies over a right of way claimed by both companies. It appears that the Cœur D’Alene Company made a survey of three different lines as to the route* of its road; that on the 9th day of November, 1886, ten days after the completion of the survey of the three lines, A, B, and C, the company filed in the United States land office a map and profile, which were, on December 3, 1886, approved by thv secretary of the interior, and that on this map the line B, through the town of Wallace, in Idaho, was platted as the line of the said railroad; that in the fall of 1877 the company constructed its railroad upon line O, and across the land in controversy, but no amendment of the said map was made, nor was any approval of the secretary of the interior obtained to any map covering line C. After comment. — 586 — ing upon tbe facts as to the filing of the map of one route, and the building of the route and station on another, the court said: “If the United States could not and do not complain, there is no foundation for the plaintiff company to do so, as it was found hy the trial court that the platting of line B instead of line 0 was through a mistake, and that such mistake was not discovered until after the completion of the defendant's railroad and depot over and upon the ground in controversy, and that the filing of the plat showing line B was not done for the purpose of in any manner deceiving the plaintiff or any one else, and that the plaintiff was not in any manner misled or prejudiced by the filing of said iilat, or by said mistake.” And. at the close of the opinion the court said: “When a court of law is construing an instrument, whether a public law or a private contract, it is legitimate, if two constructions are fairly possible, to adopt that one which equity would favor.” Admitting that the defendant’s grantors are responsible for the acts of the surveyor, it cannot be claimed that they lost or forfeited any of their rights by a mistake which injured no other party. Watson v. Robey, 9 Cal. 52. The defendant has at least an equitable title, under its patent obtained from the United States, to the land and mill site in section 22, even if the land was misdescribed in the original application. This equitable title can be enforced as against any one who afterwards, with full knowledge of all the facts, obtained the legal title from the state. The holder of a legal title in bad faith must always yield to a superior equity. Sensenderfer v. Kemp, 83 Mo. 581; Hedrick v. Beeler (Mo. Sup.) 19 S. W. 492; Widdicombe v. Childers, 124 U. S. 400, 404, 8 Sup. Ct. 517. In the case last cited the defendants, claimed title under one Smith, who applied at a public land office for the S. E. ¼ section of land, but by a mistake the register described it as the S. W. ¼. Many years afterwards, Widdicombe, with knowledge of the mistake, obtained a patent from the United States for the S. E. ¼ section. The court said:. “The mistake in this case does not' appear to have been discovered by Smith, or those claiming under him, until after Widdicombe had got his jjaient, and after they had been in the undisputed enjoyment for thirty-five years and more of what they supposed was their own xiroperty, under a completed pur chase, with the price fully paid. Widdicombe, being a purchaser with full knowledge of their rights, was in law a purchaser in bad faith; and, as their equities were super! tr to his, they were enforceable against him, even though he had secured a patent vesting the legal title in himself.” See, also, Godkin v. Colin, 25 C. C. A. 557, 80 Fed. 458, 464. Apply these principles to the facts of the case at bar. The company’s mill mentioned in the patent was in section 22. There was no mill in section 15. When the entire description and references contained in the United States patent are considered, any person going upon the ground would at once discover where the land mentioned in the patent was, and that a mistake had been made in one of the courses given by the surveyor. This is as clear as the noonday sun when it shines, although it was obscured at the trial by the testimony of witnesses, by ingenious questions asked by counsel. The plaintiff, a surveyor by profession, knew it. He knew that the mill mentioned in the patent was in section 22, and was also aware that by literally following the field notes of the United States surveyor a sur — 587 — vey could be madfe that would not include the mill. He sought, and now seeks, to take advantage of this mistake;, and objects to the consideration of any and all testimony which tends to establish the truth, upon the ground that if the truth be ascertained, and effect given to it by the court, his title under the state patent will be invalidated. "My patent,” he asserts, “cannot be collaterally ai tacked in an action at law.” But why not? Is it not always permissible in any case at law or in equity to show that a patent upon which either party relies was issued without authority of law? In Polk v. Wendall, 9 Cranch, 87, 99, the court said: “But tliore aro some things so essential to the validity of the contract that the great principles of justice and of law would he violated, did there not exist some tribunal to which an injured party might appeal, and in which the means by which an elder title was acquired might he examined. * * * But tuero are cases in which a grant is absolutely void, as where the state has no title to the thing granted, or where an ofiicer lmd no authority to issue the grant. In such cases the validity of the grant is necessarily examinable at law.” In Patterson v. Winn, 11 Wheat. 380, 384, the court, after reviewing previous decisions, said: “We may therefore assume, as the settled doctrine of this court, that if a patent is absolutely void upon its face, or the issuing thereof was -without authority. or w;ts prohibited by statute, or the state had no title, it may be impeached collaterally in a court of law, in an action of ejectment.” In Rose v. Mining Co., supra, speaking for die supreme court of this state, I said: “In cast-s where a patent is issued without authority of law, there is no necessity to resort, to a court of equity to have it declared void. The question of its invalidity can be raised and determined in any proceeding either in law or equity. The authority of the court to declare the St. George and Victoria patents void, under the pleadings in this action, is too well settled to require discussion.” And in tills ease, upon the evidence introduced by the defendant, the san id conclusion is reached as to plaintiff’s patent. All the presumptions in favor of the patent are fully met and overcome by the proofs, which are, under the authorities, held to be admissible in actions at law as well as in suiis in equity, as will more fully appear hereafter in the discussion as to the specific facts of this case. In the present case the plaintiff’s patent is not absolutely void upon its face, but the testimony offered by defendant lends to show*, and does show', that it was issued without authority, that it was prohibited by the statute of this state, and that the state had no title to the land conveyed. In all such cases the patent may he impeached collaterally in a court of law. 3. The 2,000,000-acre grant by the United States to the state of Nevada was not intended lo include any mineral lands. Hermocilla v. Hubbell, 89 Cal. 5, 20 Pac. 611; Heydenfeldt v. Mining Co., supra. It has been the universal policy of the general government to exclude such lands from its grants. Saline lands are mineral, and were therefore reserved from (he grant to the state. In re Eagle Salt Works, Copp’s U. S. Mineral Lands, 324; Hall v. Litchfield, Id. 321; Morton v. Nebraska, 21 Wall. 680, 667; Milling Co. v. Clay (Ariz.) 29 Pac. 9. The land upon which the slimes and tailings are — 588 — situated being salt or saline lands, it follows that the state acquired no title thereto, because such lands were exempted from the grant. The same principle applies to the ground included in the location of the Manser mine. The state authorities were to select the land granted “from any unappropriated, nonmineral, public-land.” They were not invested with the duty, of passing upon the question of fact as to whether or not each particular section of land was nonmineral or unappropriated; nor was this duty imposed upon the commissioner of the general land office when he certified to the selection, or upon the secretary of the interior when he approved the same, to the same extent as in cases of applications made by individuals or corporations for a patent to agricultural or mineral lands, where specific proofs are required, and the land department 'is clothed with the power to hear and determine all questions as to the character of the land, the right of the applicant to apply for and receive the same, and the sufficiency of the proofs to show a compliance with the law entitling the applicant to a patent. All of these acts upon the part of the officers were subject to the reservations specified in the act itself. This is true of the grants made by the government to the railroad companies, and all other grants of similar character. In Mining Co. v. Consolidated Min. Co., 102 U. S. 167, 174, the court, upon this subject, said: “Taking into consideration what is well known to have been the hesitation and difficulty in the minds of congressmen in dealing with those mineral lands, the manner in which the question was suddenly forced upon them, the uniform reservation of them from survey, from sale, from pre-emption, and above all from grants, whether for railroads, public buildings, or other purposes, and looking to the fact that from all the grants made in this act they are reserved, one of which is for school purposes besides the sixteenth and thirty-sixth sections, we are forced to the conclusion that congress did not intend to depart from its uniform policy in this respect in the grant of those sectious to the state. It follows from the finding -of the court and the undisputed facts of the case that the land in controversy, being mineral land, and well known to.be so when the survey's of it were made, did not pass-to the state under the school-section grant.” In Morton v. Nebraska, supra, the court, after declaring that it had' been the general policy of the government to reserve saline lands from its grants, and that the section of the act under consideration should be construed in conformity with this policy, said: “The language of the section is imperative, and leaves no room for construction. Besides, why should an intention be imputed to congress to exclude actual settlers from saline lands, but leave them open to private entry by speculators? The legislation upon the subject of public lands has always favored the actual settlers, but the construction contended for would discriminate against them, and in favor of a class of people whose ínteres!s congress has. never been swift to promote. * * * It does not strengthen the case of "h: plaintiffs that they obtained certificates of entry, and that patents were subsequently issued on these certificates. It has been repeatedly decided by this court that patents for lands which have been previously granted, reserved from salo, or appropriated, are void. The executive officers had no authority to issue a patent for the lands in controversy, because they were not subject to entry, having- been previously reserved, and this want of power may be proved by a defendant in an action at law.” In Hermocilla v. Hubbell, supra, which was an action of ejectment, the plaintiff claimed title under a patent from the state; the — 589 — state having acquired whatever right it had from a grant from the general government of sections 16 and 36 for school purposes. The defendants, after denying plaintiff’s title, averred that they were the owners of certain mining ground situate on the land claimed by plaintiff. The court, after declaring that the title to mineral lands did not pass by the grant to the state, among other things, said: “It is also claimed that the defendants were not in a position to attack the patent. But, as we have seen, the state had no title to the mineral land, and passed none to its patentee. The title still remained in the general government, and under its laws the land was open to occupation and purchase as mineral land. The defendants wore in possession of their claims under locations which were made in accordance with the law and the local rules and customs. They were therefore in privity with the United (States, and had a clear right to contest the patent and assert tlieir rights.” If it could possibly be lield that the title of the government to the mineral land passed to the state, it would not benefit the plaintiff; for if has always been the policy of this state, as expressed in the various acts to which, reference has already been made, to exclude the mineral lands from sale. The state has no authority whatever to issue a patent for any mineral land. Heydenfeldt v. Mining Co., supra. 4. There is still another branch of this case, which leads witli equal certainty to the same conclusive results. Take the facts in relation to the 160 acres of land, the improvements made thereon, the change of title, the possession of the parties, and the actual occupancy of the land by the defendant under a claim of title, and we are. forced to the conclusion that the land' in controversy was at the time of its selection by Morrison and the issuance to him of the patent by the state, and of the purchase by plaintiff, in the actual, adverse possession of another, which, under the provisions contained in sections 1 and 2 of the act approved March 5, 1887, is of itself sufficient to prevent the plaintiff from maintaining this action. In this connection it must be remembered that the selection of the land is made by the applicant at his own peril, and he cannot shield himself from his own error or fault by showing that his selection was approved by the proper state officers. It must also be borne in mind that neither the plaintiff nor his grantor was ever in the possession of any part or portion of the land. He has no title, interest, claim, or right i.o the land, or to the possession thereof, except such as is derived from and through the patent from the state. He must, recover, if at all, upon the strength of his own patent, and cannot rely upon the weakness of his adversary's title. The legislature of this state, guided by the sound policy so long adopted and universally followed by the general government, and, in the exercise of its own wisdom and good faith to the citizens of this state, early had in view the local conditions with reference to the unsurveyed lands, and the difficulties under which the early settlers were prevented from acquiring any title, either from the state or national government, and the, lapse of timethatrnight occur before such titles could be obtained, fostered, encouraged, and protected, so far as state legislation could, the possessory rights óf individuals upon lands ceded or granted to the state by the general — 590 — government, and all other public, unappropriated, and unsurveyed lands. It will be noticed that in all the act's found in the statutes of this state with reference to such lands, or the sale thereof, great care has been manifested by inserting provisions so as to guard and protect the possessory rights acquired either prior or subsequent to the survey or'sale of the land. This court is not called upon to answer all of the various objections urged by plaintiff’s counsel, as to whether all the various deeds and other documents by which the title of the Great Salt Basin Gold & Silver Mining Company and of the Silver Peak & Red Mountain Gold & Silver Mining Company passed to the defendant. The question, and the only question, that need be discussed upon this branch of the case, is whether or not at the time Morrison made his application to purchase the 40-acre tract the land was in the actual, adverse possession of another. It is argued that the Great Basin Company did not regularly locate the land. It is enough to say upon this point that it followed and complied with the provisions of the statute. Next, it is contended that the field notes of- the surveyor were not recorded within the time mentioned in the act. True; but is this a matter of which plaintiff can complain? Certainly not. He does not pretend to have acquired any rights prior to the recording of the field notes. The incipiency of plaintiff’s rights, if any he ever obtained, did not arise until over 21 years had elapsed after the field notes were duly recorded. It is manifest that this objection is totally without merit. In Johnson v. Towsley, 13 Wall. 72, 90, it was claimed that the pre-emption claim of Towsley was governed by the fifth section of the act of 1843, and that, inasmuch as he did not file his declaration of intention within three months from the time of the settlement, his claim was forfeited. The court, in answer to this, said: “If no other party has made a settlement, or has given notice of such intention, then no one has been injured by the delay beyond three months; and if at any time after the three months, while the party is still in possession, he malees his declaration, and this is.done before any one else has initiated a right of pre-emption by settlement or declaration, we can see no purpose in forbidding him to make his declaration, or in making it void when made. And we think that congress intended to provide for the protection of the first settler by giving him ihroe months to make his declaration, and for all other settlers by saying, ‘If this is not done within three months, any one else who has settled on it within that time, or at any time before the first settler makes his declaration, shall have the better right.’ As Towsley’s settlement and possession were continuous, and as his declaration was made before Johnson or any one else asserted claim to the land or made a settlement, we think his right was not barred by that section.” See Piper v. Wyoming, 15 Land Dec. Dep. Int. 93, 97; Mining Co. v. Barclay, 82 Fed. 554, and authorities there cited; Taylor v. Brown, 5 Cranch, 234, 243. It is argued that the testimony fails to show that defendant was in the adverse possession of the land at the time of Morrison’s application. The contention of the plaintiff is that, the defendant abandoned the possessory rights of its grantors, if any they ever had, by its failure to keep possession and control of it, and that in any event it has not retained possession of any portion of the land save and except those portions upon which the buildings and improvements were — 591 — erected. If Hie ICO acres bad boon taken up as agricultural land, the argument of plaintiff's counsel would have, much weight. It may be admitted that there was no such location or inclosure of it as would be required to establish a possessory right to 160 acres of agricultural land. The land, however, is not agricultural. It is not claimed by the defendant as such. A portion of the land, including a part of the 40-acre tract claimed by plaintiff, is saline land. It is true that there was uo specific location or designation of the land as saline, except such as is to be inferred from the steps that were taken — -by having it surveyed, and the field notes thereof recorded — as required by the act of the legislature with reference to saline lands. Tin* law does not require such land to be fenced, in order to subject it to (be dominion and control of the claimant. The evidence of acts sufficient to constitute possession of land must always, in a great measure, depend upon the character of the land, its locality, and the object and purpose for which it was taken up and claimed. The law does not require vain and useless things to be done. It only requires such acts to he performed as are necessary to subject the land to the will and control of the claimant, sufficient to notify the public that the land is claimed and occupied, and is in the possession of the claimant. Silver Peak Mines v. Valcalda, 79 Fed. 886, 888, and authorities there cited. In Rogers v. Cooney, 7 Nev. 218, 218, the court, in discussing the question as to what acts were necessary to constitute possession of land upon which tailings from a mine had been deposited, said: “It is the suggestion of justice and the clearest reason that the same acts which are required to enable a .settler to obtain actual possession of pasture or agricultural land should not be demanded where the claim is only of mining ground. In the first case, fencing- is often indispensable to completely subject the land to the purposes for which alone it is useful. Hence it is generally held that such acts must be performed as will bring it within this rule of utilization. Pud. fencing a milling claim would bo an utterly use-loss act. It would in no wise improve its value, and would often be a mere incumbrance. It would not in the remotest manner further the purpose for which alone, the land is valuable. The rule requiring fencing and improvement is a rule of utility, requiring the land to be subjected to the purposes for which it is useful ; but the reason for requiring such improvements in respect, to agricultural lands lias no application to a mining claim, nor to land like this, which is valuable only for mining purposes. It has therefore been uniformly held that fencing is not necessary: that to do so could serve no purpose except to mark the boundaries, and any other means which will accomplish that object will equally answer the requirements of the law.” Applying to the evidence in this case these general rules, it is, in my opinion, sufficient to establish a possession of the land under live provisions of the law of this state concerning saline lands. The land in question was never abandoned by the defendant, or 'bv any of its grantors or predecessors in interest, after the survey was made. Abandonment is always a question of intention. The various claimants had valuable mines and water rights in the mining district and region of country where the land is situated. They had erected large and expensive improvements of various kinds thereon. The court has the right to assume from the evidence that their early investments and efforts to develop their mining property were not a complete — 592 — success. The property was situated in a mountainous region, far removed from transportation facilities, and difficult of access. They closed down their mills and suspended operations for several years, but they never abandoned the property which they acquired. They always asserted a title and claim thereto, and always had an agent or watchman in charge thereof. Under these circumstances, I am of opinion that a fair, just, and liberal construction ought to be given to the provisions of the statutes of this state which express a clear purpose to protect the settlement, buildings, and improvements of all parties in their possessory rights; and, when such construction is given, it follow's that the acts performed by the defendant brought it within the protection of the statute. The possession of the defendant having been acquired, kept up, and maintained in good faith, with full knowledge of the facts upon the part of the plaintiff, it cannot be devested of such rights because it did not avail itself of the privileges granted by the statute to apnly to the state, after the land was surveyed, and make the claim of a preferred right to purchase the same. Nickals v. Winn, 17 Nev. 189, 195, 30 Pac. 435, and authorities there cited; Stewart v. Doll, 18 Land Dec. Dep. Int. 309; Chapman v. Toy Long, 4 Sawy. 28, 35, Fed. Cas. No. 2, 10. Upon all the facts established by competent evidence in this case, it cannot, under the repeated decisions of both national and state courts, be successfully maintained that the land in controversy in this case was “unappropriated, public land” at the time of its selection by the state, or at the date when it was listed to the state, or that it was. not “in the actual, adverse possession of another” at the time Morrison made his application to the state to purchase the 40-acre tract. In addition to the authorities. hereinbefore referred to, see U. S. v. Williams, 12 Sawy. 138, 30 Fed. 309; Id., 138 U. S. 514, 11 Sup. Ct. 457, and authorities there cited. Judgment is ordered to be. entered herein, in accordance herewith, in favor of the defendant, for its costs..