BROWN

v.

GURNEY; SMALL V. BROWN; BROWN V. SMALL

Mr. Chief Justice Fuller,

after making the foregoing statement, delivered the opinion of the court.

The question in these cases, which was intended to be, and was, passed upon, is when, in respect of the three locations, did the premises in controversy become subject to location?

In the state Supreme Court, counsel for Brown contended that the judgments below must be affirmed because the agreed facts failed to identify the premises in dispute as part of the Kohnyo claim; did not establish the validity of that location; ?t,nd did not affirmatively show that the premises, when located as the Scorpion, were not part of the unappropriated public domain.

But the Supreme Court applied the rule that where the existence of certain facts is assumed in the trial court and the trial proceeds, without objection, on that assumption, and the case is decided in reliance thereon, neither party will be heard in the court of review to question there for the first time the existence of the facts, and especially not where the alleged omissions might have been supplied if called to the attention of the trial court. And properly applied it, for the identity of the ground in controversy and the validity of the original Kohnyo location were conceded by both parties; and, indeed, counsel really does not deny them as matters of fact but simply objects that the stipulation did not include them.

Moreover, we think the stipulation and exhibits attached containing the various proceedings before the Commissioner of the General Land Office and the Secretary of the Interior establish the validity of the Kohnyo location. According to that record, the Kohnyo claim had passed to final entry; this entry had been recognized by the Commissioner of the General Land Office and the Secretary; the question litigated in the Land Department for something like three years, as to the knowledge of the placer applicant at the time of his application for patent of the existence of the Kohnyo vein in the placer ground, had been decided adversely to the Kohnyo claim; the Kohnyo claimant had thereupon accepted this decision, acquiesced therein, and availed himself of the privilege extended by the Commissioner’s decision of May 28, 1895, and elected to retain the northerly tract of the Kohnyo claim, which amounted to a relinquishment of the southerly tract, and the entry as to that tract was thereafter formally cancelled.

It may be added also that in adverse proceedings each party is practically a plaintiff and must show his title. Jackson v. Roby, 109 U. S. 440; Perego v. Dodge, 163 U. S. 160, 167. By the act of Congress of March 3, 1881, 21 Stat. 505, c. 140, it was provided that if in an adverse suit “ title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict.” Under that act it is held that before the applicant for a patent can have judgment he must prove his claim of title to the ground. The object of the statute was, as we said in Perego v. Dodge, supra, to provide, in the case of a total failure of proof of title, for an adjudication “ that neither party was 'entitled to the property, so that the applicant could not go forward with his proceedings in the Land Office simply because the adverse claimant had failéd to make out his case, if he had also failed.” 2 Lindley on Mines, § 763, and cases cited.

Of course it is essential that at the date of a location the ground located on should be part of the public domain, and in the present case the specific question affirmatively raised was whether the ground in controversy was apart of the public domain at the time of the respective contested locations.

It seems to us that when the Scorpion locator attempted to make that location he conceded the validity of the Kohnyo location and the segregation by that location from the public domain, of the'southerly portion of that claim, but assumed that the decision of the Secretary of May 7, 1898, operated to restore that tract to the public domain as of that date, since he relocated’it on May 13, and on the following fifteenth of July filed an amended location. But the filing of the latter certificate did not cure the defect arising* from-the fact that the discovery shaft of the Scorpion was upon ground covered by the Kohnyo’s claim, and the filing of the amended certificate could not perfect the Scorpion location in view of the previous location of ;the Hobson’s Choice, which .created intervening rights in favor of a third person.

The stipulation of facts was evidently prepared in respect of the inquiry concerning the date at which the ground in controversy reverted to and 'became a part of the public domain, and that embraced the question whether that resulted from the decision of the Secretary of May 7, 1898; or from the filing of the Kohnyo claimant of its election to rétain the northerly tract and relinquish the other, June 14, 1898; or upon the formal cancellation of the entry July 15, 1898.

Nevertheless it is further contended that the proceedings in the Land Department between May 28, 1895, and May 7, 1898, did not suspend the operation of the decision of the Commissioner of May 28, 1895, and since by that order the Kohnyo’s applicant was required to make its election within sixty days from that date, as to which end of the claim it would retain and patent, in default of which election the entry of the southerly portion became cancelled, and the Kohnyo’s claimant did not make such election until June, 1898, that the entry became cancelled as to the ground in controversy, at the expiration of sixty days from May 28, 1895, and thereupon the tract reverted to the public domain. The Land Department ruled otherwise. It treated the order of May 28, 1895, as suspended during the' intermediate period, while the proceedings as'to the knowledge of the placer claimant of the existence of the Kohnyo lode were pending. 'Manifestly because if it was known by the placer applicant at the time of application for the patent that the Kohnyo vein extended through the placer ground, then the vein did not pass by the patent, and the Kohnyo’s claimant might be entitled to patent both ends of its claim, embracing the vein and a strip through the placer location.

And when on July 15, 1898, the Department cancelled the Kohnyo entry as to the tract in controversy, it was declared that: “In view of the fact that no motion for a review of the departmental decision of May 7, 1898, affirming the decision of this office of May 28, 1895, was filed within the time prescribed by the rules of practice, the decision last mentioned became final, and it now devolves upon this office to execute the same.”

The election, then, by the Kohnyo claimant, filed in the Land Office June 14, 1898, was an abandonment of the south seven hundred feet of the Kohnyo claim, which took .effect eo instanti. Lindley, §§ 642, 643, 644; Derry v. Ross, 5 Colorado , 295, 300. This was voluntarily done, and took effect notwithstanding the receiver’s receipt had not been formally cancelled. The order • of cancellation of July 15 simply recorded a preexisting fact, and did not change the effect of the previous abandonment. By reason of that abandonment the southerly tract, for the first time, reverted to and. became a part of the public domain. And as-the Hobson’s Choice was the first location of the ground made after such abandonment, it follows that it was valid, and that its owner was entitled to a decision in its favor. We again state the dates of the respective locations. The Scorpion was located May 13, 1898. The Hobson’s Choice was located June 23, 1898. The location of the P. G. was July 16.

Thus it is seen that the Scorpion was attempted to be located at a time when the premises were not subject to location; that the Hobson’s Choice was located when the premises had reverted to the public domain;, and that the location of the P. G. was after that date.

We have accepted the rulings of the Land Department that the Kohnyo location covered the southerly as well as the northerly end of that claim. Such was the decision of May 28, 1895, and that of the Secretary of the Interior of May 7, 1898, and the formal cancellation of July 15, 1898. In this separate distinct proceeding counsel cannot challenge these rulings. The attack is collateral and cannot be entertained. Steel v. Smelting Company, 106 U. S. 447; Smelting Company v. Kemp, 104 U. S.

636. True those decisions refer to instances where the patent had issued, but the principle of freedom from collateral attack is equally applicable where final entry has been made. The final certificate issued by the receiver after the submission of final proof and payment of the purchase price, where such is required, has been repeatedly held to be for many purposes the equivalent of a patent. We are advised in argument that the patent was issued, but it is objected that though such may be the fact it is not so' stated in the facts agreed.

The cancellation of the entry of the seven hundred feet did not rest on any defect in the original location. On the contrary, the Land Department held the proceedings sufficient to entitle the Kohnyo claimant to proceed to patent for this particular tract if it should so elect. It was only when the Kohnyo claimant abandoned that tract by making its election that it waived its right to .patent it, and permitted the receiver’s .receipt to be cancelled to that extent.

That cancellation did not itself operate to restore the southerly tract to the public domain, which had already taken place by the action of the Kohnyo claimant in coihpliance with the judgment' of the Land Department.

We concur in the conclusions of the Supreme Court of Colorado, and the judgments are

Affirmed.