any be found to exist in the tracts," embraced by the patent. And the decision is expressly put upon the ground that there was that exception, and that it was "part of the description" of the lands conveyed. And it may be strongly argued, that in such case, although it was the duty of the land department to determine the character of the land before the issuance of the patent, yet, as the patent shows upon its face that such duty was not performed, the patentee must be held to have taken it knowing its uncertain and unsubstantial character. On the other hand, Judge Sawyer has held, in an opinion of great force and ability, that the issuance of a patent in such a case was a conclusive declaration that the land was of the character to be properly patented under the law, that is, agricultural land; that there is no authority to make in such a patent a general reservation of mineral lands, any more than there is in case of a pre-emption patent; and that such a reservation is void. (Cowell v. Lammers, 10 Saw. 246.) At all events, as in the case at bar the patent contains no reservation whatever, the case of McLaughlin v. Powell, is not authority here. And the same may be said of Chicago Q. M. Co. v. Oliver. In that case the patent also excepted "all mineral lands, should any be found to exist," etc. Carr v. Quigley is not in point at all. In that case there was no question about the character of the land patented. It was claimed to be within a "government reservation"; and that the body of land itself involved in that case, without reference to its character, was expressly reserved from the operation of the law under which the attempt was made to patent it.

Our opinion is, that where a patent issues for public land under a law which provides for its disposal as agricultural land, either to a railroad company or to pre-emption or homestead claimants, and there is no reservation in the law except a general one of mineral lands, and no reservation at all in the patent, then the

LXXVIII. CAL.-16

patent must be considered as a conclusive determination by the government that the land is agricultural; and afterward, in an action in a court of law, it is not competent to reopen the question of the character of the land. The opposite view would render the titles to a large region of California now rapidly filling up with agricultural settlers unstable, insecure, and almost worthless. It would affect, also, those holding through patents under the pre-emption and homestead laws,-for mineral lands are exempted from the provisions of those laws. The theory of that view is, that if the land previously patented as agricultural can at any time be shown to be in fact mineral, then the title to it never passed from the United States, but it had always remained a part of the public domain; and as no statute of limitations runs against the government, the insecurity of the title under the patent would be perpetual, and an attack upon it could be made as successfully one hundred years hence as now. Such, in our opinion, is not the law.

The view taken of the question presented by the court below was correct; and we see no error in the record. Judgment and order affirmed.

WORKS, J., PATERSON, J., THORNTON, J., and SHARPSTEIN, J., concurred.

[No. 13002. In Bank.-February 18, 1889.]

IN THE MATTER OF THE ESTATE OF WILLIAM H. MOORE, DECEASED. THOMAS W. MOORE, ADMINISTRATOR, PETITIONER, V. JUDGE OF SUPERIOR COURT OF SANTA CRUZ COUNTY, RESPONDENT.

BILL OF EXCEPTIONS-INSERTION OF DOCUMENTS-SETTLEMENT IN SUpreme Court.—It is a complete answer to an application to this court to settle a bill of exceptions on account of the refusal of the judge who tried the case to settle the same in accordance with the facts, that the papers and documents which this court is asked to insert were not offered in evidence upon the trial. The fact that some of the papers were commented upon in the court below is insufficient to require their insertion, if they were not offered in evidence.

REMOVAL OF ADMINISTRATOR-DOCUMENTARY EVIDENCE OF LITIGATION. -Upon the trial of a proceeding to remove an administrator for failure to file his final account, when the defense is prolonged and undetermined litigation with the widow of the decedent, the court is not bound as matter of law to examine and consider all the papers of the estate, and those pertaining to the different branches of the litigation, unless the same are offered in evidence by the administrator.

APPLICATION to the Supreme Court from the settlement of a bill of exceptions against Hon. P. W. Keyser, acting judge of the superior court of Santa Cruz County.

Hall & Rogers, for Petitioner.

Charles B. Younger, for Respondent.

WORKS, J.-Application to this court to settle a bill of exceptions on the ground that the court below has refused to insert certain records, papers, and documents therein.

The petitioner was the administrator of the estate of Moore, and was, by order of the court below, removed from his trust. One of the grounds of the petition for his removal was, that he had failed to file his final account as required by law. In his answer he admits that he has not filed his final account, but alleges as an excuse for not doing so that the estate had been in litigation for nearly ten years with the widow of the estate, and that said litigation is not yet ended. The matter sought to be inserted in the bill of exceptions, by this proceeding, consists of the pleadings, papers, and proceedings in the different branches of the litigation between the estate and the widow referred to in the answer. The judge of the court below, for answer to the petition, alleges that the papers and records aforesaid "were not, nor was any part thereof read, offered, or used in evidence on the trial of said proceeding for the removal of the administrator of said estate, nor was any exception, in any wise relating thereto, taken by said petitioner at said trial." This is conceded by the peti

tioner, and is a complete answer to the petition. The office of a bill of exceptions is to present to this court the proceedings of the court below. Only such evidence can be inserted therein as was heard by the court, or offered and excluded. To permit an appellant to insert in his bill of exceptions any matter of evidence not actually heard by the lower court would work great injustice both to the court and to the opposite party. It would present to this court a case which might be entirely different from the one presented to and decided by the court below.

It is argued on behalf of the petitioner that the papers and records referred to were a part of the proceedings in the settlement of this same estate, and that for that reason it was the duty of the court to examine and consider them in determining the question whether the administrator should be removed or not, and that this court should presume that they were so examined and considered. We cannot accede to this view. Such a rule would leave the lower court no guide in making up a bill of exceptions, and lead to utter confusion. A party who desires that any item of documentary evidence shall be considered by the court must call the attention of the court to it, and offer it in evidence. In no other way can it be regarded as a part of the evidence, independent of some stipulation of the parties. It need not be read in evidence, but must necessarily be offered, and thereby brought to the attention and consideration of the court. By no other means can the practice in this particular be made certain and uniform. Nor can we say as matter of law that the court was bound, in passing upon this question, to examine and consider all of the papers in the estate.

Again it is claimed that some, if not all, of these papers were commented upon at the argument below, and that they were thereby called to the attention of the court, and should, for that reason, be inserted in the bill

of exceptions. But this will not do. Such a practice would lead to just what has taken place here, a controversy between opposing counsel as to what, if anything, was so referred to.

For the reasons given, the application is denied.

BEATTY, C. J., SHARPSTEIN, J., MCFARLAND, J., and THORNTON, J., concurred.

[No. 12648. In Bank.-February 19, 1889.]

M. McCORMICK, RESPONDENT, v. F. SUTTON, AP

PELLANT.

EJECTMENT-IMMATERIAL ERROR IN FINDING NOT GROUnd for Relief ON APPEAL.-Where judgment in an action of ejectment is properly rendered in favor of the defendant upon the findings taken as a whole, an erroneous conclusion of law made as to a particular matter is immaterial, and insufficient to entitle the defendant to relief upon appeal.

APPEAL from a judgment of the Superior Court of Tuolumne County.

The nature of the action, and the findings of the court, are stated in the opinion in McCormick v. Sutton, ante, p. 232. The facts affecting the present appeal are stated in the opinion of the court.

F. W. Street, for Appellant.

F. D. & G. W. Nicol, and E. A. Rodgers, for Respond

ent.

PATERSON, J.-Ejectment. Judgment was entered in the court below in favor of defendant on September 26, 1887. Plaintiff's motion for a new trial was denied on December 24, 1887, and thereafter, to wit, on January 3, 1888, he appealed to this court from the judgment and order. (McCormick v. Sutton, ante, p. 232.)

On March 26, 1888, the defendant, fancying that he