Ralph v. Cole

ROSS, Circuit judge (after stating the facts as above). The act of Congress of July 26, 1866 (14 Stat. 251, c. 262), in which provision was made for contests of rival mining claims to mining ground by the filing of adverse claims in the land office and their subsequent trial in' a court of competent jurisdiction, was subsequently made more specific by the act of May 10, 1872 (17 Stat. 91, c. 152), and from that carried into the. Revised Statutes as sections 2325 and 2326. An amendment to the latter section was made by act approved March 3, 1881 (21 Stat. 505, c. 140 [Comp. St. 1916, § 4625]), by which it was declared: “That if, in any action brought pursuant to section twenty-three hundred and twenty-six of the Revised Statutes, title to the ground in controversy shall not be established by either party, the jury shall so findf and judgment shall be entered according to the verdict.” Referring to the latter act in the case of Perego v. Dodge, 163 U S. 160, 167, 168, 16 Sup. Ct. 971, 974 (41 L. Ed. 113), the Supreme Court said that it (lid not regard it “as intended or requiring all suits under section 2326 to be actions at law and to be tried by a jury”-— saying: “We do not think the intention of this act was to change the methods oi! trial. Its manifest object was to provide for an adjudication, in the case supposed, that neither party was entitled to the property, so that the applicant could not go forward with his proceedings in the land office simply because tho adverse claimant had failed to make out Ms case, if he had also failed. In other words, the duty was imposed on the court to enter such judgment or decree as would evidence that the applicant had not established the rigM of possession, and was for that reason not entitled to a patent. The whole proceeding is merely in aid of the land department, and the object of the amendment was to secure that aid as much in cases where both parties failed to establish title as where judgment was rendered in favor of either, and while the finding by a jury is referred to, we think that, 1(where the adverse claimant chooses to proceed by bill to quiet title, and as between him and -the applicant for the patent neither is found entitled to relief, the court can render a decree to that effect, just as it would render judgment on a verdict if the action were at law. If Congress had intended to provide that litigation of this sort must be at law, or must invariably be tried by a jury, — 88 — it would have said so. There is nothing to indicate the Intention thus to circumscribe resort to the accustomed modes of imocedure or to prevent the parties from submitting the determination of their controversies to the court.” ■ ■ By section 2325 the applicant for a patent to a mining claim is required to file with his application the evidence of his right to it, and the register of the land office is thereupon required to cause notice of such application to be published in a prescribed way for 60 days, during which time any adverse claimant to any part of the location described in the application is required to file an adverse claim in the land office. The next section — 2326—is as follows: “Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without ■giving further notice, file a certified copy of the judgment-roll with the register of the land office, together with the certificate of the surveyor general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the Commissioner of the General Land Oflice, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees and file the certificate and description by the surveyor general, whereupon the register shall certify the proceedings and judgment roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed- to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever.” It will be seen from the express language of this statute that the question-so to be transferred from the land office to a court of competent jurisdiction for decision is that of the right of possession of the mining ground, respecting which the contest has arisen in the land office — the title to the ground of course remaining in the government for disposal in accordance with the judgment of the court and after compliance with all the other requirements of the statute. No form of action is prescribed by the statute, and no court other than one of competent jurisdiction is designated. Prior to the passage of any mining law by Congress, both the Land Department and the courts always acted upon the rule that all mineral locations were to be governed by the local laws, rules, and customs in force at the time of the location. Glacier Mining Co. v. Willis, 127 U. S. 471, 482, 8 Sup. Ct. 1214, 32 L. Ed. 172, and cases there cited. That such practice was intended by Congress to be continued is clearly — 89 — shown by the express provisions of section 2 of the act of July 26, 1866 (14 Slat. 251), and by section 2332 of the Revised Statutes (Comp. St. 1916, § 4631), the former of which provides, among other things, that: “Whenever any person or association of persons claims a vein or lode of quartz or other rock in placo, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local customs or rules of miners in the district where the samo is situated, and having expended in actual labor and improvements thereon an amount of not less than $1,000, and in regard to whose possession there is no controversy or opposing claim, it shall, and may be lawful for such claimant or association of claimants to file in the local land office a diagram of the same so extended laterally or otherwise as to conform to the local laws, customs, and usages of miners, and to enter such tract and receive a patent therefor granting such mine,” etc. - — and the second of which,' to wit, section 2332 of the Revised Statutes, declares, among other things, that: “Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the si a tute of limitations for mining claims of the state or territory where the same may be situated, evidence of such possession and working of the claims for such period shall bo sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim.” Rooking at the scheme presented by sections 2325 and 2326 of the Revised Statutes, said the Supreme Court in Richmond Mining Co. v. Rose, 114 U. S. 576, 584, 5 Sup, Ct. 1055, 1059 (29 L. Ed. 273)— “and which relates solely to securing patents for mining claims, it is apparent that the law intended, in every instance where there was a possibility that one of these claims conflicted with another, to give opportunity to have the conflict decided by a judicial tribunal before the rights of the parties wore foreclosed or embarrassed by the issue of a patent to either claimant. The wisdom of this is apparent when we consider its effect upon the valuó of the patent, which is thereby rendered conclusive as to ail rights which could have been asserted in this proceeding, and that it enabled this to be done in the form of an action in a court of the vicinage, where the witnesses could he produced, and a jury, largely of miners, could pass upon the rights of the parties under instruction as to the law from the court. It is in full accord with this purpose that the law should declare, as it does, that when this contest is inaugurated the land officers shall proceed no further until the court had decided, and that they shall then he governed by that decision; to which end a copy of the record is to be filed in their office. They have no further act of judgment to exercise. If the court decides for one party or the other the Land Department is bound by the decision. If it decides that neither party has established a right to the mine or any part of it, this is equally binding- as the case then stands. With all this these officers have no right to interfere. After the decision they are governed by it. Before the decision, ■once the proceeding is initiated, their, function is suspended.” In the subsequent case of Iron Silver Mining Co. v. Campbell, 135 U. S. 286, 299, 10 Sup. Ct. 765, 769 (34 L. Ed. 155), the same court, in speaking of the same statute, said: “The purpose of the statute seems to be that, where there are two claimants to the same mine, neither of whom has yet acquired the title from the government, they shall bring their respective claims to the same property, in the manner prescribed in the statute, before some judicial tribunal located in the neighborhood where the property is, and that the result of this judicial investigation shall govern the action of the officers of the land department in — 90 — determining which of these claimants shall have the patent, the final evidence of title, from the government.” Neither the specific courts authorized by section 2326 to try tire right of possession of the ground to which conflicting claims arise in the land office, nor the character of such actions being designated by the statute, different rulings were made by the courts, many holding, as was done by a number in this circuit — Shoshone Mining Co. v. Rutter et al., 87 Fed. 801, 31 C. C. A. 223, Doe v. Waterloo Mining Co. (C. C.) 43 Fed. 219, and other cases there referred to — that such actions were equitable in their nature, and that the federal courts had jurisdiction of them regardless of the citizenship of the parties; but on appeal of the case of Shoshone Mining Co. v. Rutter et al., reported in 177 U. S. 505, 20 Sup. Ct. 726, 44 L. Ed. 864, the Supreme Court, while conceding that the question was not' free from doubt, held that, inasmuch “as the 'adverse suit’ to determine the right of possession may not involve any question as to the construction or effect of the Constitution or laws of the United States, but may present simply a question of fact as to the time of the discovery of mineral, the location of the claim on the ground, or a determination of the meaning and effect of certain local rules and customs prescribed by the miners of the district, or the effect of state statutes, it would seem to follow that it is not one which necessarily arises under the Constitution and laws of the United States,” and accordingly concluded that while such suits may sometimes so present questions arising under the Constitution and laws of the United States that the federal courts will have jurisdiction regardless of fhe citizenship of the parties, yet the mere fact that a suit is an adverse suit authorized by the statutes of the United States is not in and of itself sufficient to vest such jurisdiction, and reversed the judgment appealed from. From the pleadings in the present cases it is plain that they were actions at law in which the sole issue was the right of possession of the respective mining claims. Being such, the parties were of right entitled to a jury trial; besides which it appears from the records that they expressly stipulated for such a trial in the court below, to which court the cases were, on motion of the defendant thereto, transferred from the state court in which they were commenced, because of the diverse citizenship of the parties. It is apparent from what has already been said that the issue in the cases depended for its determination upon the above-cited provisions of the statutes of the United States and upon the local laws, rules, and customs of the state and district where the ground in dispute is situate, applied to the facts of the “case. A statute of limitations of Nevada regarding mining claims originally enacted as early as November 21, 1861, as amended in 1867, reads as follows: “3706. Sec. 4. No action for the recovery of mining claims, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, or those through or from whom he claims, were seized or possessed of such mining claim, or were the owners-thereof, according to the laws and customs of the district embracing the same, within two years before the commencement of such action. Occupation and adverse possession of a mining claim shall consist in holding and working the same, in the usual and eus — 91 — tomary mode of lidding and working similar claims in the vicinity thereof!. All the provisions of this act, which apply to other real estate, so far as applicable, shall be deemed to include and apply to mining claims: Provided, that in such application ‘two years’ shall he held to be the period intended whenever the term ‘Ave years’ is used; and provided, further, that when the terms ‘legal title’ or ‘title’ are used, they shall be held to include title acquired by location or occupation, according t<3 the usages, laws, and customs of the district embracing the claim.” Cutting’s Compiled Laws of Nevada, 1861-11)00. By virtue of that statute and of the provisions-of section 23.12 of the Revised Statutes, the defendant to these actions in his answer to the complaints set up, among other defenses, that on or about February 2, 1897, the grantors of the defendant, being then citizens of the United States, entered upon its then unappropriated public domain and located the Salt Lake, No. 3 lode mining claim, by then and there marking the boundaries thereof as required by law, from which time the defendant and his grantors and predecessors in interest remained in the open, notorious, adverse, and undisputed possession of the said lode mining claim, holding, working, and living thereon; that on or about September 6, 1913, while the said claim was so being held, owned, occupied, and possessed by the defendant, the plaintiffs and their grantors, with full knowledge, wrongfully and without authority entered upon said lode mining claim, without the knowledge or consent of the said defendant, and attempted to locate upon the ground embraced within the said Salt Lake No. 3 lode the Guy Davis placer claim, which attempted location of the plaintiffs and their grantors was and is wholly void and of no effect, and that by reason of the premises alleged the defendant became and now is the owner atid holder of (he said Salt Lake No. 3 lode claim and the whole of the ground embraced (hereby. In support of that plea of the statute of limitations the defendant to the actions introduced much evidence tending to support it, and going to show that the Salt Lake No. 3, iVlidas, and Evening Star were three of a dozen or more neighboring lode claims known as the Cop ■ per Canyon group of mines that were located by the predecessors in interest of the plaintiff in error many years before the entry upon the same by any of the defendants in error or any of their predecessors in interest and that all of such lode claims have been duly patented by the government except the three here in contest. Evidence was given that the Salt Lake No. 3 was located by two men named, respectively, Clive and Johnson, on the 2d day of February, 1897, and the Midas and Evening Star by Joseph and William T. jurey March 27, 1907, and that the notices of location thereof were duly recorded and reciled on their face the discovery of a vein within the ground so located. Evidence was given of the performance of the required annual assessment work on each of the lode claims in dispute by the locators thereof and their successors in interest, and tending to show their continued adverse occupancy by the successors in interest of the original locators and the doing from time to time of a large amount of work thereon — there having also been erected oil the Salt Lake No. 3 claim, as will be seen from the photographs that have — 92 — been inserted, a mill and other buildings, in one of which houses a watchman of the properties was at all times kept during the times when active work thereon was suspended. Evidence was also given on the part of the plaintiff in error tending to show that, prior to the entry upon any of the ground here in controversy by the defendants in error or ¡any of their predecessors in interest, the plaintiff in error or his predecessors in interest had discovered in tire gravel of the narrow canyon that comes down from the hills placer gold, and that that discovery was the cause of an inrush of people, among whom were one or more of the present defendants in error and the predecessors in interest of the others of them, the latter of whom proceeded to make the placer locations Guy Davis and Homestake on the ground previously located by the predecessors in interest of the plaintiff in error. The record shows without dispute that the sole basis of such intrusion upon the actual possession of the plaintiff in error was and is the contention that no discovery of a lode or vein was ever made within the boundaries of either the Salt Lake No. 3, Midas, or Evening Star lode claims. That discovery of a vein or lode within its boundaries' is essential to the validity of any lode claim is beyond question, and the law is well settled that at any time previous to such discovery ground within the boundaries of such a claim, although within the actual possession of the claimant, is open to the entry of others by any legal means for the purpose of locating it under the mining laws. See the numerous cases cited in the recent case of Consolidated Mut. Oil Co. v. United States, 245 Fed. 521,-C. C. A. ——. In the present cases, however, the record shows that there was much evidence introduced on the part of the plaintiff in error tending to show, not only that there was such a discovery within the boundaries of each.of the lode claims here in controversy years before the entries thereon and the placer locations under which the defendants in error claim, but that for many years those lode claims had been possessed, worked, and claimed as lode mining ground adversely to all the world except the government. There was, therefore, ample basis in the evidence for some of the instructions to the jury requested by the plaintiff in error on the question of such adverse holding by him and his predecessors in interest, all of which the court below refused to give, to which rujing exceptions were duly reserved. That error was thereby committed, requiring a reversal of the judgments appealed from, we think clear. We need only cite the case of 420 Mining Co. v. Bullion Mining Co., 9 Nev. 241, where the Supreme Court of Nevada said: “To avoid the statute of limitations, it is claimed by appellant that this-action is brought under an act of Congress, and hence that the limitations provided for by the statute of this state do not apply. The act of Congress provides that, where an adverse claim is filed within the time and in the manner specified in said act, certain proceedings ‘shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within 30 days after filing his claim, to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession and prosecute the same' with reasonable diligence to final judgment, and a failure to do so shall be a waiver of his adverse claim.’ The act fur — 93 — fher provides that ‘after such judgment shall have been rendered, the party entitled to the possession of the claim * * * may * * * file a certified copy of the judgment roll with the register of the land office,’ and upon compliance with this and other provisions in said act ‘a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess.’ 1J. S. Stats. 1872, p. 91, § 7. Congress did not, hy the passage of this act, or by the acts passed July 26, 1866, and July 9,1870, confer any additional jurisdiction upon the state courts. The object of the law, as we understand it, was to require parties protesting-against the issuance of a patent to go into the state courts of competent jurisdiction, and institute such proceedings as they might under the different forms of action, therein allowed, elect, and there try ‘tlie rights of possession’ to such claim and have the question determined. The acts of Congress do not attempt to confer any jurisdiction, not already possessed hy the state; courts, nor to proscribe a different form of action. If the parties protesting are in possession of the ground in dispute, they can bring their action under section 256 of the Civil Practice Act (Stats. 1869, p. 239), or, if they have been ousted from the possession, they could bring their action of ejectment; and in cither action ‘the rights of possession’ to such claim could he finally settled and determined. We are of opinion that when the action is brought, whatever may be its character, it must he tried by the same rules, governed by the same principles, and controlled by the same statutes that apply to siich actions in our state courts, irrespective of the acts of Congress. The fact, as found by the court, that the defendant had been in the actual, exclusive, and uninterrupted occupation and possession of all the mining ground in dispute, claiming title thereto adversely to plaintiff, for more than seven years prior to the commencement of this suit constitutes a complete bar to this action. 1 Oomp. Laws, 243, 244, §§ 4, 5. To have maintained any action in our state courts ‘to try the rights of possession’ to a mining claim, the plaintiff must have shown that it, or those through or from whom it claims, ‘were seized or possessed of such mining claim, or were the owners thereof, according to the laws and customs of the district embracing the same, within two years before the commencement of such action.’ 1 Oomp. L. 1019, § 4.” Besides the testimony of the witnesses regarding the essential discovery within each of the lode claims and regarding the adverse holding and working of the disputed ground by the plaintiff in error and his predecessors in interest for much more than the period prescribed by the statute of limitations, each of the notices of location of the lode claims in controversy, duly recorded, expressly recited, as has been said, the fact of such discovery. Such recital wc held in the case of Vogel v. Warsing, 146 Fed. 949, 951, 77 C. C. A. 199, 201, “creates a presumption of discovery of mineral and of a valid location.” See, also, Harris v. Equator Mining & Smelting Co. (C. C.) 8 Fed. 863; Cheesman v. Shreeve (C. C.) 40 Fed. 791; Cheesman v. Hart (C. C.) 42 Fed. 98. The appeals are dismissed, and in each case the judgment is reversed, and the cause remanded to the court below for a new trial.