Fish & Hunter Co. v. New England Homestake Mining Co.

SMITH, J. This case is before us on rehearing. It will be found reported in 27 S. D. 221, 130 N. W. 841. A careful reexamination of the case satisfies us that our former decision is correct. One matter referred to in the petition for rehearing, however, was not fully reviewed in the opinion of the court. A consideration of this c[uestion does not render necessary a restatement of the facts, which are full)'- set forth in the former opinion. The statutes of the United States authorize the Interior Department to make rules arid regulations for obtaining title to mineral lands. Under these rules and regulations, it is required that an application be made to the United States Surveyor General for survey of mining claims for an official survey of the property, together with an estimate of the amount required to defray the expenses of platting and other work required, in the Surveyor General’s office, that the applicant may make a proper deposit thereof in the office, and that “thereupon you will cause the survey to be made by [naming- the surveyor], United States deputy mineral surveyor.” Upon the completion of the survey, the applicant is required to present to the register and receiver of the United — 589 — States Land Office a sworn statement or application, to the effect that he has become the owner of the land “described in the field notes of the survey hereof, hereto attached. * * * ” In connection with this application must be filed an affidavit that in the prosecution thereof the applicant “has paid out the following aihounts, viz.: To the credit of the Surveyor General’s office $--; for surveying $-,” etc. United States Statutes, § 2334 (U. S. Comp. St. 1901, p. 1435), is as follows: “The Surveyor General may appoint in each land district containing mineral lands, as many competent surveyors as shall apply for appointment, to survey mining claims. The expenses of the survey of the vein, lode or claim * * * shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Commissioner of the General Land Office shall also have power to establish the maximum charges for surveying * * * and to, the end that the commissioner may be fully informed on the subject, each applicant shall file with the register, a sworn statement of all charges and fees paid by such applicant for publication and survey * * * which statement shall be transmitted with the other papers in the case, to the Commissioner of the General Land Office.” The substance of this section, and its purpose and intent, are condensed into and expressed in section 90 of the United States Mining Laws and Regulations, approved December 18, 1903. “The Surveyors General of the several districts will in pursuance of said law appoint in each land district, as many competent surveyors for the survey of mining claims as may seek such appointment, it being distinctly understood that all expenses of these notices and survey are to be borne by the mining claimant and not by the United States.” Section 126 of these regulations is as follows: “No return b)' a mineral surveyor will be recognized as official unless it is over his signature as a United States deputy mineral surveyor, and made in pursuance of a special order from the Surveyor General’s office. After he has received an order for the survey he is required to make the survey and return correct field notes thereof, to the Surveyor General’s office without delay." — 590 — Section 127, Regulations, etc., provides: “The claimant is required in all cases to make satisfactory arrangements with the surveyor for the payment for his services and those of his assistants, in making the survey, as the United States will not be held responsible for the same.” Respondent now contends that Godfrey, as owner of the claims, having made application for the appointment of Peck as surveyor, and the Surveyor General -having appointed him to survey the claims, an obligation was created by the laws of the United States, and an implied promise was raised that Godfrey would pay Peck for the survey. Section 127 of the rules and regulations above quoted is an authoritative interpretation of section 2334, U. S. Statutes, and neither the statute nor the rule purports or intends to create any contractual relation, either express or implied, between the claimant and the deputy mineral surveyor. One thing is made entirely clear; and that is that the United States government cannot be required or obligated to pay for the survey, even though made by one of its own 'officers, namely, a United States deputy mineral surveyor. There is nothing in the statutes or the rules, so far as we know, which requires any deputy surveyor to make a survey or enter into a contract with an applicant for a survey, except upon terms and conditions which are satisfactory to himself and the claimants. The department is authorized to fix the maximum fees for the survey, but nothing in the statute or the rules and regulations requires any deputy surveyor to accept even the maximum fees and to make a survey as a public or official duty upon the request of an applicant therefor. The matter of employment, and the manner and amount of payment of the surveyor, are left wholly to the choice and free will of the applicant and the deputy. Any deputy surveyor within the district may be selected by the applicant, and any arrangement or agreement whatever, which is satisfactory to them, may be made -as to payment for such services. In the language of section 127, “the claimant is required in all cases to make ■satisfactory arrangements with the surveyor for the payment for his services.” Nothing further is required. The amount, the time, and manner and mode of payment may be such as is satisfactory to them. The deputy may accept anything of value satis — 591 — factory to him in payment. The United. States government has absolutely nothing to do with these arrangements or agreements, except it may protect the applicant from extortionate demands by fixing a maximum fee. The payment is as much a matter of private contract and agreement as are other business contracts or relations between man. and man. No reason is perceived why the surveyor may not agree to extend the time of payment for his services one year or ten years. Necessarily the survey is made for the benefit of the applicant. But no time or mode of payment therefor is required, other than such as shall be satisfactory to the parties themselves. Precisely this and nothing more is meant or intended by the rule requiring the applicant to make affidavit that he has deposited the necessary amount in the office of the Surveyor General, and has paid the necessary amount for the survey. The surveyor’s fees may have been paid in horses or cattle, or promissory notes of a third person, or in bonds or stock, or in any other thing or commodity satisfactory to him. One thing, however, the rules and regulations of the department require; and that is that, when the applicant and the deputy surveyor have made arrangements satisfactory to them as to payment and a special order from the Surveyor General’s office has been made appointing the deputy, he is required to make the survey and return correct field notes thereof without delay. Rules and Regulations, § 126. Under this section, it is absolutely clear that, after having-made a survey, it is the official duty of the deputy to return the field notes to the Surveyor General’s office without delay, and he has no right whatever to refuse to return them because of any dispute or misunderstanding with the claimant, or any other person, over the payment of his fees. When he has accepted the appointment and performed the work, the department has nothing to do with the question of payment or nonpayment of his fees, and the rule imperatively requires, whether paid or unpaid, he shall make the proper return to the Surveyor General’s office. It is plain, therefore, that neither the statute nor the rules and regulations purport to create any contract relation, whatever, either express or implied, between the applicant and the deputy surveyor. Under this rule, it is conclusively presumed after the — 592 — deputy has accepted the appointment, and has made the survey, that arrangements for'his payment satisfactoiy to him have already been made. The rule contemplates that the business of the department shall not be hindered or delayed by his withholding the report and field notes pending settlement of differences which may have arisen. Neither are the relations of the claimant and the surveyor in the slightest degree changed or affected by the fact that the surveyor may have filed his field notes and claimant may have received the benefit of the survey. It is clear that the same agreement which was originally made as to payment remains in force after the notes are filed and the claimant has received the benefit thereof, and no new or implied contract arises because the claimant has received such benefit. It is undisputed that Godfrey entered into a contract with McHugh for the sale of the mining claims to him, and that the consideration for the contract was the promise and agreement of McHugh to furnish all money and perform all services necessary to secure patents to the claims. Under this contract, McHugh did not bind himself to take the property. It was left optional with him, hut the contract conclusively bound him to furnish the money and perform the services necessary to patent the claims. This benefit the claim owners were entitled to receive under the contract, without cost to them, even though McHugh declined to accept the property or complete the sale. The obligation of McHugh to pay these expenses was absolutely under the contract, and the fact that this proceeding must be taken in Godfrey’s name in no manner changed his obligation. It was thé duty and right of McHugh, under the contract with Godfrey, to employ and pay any surveyor he might select as well as to pay all other expenses incidental to the proceeding. It stands undisputed .that the New England Homestake Mining Company became the assignee of and accepted all the duties and obligations assumed by McHugh under this contract. It is undisputed that Russell as the agent had full authority to represent the mining company. It is undisputed that Russell did employ Peck and contracted with him as to terms of payment, which were satisfactory to him, to make this survey. It is undisputed that the — 593 — New England Homestake Mining Company, through Russell, its representative, paid to Peck $200 of the contract price for the survey. It is conceded and Peck himself testified that, when he made’ the agreement with Russell to do this work, he knew and understood that it was for the New England Homestake Mining Company, and he was to receive his pay from them. It is perfectly clear thát nothing transpired thereafter which in any manner changed or modified this original agreement under which the survey was made. The filing of the field notes and the issuance of the patent in no way changed the agreement. Godfrey has received nothing which he was not entitled to receive under the contract with McHugh and the mining company. Plence there was not, and could not be, any new consideration for an implied contract on his part to pay Peck for the survey. We are satisfied our decision was correct upon alt questions presented on the appeal, and the judgment and order of the trial court are reversed, and a new trial granted.