Zeiger v. Dowdy

CAMPBELL, J. Appellees brought this action to quiet title to a placer mining claim, the complaint alleging a discovery, by the plaintiffs, of mineral upon the unoccupied mineral lands of the United States and the performing of the various acts of location required by law, and that the defendant claimed some interest therein by virtue of an attempted relocation of the ground. The defendant, appellant here, answering, denied that plaintiffs made any discovery of mineral, denied that the ground was mineral in character, denied that he claimed any interest therein by virtue of any attempted location, and alleged that he claimed a portion of the ground in controversy by reason of the fact that for inore than ten years last past there has been a settlement, village, or town upon the ground attempted to be located by the plaintiffs as a mining claim; that many houses for residence and business purposes have been erected thereon, some of which defendant purchased and is in possession of, and upon which he and his grantors have paid taxes for a number of years; and that the ground was not unoccupied at the time plaintiffs attempted to make their location. At the trial the plaintiffs produced testimony tending to establish the character of the ground as placer mineral ground, the discovery of mineral thereon, and the performance of the [334] various acts of location. A location notice, filed by the defendant, whereby he sought to relocate the ground covered by the plaintiffs’ location, because of forfeiture incurred by failure to do the annual assessment work during the year 1908, was also put in evidence. An objection to any testimony on the part of the defendant was sustained, and judgment entered for plaintiffs, from which and the order denying a new trial this appeal is prosecuted. In the absence of any showing that he is seeking to connect himself with the government title under the townsite or other public land laws of the United • States, we do not think appellant can claim any rights other than those of an occupant of the public lands. His rights are those of a licensee of the government, and he must give way to oné who makes a valid entry of the land under the public land laws. But, until a valid entry is made, only the government may complain of his occupancy. The plaintiffs may have their title quieted only if they have one. It is essential to the validity of a mining claim that the ground be mineral in character, and that a discovery of mineral within the confines of the claim be made. Sections 2329-2330, Revised Statutes of the United States (U. S. Comp. Stats. 1901, p. 1432); Chrisman v. Miller, 197 U. S. 313, 25 Sup. Ct. 468, 49 L. Ed. 770. The defendant offered evidence tending to prove that the ground is nonmineral; that no discovery was made; that no location notice was posted by plaintiffs within the boundaries of their claim; and that his grantor was in actual possession at the time plaintiffs attempted to make their location. All of this evidence should have been received unless it may be said, as contended by appellees, that the defendant is precluded from denying the validity of the location by reason of having attempted a location. That he would be held to have impliedly admitted the validity of plaintiffs’ location, were he claiming under the relocation, is undoubtedly true. Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735; Providence Gold Mining Co. v. Burke, 6 Ariz. 323, 57 Pac. 641; Zerres v. Vanina, 150 Fed. 564, 80 C. C. A. 366. These authorities, however, go no further than to hold that the relocator may not show the invalidity of the original location where he claims under his relocation; and we are un-. [335] willing to enlarge the doctrine to the extent of holding that-one who has attempted a relocation, but who has abandoned it and expressly renounced any claim under it, but who nevertheless claims an interest in some other right which would entitle him to be heard had he never attempted such relocation, may not show that the original locator never made' a location, but is in fact perpetrating a fraud upon the government. It is true that he is upon the public lands as a mere licensee, but his rights in that respect are at least equal to those of the plaintiffs, if the latter’s claim as mineral locators is invalid. “The right to the possession comes only from a valid location. Consequently, if there is no location, there .can be no possession under it.” Belk v. Meagher, supra. Appellees appear to rely upon the case of Veronda & Ricoletto v. Dowdy, ante, p. 265, 108 Pac. 482. We there decided that a trespasser making no claim to the land under any of the public land laws could not be heard to urge, against one who had made a discovery upon mineral land and performed the acts of location, that the land was more useful for purposes other than mining. See Haws v. Victoria Copper Mining Co., 160 U. S. 303, 16 Sup. Ct. 282, 40 L. Ed. 436. We do not perceive that anything we there said is authority for the position assumed by appellees in this case. NOTE. — Ear a note treating at length the question of location of a mining claim, see 7 L. R. A., N. S., 763. For the reasons indicated, the judgment of the district court is reversed, and the cause remanded for a new trial. KENT, C. J., and DOAN and LEWIS, JJ., concur.