Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co.

Per Curiam: This is an appeal from a judgment in favor of the respondents in an action to quiet title in the plaintiff, appellant herein, to the Los Gazabo lode mining claim. — 413 — The Round Mountain Red Top Mining Company and John F. Davidson, defendants in the court below, are not affected by the questions raised by the appeal in this case. The complaint, among other matters, alleges: “That, under and by virtue of a patent from the United States therefor, the plaintiff is the owner, and for a long time past has been and now is in the possession and entitled to the possession of the Los Gazabo lode, mining claim and location, Survey No. 2,815, in said Round Mountain or Jefferson mining district; and said Los Gazabo location has parallel end lines; and it is described by metes and bounds as follows: [Here follows the description.] That said Los Gazabo lode or vein so far departs from a perpendicular on its dip and on its downward course into the earth, and within vertical planes drawn downward through the end lines of said Los Gazabo location, so continued in their own direction, as that it extends outside of the, vertical side lines of said Los Gazabo location on the surface, and into, through, and across the underground portion of certain lands claimed by the defendants as being the Gold Leaf and the Black Hawk so-called lode mining locations, and as being the property of the defendants.” The defendant, the Round Mountain Sphinx Mining Company, respondent herein, in its amended answer denied the validity of the said Los Gazabo lode mining claim, and alleged that said Los Gazabo claim was located entirely within the surface boundaries of certain prior existing mining claims known as and called the Sunnyside No. 1, Sunnyside No. 2, Sunnyside Fraction, and Sunnyside No. 3 lode mining claims. And as a further answer defendant alleged: “That it is the owner of, possessed of, and entitled to, the possession of that certain lode mining claim called the Gold Leaf lode, situate in the Round Mountain or Jefferson mining district, county of Nye, State of Nevada, and more particularly described as follows: [Here follows description of claim.] That within the exterior boundaries of — 414 — said Gold Leaf claim there is disclosed in the discovery a lode, vein, or ledge, * * * the general course or strike of the top or apex of which is northerly and southerly, said lode, vein, or ledge entering the southerly end line and running parallel to the side line thereof, passing out of the northerly end line of said claim; that said Gold Leaf lode, vein, or ledge on its dip from the apex extends to, beneath, and beyond the northeasterly side line of said claim, and the defendant Round Mountain Sphinx Mining Company is the owner of said vein — 415 — within vertical planes drawn downward through the end lines of said claim - extended in their own direction indefinitely, and includes the vein claimed by plaintiff as the pretended Los Gazabo veins.” The diagram (see p. 414) shows the relative locations of the Sunnyside claims, the Los Gazabo claim, and the Gold Leaf claim, the ledge and its dip, and the ledge on its dip in controversy. At the trial, plaintiff introduced a patent issued by the United States as evidence of its ownership of -the Los Gazabo mining claim. This patent was a group patent of the Sunnysides and Los Gazabo claims, and on its face the description of the Los Gazabo claim is in conflict with Sunnysides Nos. 1, 2, 3, and Sunnyside Fraction location; all these claims being described in and the patent purporting to grant them all as described by metes and bounds. Only a minute portion of the Los Gazabo location projects beyond and is free from conflict with the other locations. No portion of the apex of the lode in controversy is situated in this nonconflicting area. It is-the contention of the respondent, and the lower court so held, that, in view of this conflict appearing on the face of the patent itself, the patent was ambiguous, and it was competent to go behind the patent and determine the question .of priority between the Los Gazabo and the Sunnyside claims described by the patent. The respondents contended, and the trial court ■ so held, that the Sunnysides were entitled to priority over the Los Gazabo, thus rendering the Los Gazabo invalid as far as it conflicted with the Sunny-sides. Outside of certain legal questions involved, the main question of fact was as to the priority of locations of the Sunnysides as against the Los Gazabo claim. [1] As repeatedly held by this court, findings of the lower court upon conflicting evidence are binding upon this court. This case appears to have been tried with great care by the lower court, and, after a careful examination of the record and the briefs of counsel, we are satisfied that the trial court arrived at a correct conclusion. The opinion filed in the case by Judge Stevens — 416 — covers the case so fully that this court has adopted the greater portion thereof as the opinion of this court. From the opinion rendered by the trial judge, we quote with approval the following: “The Gold Leaf claim did not file an adverse to the application for patent, made by the plaintiff, for the Sunnyside and Los Gazabo claims, and the patent for said claims therefore includes so much of the surface ground of the Gold Leaf as conflicted with the Sunny-sides and Los Gazabo, and there is no controversy in this action respecting the surface rights of the respective parties, and, the defendant Round Mountain Sphinx. Company having dismissed its counterclaim for damages alleged in its separate answer, the only issue to be determined is as to the extralateral rights acquired by the plaintiff by its patent to the Los Gazabo claim. The evidence clearly shows that the lode or vein, known as the Los Gazabo, and which has its apex within the surface lines of the Los Gazabo or Sunnyside claims, on its dip beneath the surface, extends toward and through the Gold Leaf and Black Hawk claims, and that the plaintiff, in prosecuting the development on the Los Gazabo, has entered into the Gold Leaf and Black Hawk claims, and has extracted and removed a large amount of ore therefrom. [2] “The evidence further shows that the lode or vein, known as the Los Gazabo lode, is a cross vein of the Sunnyside claims, and that, in prosecuting the • development of said lode, the plaintiff has departed from the westerly side line of Sunnyside No. 1, which would constitute the westerly end line of the claim in determining the extralateral rights of the plaintiff, and, if the Los Gazabo location should be held invalid, the side lines of the Sunnyside claims would become the end lines, across which, as they extend downward vertically, the plaintiff cannot follow the vein, and could not enter upon or into the premises in dispute, which are shown to be outside of vertical planes drawn downward through those lines. (Flagstaff M. Co. v. Tarbet, 98 U. S. 468, 25 L. Ed. 253; Wolfley v. Lebanon M. Co., 4 Colo. 112.) — 417 — [3] “The record shows that the Los Gazabo-location was a junior location, and the location certificate filed by Scott, et al., the locators of said claim, and introduced in evidence by the plaintiff, recites that the claim ‘is wholly within the boundaries claimed by Sunnyside Nos. 1, 2, and 3.’ This declaration of itself is sufficient to cast the burden upon the locators to show that the Sunnyside claims were invalid. The mining acts of Congress authorize location of mining claims upon the unoccupied and unappropriated mineral lands of the United States. Nowhere in the recitals contained in the original location cértificate of the Los Gazabo does it appear that the land in question was of a character which the law authorizes a location upon. * * * If the Sunnyside claims were valid and existing locations at the time the Los Gazabo was located, it is clear that the latter location was void. (Belk v. Meagher, 104 U. S. 284, 26 L. Ed. 735; Reynolds v. Pasco, 24 Utah, 219, 66 Pac. 1064; Armstrong v. Lower, 6 Colo. 393.) “I think the proof is clear that the Sunnyside locations Nos. 1, 2, and 3 were made on the 20th day of February, 1906. The location and amended location certificates of the several claims show that all the acts necessary to constitute valid locations were performed by the locators and within the time required by law. The amended and additional location certificates filed by the plaintiff company allege the date of the discovery to be on the 20th day of February, 1906. The evidence of McDonald shows that the monuments were erected and. the discovery shafts' on these claims sunk within the prescribed limit. (Page 273, Transcript of Evidence.) [4] “Counsel for plaintiff contends that as the law does not make the location certificate prima facie evidence of discovery, that such a declaration is not binding upon the plaintiff; but I am of thé opinion that, while it might not be sufficient evidence as against the defendants, the declarations contained in the record by which the patent was obtained is some evidence that can be considered in the absence of proof that the record does not state the truth. If more were needed, I think the — 418 — evidencé of the president of the plaintiff company, James R. Davis, is conclusive upon this point. [5] “I can reach no other conclusion but that on the 3d day of March, 1906, the date of location of the Los Gazabo claim, the Sunnysides Nos. 1, 2, and 3 were valid existing locations, and that the location of the Los Gazabo was based upon a discovery of mineral within the limits of the Sunnyside claims, and was therefore void. (Belk v. Meagher, supra, 104 U. S. 284, 26 L. Ed. 735; Reynolds v. Pasco, 24 Utah, 219, 66 Pac. 1064; Tuolumne Con. Co. v. Maier, 134 Cal. 583, 66 Pac. 863; Golden Terra Co. v. Mahler, 4 Morr. Min. Rep. 390, 2 Dak. 377, 11 N. W. 98; Armstrong v. Lower, supra, 6 Colo. 393.) [6] “Counsel for plaintiff contends, however, that a patent, having been issued to the plaintiff by the land department, is a conveyance of the legal title to the patentee after the matter has been adjudicated by the proper tribunal, and like other judgments is impervious to collateral attack, and I think this contention is correct so far as the' adjudication of any matters which were before the tribunal for adjudication and as against all persons who were parties to the adjudication. I am satisfied that the defendants would be estopped to deny the validity of the patent so far as the Sunnyside claims are concerned, and defendants do not question its validity with reference to the surface ground within the boundaries of those claims, nor any extralateral rights which accrue to plaintiff by virtue of the patent to the Sunnyside claims. “As the Gold Leaf failed to file an adverse to the application of plaintiff for patent, the adjudication of the land department is conclusive as to the rights of the parties to the surface ground included in the application, but the validity of the Los Gazabo claim was not before the department, and could not be questioned by the Gold Leaf in that proceeding. There was nothing at that time to show that the plaintiff was attempting to acquire any rights which could conflict with the rights of the defendants. — 419 — [7, 8] “The government had a right to convey the land included within the surface boundaries of the' Sunny-side locations, as the Sunnyside claims, which had been regularly and legally segregated from occupancy or appropriation by another, and, the Lo's Gazabo being wholly located within the boundaries of claims already segregated being void, the government had no further rights to convey by the Los Gazabo patent. (Rose v. Richmond M. Co., 17 Nev. 26; South End Mining Co. v. Tinney, 22 Nev. 19.) [9] “Again, this is an equitable action to quiet the title to the Los Gazabo lode or vein, which involves the question of extralateral rights which were not involved in the proceedings for patent, and the defendants are not estopped from questioning the validity of the location of the claim under which the plaintiff seeks to enforce such extralateral rights as against them. (United States M. Co. v. Lawson, 134 Fed. 769, 67 C. C. A. 587; Lawson v. United States M. Co., 207 U. S. 1, 28 Sup. Ct. 15, 52 L. Ed. 65; Bunker Hill M. Co. v. Empire State M. Co., 108 Fed. 189.) [10] “The validity of such patent may be pleaded as a defense in any action, and may be tried upon the same principles as an original bill in equity. (South End M. Co. v. Tinney, 22 Nev. 19; Rose v. Richmond, 17 Nev. 26.) “To sustain its contention in this case, the plaintiff cites the case of Tonopah and Salt Lake Mining Co. v. Tonopah Mining Co., 125 Fed. 408 (decided by Judge Hawley), but the facts in that case are entirely different from the facts in this case. In the case cited it clearly appears that a discovery of mineral was made by the junior location entirely outside of the boundaries of the senior location. In this case the contention is not and cannot be made that any discovery of mineral was made outside of the boundaries of the Sunnyside claims. “Judge Hawley, in his decision in the case cited, used the following language: ‘Conceding, as we have throughout this case, that the location of a mining claim, based exclusively on a discovery of mineral within the limits of another existing and valid location, is void.’ — 420 — He also quotes the language of the Supreme Court of the United States in the case of Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. 1110, 29 L. Ed. 848, as follows: ‘That the location as made by the locator must be one which entitles him to possession as against the United States, as well as against another claimant, if it is not valid as against the other. The location is the plaintiff’s title. If good, he can recover. If bad, he must be defeated. A location on account of the discovery of a vein or lóde can be made by a discoverer, or one who claims under it. The discovered lode must lie within the limits of the location which is made by reason of it. If the title to the discovery fails, so must the location which rests upon it.’ “I canno.t find that any of the authorities cited sustain the location of the so-called Los Gazabo lode, and I can reach no other conclusion than that such location was void, and that the patent, issued by the land department, could give such location no legal vitality. * * * Having found, as a matter of fact, that the patent to the so-called Los Gazabo is invalid for any purpose, as a conclusion of law, the court finds that the plaintiff should take nothing by its suit, and that the defendants should have judgment for their costs herein expended.” That the government cannot convey the same tract of land twice has been too frequently decided to require citation of authorities. It cannot convey conflicting areas of mining claims to two parties, for in such case one of the grants must of necessity be void. It follows as a necessary sequence that, where the government issues a patent to a group of mining claims purporting to grant the same surface to different claims constituting the group, all the several grants cannot be valid, so far as the conflicting area is concerned. So far as the surface conveyed by the group patent is concerned, it makes no difference, but when it comes to extralateral rights, as in this case, it becomes of the greatest importance which particular grant carries the surface including the apex. — 421 — [11] It may be conceded that the land department has jurisdiction to determine the question of priority as between conflicting lode locations embraced in the same group application, but in the case of the Sunnyside-Los Gazabo application it failed to exercise such jurisdiction. The patent under consideration contains no exclusion of conflict area from one claim in favor of another. Neither in the verified application for patent, the published notice, nor its final application to purchase, did the appellant make any exclusion in favor of the Los Gazabo. It applied for and received a patent to these conflicting claims which made no mention of the conflict. [12] The field notes made by appellant’s surveyors contained such an exclusion, made upon the direction of appellant’s attorney. Appellant offered these notes in evidence, and error is assigned in their exclusion. We think no. prejudicial error could have thus been committed, for the exclusion in the notes, under the circumstances, was a self-serving act by an agent of the plaintiff which could not be binding on respondent. While these surveyor’s field notes were before the land department, there was also the sworn statement contained in the application for patent that -the Sunnyside locations were prior to the Los Gazabo. [13] It is manifest that the land department did not determine the question of priority, but made a double grant of the conflicting area. This appearing upon the face of the patent, the question of priority was a matter which the trial court had power to consider and determine. This was not a collateral attack upon the patent, but a determination of the effect of a patent containing ambiguous provisions. As appellant was relying on the patent as a valid grant of the Los Gazabo location, the patent oh its face being ambiguous in that it did not show a priority of location in favor of any of the claims granted by the patent and which covered the conflicting area, the burden of proof was upon the appellant to explain the ambiguity and establish the priority of the Los Gazabo location. — 422 — The contention that the defendant Round Mountain Sphinx Mining Company, as owner of the Gold Leaf claim, not having filed an .adverse claim to plaintiff’s application for patent, it is now precluded from questioning . its validity, is, we think, without merit. It cannot, of course, question the validity of the surface conveyed, but as the patent contains grants of distinct mining claims described by metes and bounds, in conflict with each other, and controlling extralateral rights in different directions, it can insist on a determination to which particular claims the apex of the ledge belongs as controlling the extralateral rights. The judgment is affirmed. Note — At the time of printing this volume petition for rehearing the foregoing case is pending.