3. CRIMINAL LAW ING ON MOTION FOR CONTINUANCE-BILL OF 1090(7)—APPEAL-RUL- of the regular panel found two of the appellant's witnesses guilty of contempt for talking to one of the members of the regular panel and sentenced him to serve 30 days in jail. The conclusion is drawn in the motion that the regular panel of jurors were necessarily prejudiced by those facts against the appellant. The motion is not verified, and the court promptly overruled the same. A verified motion for a continuance, setting up facts calculated to show prejudice and bias of the regular panel of jurors in at tendance upon the court, and which was overruled by the court, presents no facts to this court upon which the action of the district court can be reviewed, in the absence of a showing by way of bill of exceptions of the existence of bias or prejudice on the part of the jurors. In the condition of the record, we have no way of knowing anything about the truth of the facts set up in the motion, and the fact that the motion was overruled by the district Appeal from District Court, Quay County; court would rather seem to contradict the Leib, Judge. [1] 1. Counsel for appellant asserts that there was no evidence of the locus of the crime. The evidence shows that the appellant resided in Quay county, and that one of the animals in question was found in his possession in his corral at his place of residence. It becomes immaterial therefore to discuss from the evidence as to where the first taking of the animal was perpetrated. Larceny is a "continuing offense," and, if the property is stolen in one county and taken by the thief into another, he is guilty of a new caption and asportation in the latter county. 17 R. C. L. tit. "Larceny," § 50. [2] 2. Counsel for appellant claims that there is no evidence of ownership. His argument proceeds upon the theory that the only evidence of ownership of cattle is a certified copy of the record of the brand. In this position counsel is plainly in error. It is only when the evidence of ownership depends upon a brand that a certified copy of the recorded brand is necessary to be introduced in evidence. State v. Analla, 18 N. M. 294, 136 Pac. 600. allegations of the motion. There is no transcript of the examination of the jurors as to their qualifications to sit in the trial of the case, and the appellant is therefore in no position to assert that there was any action taken by the court detrimental to his interests. A case similar in principle is State v. Balles, 24 N. M. 16, 172 Pac. 196. In that case we held that alleged prejudicial remarks of the judge in the presence of the jury could not be considered unless certified in the bill of exceptions, and we further held that, in the absence of a showing that the jurors who sat in the case heard the said remarks, there was no showing of which the appellant could complain. Just so in this case there is no showing that any juror sat in the case who was biased or prejudiced against the appellant, and he cannot therefore predicate error upon the refusal of the court to continue the case. There being no error in the record, the judgment should be affirmed, and the cause remanded to the district court, with instructions to enforce the same; and it is so ordered. ROBERTS and RAYNOLDS, JJ., concur. (No. 9103.) April 7, 1919.) 106(1) LAND OFFICE ANDERSON v. WOODWARD. (Supreme Court of Colorado. 1. PUBLIC LANDS DECISIONS-JURISDICTION OF STATE Court. Where the Interior Department decided a [3] 3. Counsel for appellant complains of contestant had a prior right of entry over holdthe action of the court in refusing a con-er of a relinquishment and granted such continuance. The only manner in which the testant a patent, the state court has no jurisfacts appear upon which the continuance was diction to review the department's action. asked is in the motion for a continuance. It is alleged in the motion that, in a previous case against the same defendant at the same term of court before the regular panel, the prosecuting witness, who was the prosecuting witness in the present case, testified that he had found the appellant killing a cow be longing to said prosecuting witness. It is further set out in the motion that the court Error to District Court, Morgan County; at the same term of court and in the presence H. S. Class, Judge. - 2. PUBLIC LANDS 40 APPLICATION FOR ENTRY-ABANDONMENT. Where the holder of a relinquishment took no steps for 12 years after his application for entry had been rejected by the Interior Department, he abandoned any rights he might have had. Action by Harry H. Anderson against Q. [ contest the entry of Raugh. This applicaA. Woodward. Judgment for defendant, tion, by reason of the pendency of the gov and plaintiff brings error. Affirmed. McConley & McConley, of Sterling, for plaintiff in error. Munson, Keating & Munson, of Sterling, for defendant in error. was ernment proceeding, was without the jurisdiction of the local office, and under the rules of the department was transmitted to the Commissioner of the General Land Office for consideration and action. On June 17, 1907, the commissioner allowed the filing of the contest by Woodward, which gave him the status of a contestant of the Raugh entry. This proceeding is one authorized by act Land Office circular letter of January 25, of Congress and promulgated by General which to enter the land where the contested entry is canceled. SCOTT, J. This is an action by the plaintiff in error, brought in the county court of Morgan county to cancel a government patIn the meantime, and on June 4, 1907, Anent to a quarter section of land, obtained derson, the plaintiff herein, filed with the by the defendant Woodward under the officers of the local land office the duly exehomestead laws of the United States. A de- cuted relinquishment of Raugh to his homemurrer to the complaint was sustained by stead entry, whereby Raugh relinquished all the county court, and, the plaintiff electing his rights to the government. At the same to stand on his complaint, the action was time Anderson filed his application to enter dismissed. The grounds of the demurrer the land under the desert land law, which were: (a) That the county court application was rejected by the local offiwithout jurisdiction of the subject-matter; cers June 11, 1907. The local officers transand (b) that the court was without jurisdic-mitted the Raugh relinquishment to the tion to determine the action because of the General Land Office. On July 7, 1907, the amount involved. A writ of error issued commissioner accepted the Raugh relinquishfrom this court to the county court, and ment, and directed the local office to notify upon review by this court the judgment of Woodward of his preference right, as a conthe county court was reversed. Anderson v. testant, to enter the tract, and, in the event Woodward, 57 Colo. 53, 140 Pac. 198. There he did exercise such right, then to reject the after the county court overruled the demurapplication of Anderson. rer, and the defendant answered generally. The cause was then tried in the county court, and judgment rendered in favor of the plaintiff. The cause was appealed to 1904, and which allows a contestant of a the district court, where trial was had de land entry a preferred right of 30 days in novo, and judgment rendered on the merits in favor of the defendant. This judgment is now before us for review. There is no dispute as to the material facts, which are, in substance, that the tract of land was vacant government land, subject to entry under the homestead laws of the United States, and in the matter of which the Interior Department had exclusive control; that on the 8th day of August, 1898, one George Raugh entered the tract as a government homestead, and in September, 1903, made final homestead proof, and received his final receiver's receipt therefor, which in due course and in the absence of fraud would have entitled him to a government patent. But before the issuance of patent and upon investigation, the Land Department, acting in the course of its regular procedure, instituted a proceeding before the local land office for the cancellation of the final receiver's receipt theretofore issued to Raugh, whereupon Raugh was notified to appear and show cause why his entry should not be canceled. Upon the application of Raugh, May 21, 1907, was set for such hearing, but this date was later vacated upon the application of the special agent of the department. Upon April 24, 1907, and before another date had been fixed for the hearing, the defendant, Woodward, filed his application to a Woodward duly entered the land as homestead within the 30 days allowed, and has received his patent thereunder from the government, which patent is sought to be canceled in this suit. In the meantime, and on June 15, 1910, on appeal from the action rejecting his application, the Secretary of the Interior decided that Woodward was not entitled, under the circumstances, to a preferred right of entry, and directed that he be notified to show cause why his home. stead entry should not be canceled. Upon this hearing to show cause, the Secretary of the Interior reversed his former decision, and affirmed the action of the local officers in rejecting the application of Anderson, and validated the entry of Woodward. The land involved in this case was open government land, subject to disposition to qualified entrymen through the Interior Department. There is no suggestion of fraud upon the part of Woodward, who obtained the government patent, nor that he did not in good faith fully comply with the homestead laws in every respect. The sole question was a controversy between two claimants for original entry, each had his hearing before the department, and the case was finally determined by the Secretary of the Interior, the lawful and final authority in such matters. [1, 2] This action in fact seeks a review of [ments, or is reserved by a claim under a Spanthe procedure and conclusion of the Interior ish or Mexican grant sub judice, or where ConDepartment, which had exclusive jurisdic- gress has made no provision for the disposition tion over the subject-matter, and with the of such land, or the statute under which the sole authority to determine between the con- patent was issued had been previously repealed, or the land was known to be of a character not flicting claims of entrymen. This the courts subject to any entry such as that on which the have no power or authority to do, and in patent is based, a patent for such land is void such a case are wholly without jurisdiction on its face, and may be collaterally attacked in the premises. Otherwise there would be in an action at law." constant conflict between state and federal authority over matters with which the federal government alone has to do. It would produce at once a state of chaos in the disposition of the public domain, and destroy the stability of government land patents upon which all such titles rest. It will be observed that Anderson made no entry. complied with no law in relation thereto, and therefore could not in any event be decreed to have any interest in the patent, as in trust or otherwise. His only claim is that the Secretary of the Interior denied him the right to make an original entry for the reason that a preferred right to enter the tract rested in Woodward, by virtue of his contest. Hence, if the court had the power to do so, and if it were to cancel the patent, it could confer no right upon Anderson in and to the land. The cancellation of the patent could do no more than to cause the land to revert to the government, subject to entry by any qualified entryman, under the rule of first in time, first in right. The right to title to public lands by an entryman can only be acquired by compliance with the law under which title is claimed. In this case Anderson claims only error upon the part of the department in refusing to permit him to make a desert land entry. He does not assert or prove that he entered upon the land, made any improve ment thereon, or did any other thing toward compliance with the desert land law. His application was made 12 years since; and, even though the secretary erred, which we have no power to determine, then Anderson by his conduct has long since abandoned any right he may have had in the premises. The rule as to when and how a patent issued by the Land Department of the government may be attacked in the courts is well stated in 32 Cyc. 1040: "A patent issued by the Land Department for land which is within its jurisdiction and power of disposition is not open to collateral attack for either mistake of fact or error of law on the part of the Land Department, and the patentee can be deprived of his rights only by direct proceedings in equity to which he must be a party and of which he must have notice. But where the title to land had passed from the United States before the claim on which a patent is based was initiated, or where the land is reserved from sale and disposition for government purposes, or dedicated to any special purpose, or withdrawn from sale and entry as being within or subject to selection under a This doctrine was approved in Aspen v. Aspen T. Co., 10 Colo. 191, 15 Pac. 794, 16 Pac. 160, where it was said that: "The patent cannot be collaterally attacked, and its validity must be assumed." It is the settled rule of law that: "A patent to land, the disposition of which the Land Department has jurisdiction, is both the judgment of the department as a quasi judicial tribunal and a conveyance of the legal title to the land, and hence is conclusive in a court of law, and as against all persons whose rights did not commence previous to its emanation, as to the land thereby conveyed, the qualifications of the person to whom the patent was issued, the title of the patentee, and his performance of the conditions required by the act of Congress under which the patent was issued." 32 Cyc. 1038. It was said upon this point by Mr. Justice Harlan in De Guyer v. Banning, 167 U. S. 723, 17 Sup. Ct. 937, 42 L. Ed. 340, quoting Mr. Justice Field in Beard v. Federy, 3 Wall. 492, 18 L. Ed. 88: of the government that its security and protec "It is in this effect of the patent as a record tion chiefly lie. If parties asserting interests in lands acquired since the acquisition of the country could deny and controvert this record, and compel the patentee, in every suit for his land, to establish the validity of his claim, his right to its confirmation, and the correctness of the action of the tribunals and officers of the United States in the location of the same, the patent would fail to be, as it was intended it should be, an instrument of quiet and security to its possessor. The patentee would find his title recognized in one suit and rejected in another, and if his title were maintained, he would find his land located in as many different places as the varying prejudices, interests, or notions of justice of witnesses and jurymen might suggest. Every fact upon which the decree and patent rests would be open to contestation. The intruder, resting solely upon his possession, might insist that the original claim was invalid or was not properly located, and therefore he could not be disturbed by the patentee." It is evident that the decision rendered in this case, 57 Colo. 53, supra, was upon a misapprehension of the facts. It was there said: "It has frequently been decided by the Supreme Court of the United States that patents for lands which have been previously granted, reserved from sale, or appropriated, are void. and that actions may be maintained to annul 660, 22 L. Ed. 639; Burfenning v. Chicago, St. P., M. & O. R. Co., 163 U. S. 321, 41 L. Ed. 175, 16 Sup. Ct. R. 1018." "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 This is a correct statement of the law, as the Land Department in defiance of such reswill appear from the statement of the rule ervation or dedication, although culminating in above quoted, but can have no application a patent, transfer no title and may be chalin this case. Here the land had not beenlenged in an action at law. In other words, the previously granted, but, on the contrary, action of the Land Department cannot override when Woodward made his entry it was vacant government land, subject to homestead entry. The only question was as to whether or not Woodward had a preferred right to enter it, which was a question exclusively for the Land Department to determine, and solely within its jurisdiction and judgment. The land had not been granted, and it had not been reserved from sale. It was unreserved, vacant government land, within the jurisdiction and power of the Interior Department, and subject to entry under the homestead law. The cases cited by the court clearly illustrate this exception to the general rule of finality of department decisions. In the case of Morton v. Nebraska, supra, the lands involved were indisputably saline lands, and had by acts of Congress been expressly reserved from settlement and private entry. Hence the Land Department had no authority or power to permit private entries upon them, and therefore such entries were void, and it was clearly within the jurisdiction of the courts to so determine. In the case of Burfenning v. Chicago, St. P., M. & O. Ry. Co., supra, the rule and its application is so plainly stated as to admit of no mistake. Speaking through Mr. Justice Brewer, 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 Land 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 [20 L. Ed. 485]; Smelting Company v. Kemp, 104 U. S. 636 [26 L. Ed. 875]; Steel v. Smelting Company, 106 U. S. 447 [1 Sup. Ct. 389, 27 L. Ed. 226]; Wright v. Roseberry, 121 U. S. 488 [7 Sup. Ct. 985, 30 L. Ed. 1039]; Heath v. Wallace, 138 U. S. 573 (11 Sup. Ct. 380, 34 L. Ed. 1063]; McCormick v. Hayes, 159 U. S. 332 [16 Sup. Ct. 37, 40 L. Ed. 171]. the expressed will of Congress, or convey away public lands in disregard or defiance thereof. Smelting Co. v. Kemp, 104 U. S. 636, 646 [26 L. Ed. 875]; Wright v. Roseberry, 121 U. S. 488, 519 [7 Sup. Ct. 985, 30 L. Ed. 1039]; Doolan v. Carr, 125 U. S. 618 [8 Sup. Ct. 1228, 31 L. Ed. 844]; Davis, Adm'r, v. Weibbold, 139 U. S. 507, 529 [11 Sup. Ct. 628, 35 L. Ed. 238]; Knight v. U. S. Land Ass'n, 142 U. S. 161 [12 Sup. Ct. 258, 35 L. Ed. 974]." Counsel for defendant in error on oral argument cite Doepel v. Jones, 244 U. S. 306, 37 Sup. Ct. 645, 61 L. Ed. 1158, as sustaining his contention. In that case plaintiffs sought by a proceeding in equity, not to cancel the patent, but to substitute the plaintiffs' rights thereunder as being held in trust for plaintiffs. The plaintiffs were heirs of an entryman whose entry had been canceled for fraud, and a subsequent entry and patent had been granted to defendant. It was said: "It seems superfluous to reason to demonstrate that no equitable right to hold the patentee as a trustee could possibly arise in favor of the plaintiffs in error, since the application to enter upon which they rely was in legal contemplation nonexistent and hence could afford no basis for equitable rights of any character." undisputed evidence, furnished to the Topeka INTERNATIONAL TRUST CO. v. CLARK | Consolidated Mining Company, which owned HARDWARE CO. (No. 9074.) (Supreme Court of Colorado. April 7, 1919.) 1. APPEAL AND ERROR FINDINGS MECHANICS' LIEN. 996-REVIEW said mining property and executed a deed of trust thereon to secure said bonds, various mining supplies for the working of its mine, upon what the court found to be "an open and continuous account," upon which there was a balance due to said hardware company. In action involving question of when mechanic's lien attached, finding that the articles The court further found that the first of said furnished were furnished under one contract supplies was furnished to said mining comwill not be disturbed on appeal, where it is fair-pany on the 1st day of December, 1909, upon ly inferable from the evidence that they were so furnished. said account. The deed of trust to the plain tiff in error was executed July 1, 1911. The court accordingly held that the lien of de fendant in error related back to December 1, 1909, and was therefore superior to the lien of the deed of trust. The question of priority of liens is thus presented for our consideration. Plaintiff in error contends, first, that the supplies were furnished under several contracts, and hence the lien does not relate back to the date when the first materials were delivered. It is to be observed that the lien is claimed under section 4 of said act which provides in terms for a lien for materials furnished for mining, or prospecting for metals. [1, 2] The rule is that, when it is fairly ICS' LIENS-TIME OF ACCRUAL-CONSTRUC-inferable that the articles were furnished unTION OF STATUTE "WORK." der one contract, a finding that they were so Mining company's lien for materials fur-furnished will not be disturbed. Fulton Iron nished under Mechanics' Lien Act 1899, § 4, Works v. N. C. Mining & Smelting Co., 80 Mo. relates back to date when first materials were 265. And when all the items in an account furnished under section 6, providing that "all relate to one transaction it constitutes a conliens * relate back to mencement of work"; such section applying to "all liens," and not being limited in its operation by use of word "work," since such word refers to beginning of operations under the contract, and not to the labor of some mechanic. com [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Work.] Department 1. tinuous transaction. Lamb & Son v. Hauneman, 40 Iowa, 41; Jones on Liens, 1435; and State Bank v. Plummer, 54 Colo. 144, 129 Pac. 819. The case of Fields v. Daisy Gold Mining Co., 25 Utah, 76, 69 Pac. 528, involves facts almost identical with those in the case at bar. The contracts were held to be continuing, and the lien was allowed. [3] The evidence shows that the manager Error to District Court, Gilpin County; of said mining company made an agreement H. S. Class, Judge. Action between the International Trust Company and the Clark Hardware Company. Judgment for latter, and former brings error. Affirmed. Hughes & Dorsey, E. I. Thayer, and Wm. M. Bond, Jr., all of Denver, for plaintiff in error. W. C. Matthews and W. C. Fullerton, both of Central City, for defendant in error. TELLER, J. This cause is before us on error to a judgment of the district court of Gilpin county, wherein the defendant in error was adjudged entitled to a lien under the mechanic's lien act of 1899 (Laws 1899, p. 261), on certain mining property which had been conveyed to the plaintiff in error, as trustee, to secure a bond issue. with the hardware company for such mining supplies as should be needed in the operations of said company, payments therefor to be made monthly, and the court was fully justified, under the authorities, in finding that there was then an arrangement for a running account. Tur It was an issue for the court to determine, and we would not be, in any event, at liberty to review its action in that behalf; there being evidence to support the finding. ner v. Wentworth, 119 Mass. 459; Helena S. H. & S. Co. v. Wells, 16 Mont, 65, 40 Pac. 78; and Philips on Liens, § 326. [4] It is further urged that the doctrine of relation under our statute applies only to contracts for labor, because the statute, section 6, provides for a relation "back to the time of the commencement of the work"; the furThe defendant in error, according to the nishing of materials not being mentioned. |