New Dunderberg Min. Co. v. Old

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court. The patent under which the defendants in error hold grants all the lodes or veins of ore the apexes of which are within the exterior boundaries of the Frostberg mining claim which it conveys;- and . the apex of the lode or vein in issue, at the place here in controversy, is within those boundaries. The patent to the Dunderberg claim, under which the plaintiff in error claims the title to the demanded premises, is couched in the same terms; but the apex of the vein in controversy, at the place in dispute, is not within the exterior boundaries of that claim. Upon the face of the patents, therefore, the charge of the court below, that the defendants in error held the title to the property, was right. But both these claims were located under “An act granting the right of way to ditch and canal owners over the public lands, and for other purposes,” approved July 26, 1866 (14 Stat. 251, c. 262). That act gave the lawful claimant who complied with the provi- ' sions of the statute the. right .to the single lode or vein which he — 601 — found, and to no oilier. It is insisted that under tlie local laws óf Colorado, to which this act of congress referred, the claimant was not required to mark the boundaries of bis claim upon the surface of the ground when he located it, but was permitted to hold and follow the lode for. a dista,nee of 1,400 feet in any direction in which it lay from his discovery shaft, on condition that he should mark bis claim at the point of discovery by a substantial stake, post, or stone monument, having inscribed thereon the name of the discoverer and the name of the lode or vein. 14 Stat. 251, §§ 1, 2; Laws Colo. 1866, p. 72, §§ 1, 2; 2 Mills’ Ann. St. Colo. 1891, §3142. Them was evidence at the trial that the lode in the possession of the plaintiff in error, within the boundaries of the Frost-berg claim, was the same lode which was originally discovered and located in the Dunderberg claim in 1867. The act of congress of. May 10, 1872 (17 «tat. 91, 94, c. 152, §§ 3, 9; Bev. St. §§ 2322, 2328), under which the patents to both claims were issued, provided “that .the locators of all mining locations heretofore made, * * where no adverse claim exists at the passage of this actj * * * shall have the exclusive right: of possession and enjoyment of all the surface included within the lines of tlieir locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of sue,it surface lines extended downward vertically'’ (section 3); that sections 3, 2, 3, 4, and 6 of the act. of July 2(5, 3866, he repealed, but that such repeal should not. affect existing rights; that applications for patents for mining claims then pending should be prosecuted to a final decision in the general land office; and that, where adverse rights were not affected thereby, patents should issue in pursuance of the act of May 30, 3872. The contention of the counsel for the plaintiff in error is that the grant in the Frostberg patent of every vein whose apex lies within its exterior boundaries was void, except as to the original Frostberg vein discovered (herein, because that claim was located under the act of 1866, which allowed the discoverer but: a single lode or vein; and the location of the Dunderberg vein in 1867 constituted a claim adverse to the Frostberg, when the act of 3872 was passed, and in that way deprived the officers of the land department of all power to make a grant to the owner of the Frostberg of any other vein than that which he originally discovered. If this x>roposition is sound, the plaintiff in error was entitled to the vein on the premises in dispute, if it was in fact the original Dunderberg vein, and was not the original Frostberg vein, and the court should have submitted this question to the jury. It refused to do so, and the correctness of this ruling is the most important question in this cast;. If it be conceded, however, that there; was an adverse claim to the property described in tlie Frostberg patent, when the act of May 10, 3872. was passed, that fact could not render void any part of The grant made; by that patent. Congress did not remit the determination of the questions whether or n.ot there was an adverse claim to the Frostberg, or whether the patent to it under the act of 3872 would affect adverse rights, to the courts of law or of equity, in the first instance. On tlie other band, it vested tlie officers of — 602 — the land department with the judicial power, and imposed upon them the duty to decide these questions, and to issue the patent to the. Frostberg mining, claim in accordance with the decision which they should render. It is true that a patent issued by the land department of the United States to land over which that department has no power of disposition, and no jurisdiction to determine the claims of applicants for, under the acts of congress, is absolutely void, and conveys no title whatever. Land the title to which has passed from the government of the United States to another before the claim on which the patent was based was initiated, land reserved from sale and disposition for military and other like purposes, land reserved by a claim under a Mexican or Spanish grant -sub judice, and land for the disposition of which acts of congress had made no provision, is of this character. U. S. v. Winona & St. P. R. Co., 32 U. S. App. 272, 15 C. C. A. 96, 67 Fed. 948; Polk v. Wendall, 9 Cranch, 87; Stoddard v. Chambers, 2 How. 284, 318; Easton v. Salisbury, 21 How. 426, 432; Reichart v. Felps, 6 Wall. 160; Best v. Polk, 18 Wall. 112, 117, 118; Sherman v. Buick, 93 U. S. 209; Iron Co. v. Cunningham, 15 Sup. Ct. 103; Doolan v. Carr, 125 U. S. 618, 624, 8 Sup. Ct. 1228; Wright v. Roseberry, 121 U. S. 488, 519, 7 Sup. Ct. 985; Davis’ Adm’r v. Weibbold, 139 U. S. 507, 528, 11 Sup. Ct. 628; Deffeback v. Hawke, 115 U. S. 392, 406, 6 Sup. Ct. 95. But the Frostberg claim was not of this character. Jurisdiction of the subject-matter is the power to deal with the general abstract question. The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry, not whether its conclusion in the course of it is right or wrong. Foltz v. Railway Co., 19 U. S. App. 576, 8 C. C. A. 635, and 60 Fed. 316. The act of July 26, 1866, provided that any claimant of a lode or vein might file a diagram of the same, so extended laterally or otherwise as to conform to the local laws, customs, and rules of miners, and might enter such tract, and receive a patent therefor, with a right to the vein or lode; that upon the filing of this diagram and the posting of the same and of a notice of intention to apply for a patent, the register of the local laud office should post and publish the notice for 90 days; that, if no adverse claim had then been filed, the surveyor general should, on the application of the party, survey the premises, make a plat thereof, designate the number and description of the location and the improvements and character of the vein, and indorse his approval thereon; and that, upon the j filing of this plat and of proof that the diagram and notice had been duly posted, the register should transmit the plat, survey and description' to the general land office, and the applicant should receive a patent for the lode and land claimed. 14 Stat. 251, 252, c. 262, §§ 2, 3. The claimant of the Frostberg lode had done all this before the act of 1872 was passed. He had designated the boundaries' of his claim. It had been surveyed and marked on the ground. His notice of intention to apply for a patent for it had been given. No adverse claim had been filed in the land office, and on February 27,1872, he had entered it for patent. When the act of 1872 was passed, he was already entitled to the Frostberg — 603 — lodo, and to tlie surface described in his claim under the act of 1.866. Section 3 of the act of May 10, 1872 (17 Stat. 91, c. 152), provided that all locators of mining locations theretofore or thereafter made, where no adverse claim existed at the time of the passage of that act, should have the exclusive right to all veins or lodes whose apexes were within their surface boundaries. Section 9 of that act provided that sections 1, 2, 3, á, and 6 of the act of July .26, 1866 (14 Stat. 251, c. 262), were repealed; that such repeal should not, affect existing rights; and that “applications for patents for mining claims now pending may be prosecuted to a final decision in the general land office, but, in such cases where adverse rights are not affected thereby, patents may issue in pursuance of the provisions of this act.” These provisions of the acts of congress leave no doubt that the land department had jurisdiction to hear and determine the claims of applicants for and to dispose of this mining claim, and every vein or lode whose apex lay inside of its surface lines extended downward vertically. When the act of May 10, 1872, was passed, the Frostberg claim had been located, and the application for the patent to it was pending. That act, by its very terms, imposed upon the officers of the land department: the duty of hearing the evidence upon, and deciding, the questions whether or not any claim adverse to that location existed at the time of its passage, and whether or not any adverse rights would he affected by issuing the patent according to the provisions of the act of 1872. These questions were necessarily determined by the officers of that department before they issued this patent. The patent which the department issued in 1876 was a judgment of that tribunal that no'such claim did exist on May 10, 1872, and that no adverse rights would be affected by issuing it in accordance witli the provisions of the act of that date. It is at the same time a judicial determination of these questions, and a conveyance of the legal title to every lode or vein whose apex lay within the surface boundaries of the patented claim extended downward vertically. If this action of the land department resulted from fraud, mistake, or erroneous views of the law, a court of equity might set aside the patent, or declare it to be held in trust for him who had a better right to it. Bogan v. Mortgage Co., 27 U. S. App. 346, 11 C. C. A. 128, and 63 Fed. 192; U. S. v. Winona & St. P. R. Co., 32 U. S. App. 272, 15 C. C. A. 96, 107, and 67 Fed. 948, and cases cited. But in this action at law it is, like the judgments of other special tribunals vested with judicial power, impervious to collateral attack. In the case of Steel v. Refining Co., 106 U. S. 447, 451,1 Sup. Ct. 389. which was an action of ejectment in which the plaintiffs’ title depended on a patent issued upon a claim for mineral lands within the limits of a town site, and the defense was that the patent was void, because the land was not mineral, and the patentee was not a citizen, and had not declared his intention to become such, the supreme court held that proof of these facts was inadmissible to attack the patent, and declared that the land department necessarily “must consider and pass upon the qualifications of the applicant, the acts he has performed to secure the title, the nature of the — 604 — land, and whether it is of the class that is open to sale. Its judgment in these matters is that of a special tribunal, and is unassailable, except by direct proceedings for its annulment or limitation." To. the same effect are Heath v. Wallace, 138 U. S. 573, 575, 11 Sup. Ct. 380; Barden v. Railroad Co., 154 U. S. 288, 14 Sup. Ct. 1030; and Davis’ Adm’r v. Weibbold, 139 U. S. 507, 524, 11 Sup. Ct. 628. In French v. Fyan, 93 U. S. 169, 172, the supreme court held that parol evidence was inadmissible to show that land patented to the state of Missouri as swamp and overflowed land was not in fact swamp or overflowed land, and that on that account the patent was void. In Ehrhardt v. Hogaboom, 115 U. S. 67, 69, 5 Sup. Ct. 1157, that court held, on the other hand, that parol evidence was inadmissible to show that land patented to a pre-emptor was swamp or overflowed land, and was therefore included in the grant to the state of California, and that the patent to the pre-emptor was void on that account.. A patent to land or mineral lodes, over which the land department of the United States has the power of disposition, and the jurisdiction to determine the claims of applicants for, under the acts of congress, is impregnable to collateral attack, whether the decision of the department on which it is based was right or wrong, and the patent conveys the legal title to the propertv to the patentee. U. S. v. Winona & St. P. R. Co., supra; Minter v. Crommelin, 18 How. 87, 89; U. S. v. Schurz,102 U. S. 378, 401: French v. Fyan, 93 U. S. 169, 172; Quinby v. Conlan, 104 U. S. 420; Smelting Co. v. Kemp, 104 U. S. 636, 645-647; Steel v. Refining Co., 106 U. S. 447, 450, 452,1 Sup. Ct. 389; Heath v. Wallace, 138 U. S. 578, 585, 11 Sup. Ct. 380; Knight v. Association, 142 U. S. 161, 212, 12 Sup. Ct. 258; Noble v. Railroad Co., 147 U. S. 174, 13 Sup. Ct. 271; Barden v. Railroad Co., 154 U. S. 288, 14 Sup. Ct. 1030. If a more careful analysis of the authorities upon and a more exhaustive consideration of these questions are sought, they will be found in U. S. v. Winona & St. P. R. Co., 32 U. S. App. 272, 15 C. C. A. 96, and 67 Fed. 948, which was decided by this court in 1895. Our conclusion is that a patent issued under and in accordance with the provisions of the act of May 10, 1872 (17 Stat. 91, c. 152; Rev. St. §§ 2322, 2328), to a mining claim located before the passage of that act, conveys the legal title to every vein or lode of mineral whose apex is within its surface lines extended downward vertically, and is not subject to collateral attack in an action at law. either on the ground that there was a claim adverse to that patent when the act of 1872 was passed, or on the ground that adverse rights were affected by its issue under the provisions of that act. Moreover, neither the plaintiff in error nor its immediate or remote grantor was ever in a position to attack the Frostberg patent, either at law or in equity, at any time after the patent to the Dunderberg claim was issued, on September 16, 1873. Conceding, but not deciding, that the locator of the Dunderberg claim, in 1867, then had the right, under the act of 1866, to follow the Dunderberg lode in any direction from his discovery shaft in which it lay, he renounced that right when he availed himself of the benefits of the act of 1872, and accepted his patent under that statute. That act provided that he — 605 — might obtain a patent according to its terms, or that he might retain the rights he had acquired under the act of 1866. He could not obtain a patent, however, under either act, until he located the boundaries of bis claim upon the surface of the ground, and limited his claim by those boundaries. We have already seen that the act of 1866 required such a location before a patent could issue. The act of lc872 required the applicant for a patent to file his application with a plat or field notes of the claim made by the surveyor general, showing accurately the boundaries of his claim. It required him to post a copy of the plat and of the notice of his application for a patent on the land claimed, and it required him to file a copy of this notice and proof of the posting in the local land office. The register of that office was then required to post and publish notice of the application for 60 davs, and thereupon a patent issued, if no adverse claim was filed. 17 Stat. 91, 92, c. 152, § 6; Rev. St. § 2325. That act, provided that the patentee under it should have the right: to all lodes and veins whose apexes were within the surface boundaries of his claim. The patentee of the Dunderberg lode located his claim, and accepted a patent for it, under the terms of this act. Tie located it upon a tract of land which included his discovery shall, and was 6,000 feet long from north to south, and 70 feet wide 1'rom east, to west. It may be that he could have held the Dunderberg lode within the surface boundaries of the Frostberg claim if he had so located his claim upon the surface of the ground that the apex of the Dunderberg lode within the Frostberg claim would have been within the exterior boundaries of the Dunderberg claim upon the surface. But he did not do so. He chose to so locate it that hfr- lode crossed both the side lines of his claim diagonally on its strike and passed out of the claim more than 600 feel before it cntciv 1-m Frostberg claim. The claim of his grantee now is that it can’renounce this location and the limitations of the law and the patent upon which it is based, and follow the lode wherever ii, leads, as the discoverer might have done wlien he first found it, and before be located his claim to the surface at all. It bases this claim upon the provision of section 9 of the act of May 10, 1872 (17 Stat. 91, c. 152), that, the repeal of sections 1, 2, 6, 4, and 6 of the act of July 26. 1866 (chapter 262, 14 Stat. 251), shall not affect existing rights. But it was not the repeal of these sections of the act: of 1866 that affected the rights of the owner of the Dunderberg lode. That repeal did not deprive him of any right he had to follow his lode into the Frost-berg claim. It was bis location, entry, and patent of Ms claim, from which the lode departed on its strike 800 feet before it reached the Frostberg. that affected his rights. The act of 1872 required the applicant for a patent to locate his claim on the surface of the ground as a condition precedent to its issue, and it declared what rights he should acquire thereby..for the express purpose of defining, fixing, and limiting his claims and his rights. TJnder that act, the location of a mining claim on the surface of the ground, and its entry for parent, is a notice to the government and the public that the owner claims all the exclusive rights and privileges granted by’the act; but it is no less a notice, and a legal notice, that he renounces and aban — 606 — dons to the government all other rights and privileges pertaining to his discovery of the lode for which he asks the patent. It would work manifest injustice to permit one who has located, and excluded all others from a claim of the full size allowed by the acts of congress, and from all veins whose apexes lay within its surface, to follow the lode upon the discovery of which that claim was based at» right angles to his location, and without its side lines, for a distance equal to the length of his claim. In our opinion, the acts of 1866 and 1872 confer no such privilege. . A claimant who discovered and located a lode mining claim under the act of 1866 renounces and abandons all rights and privileges to follow his lode on its course beyond the exterior lines of his patented claim, when he locates it upon the surface of the ground, enters it, and accepts a patent for it under the act of May 10, 1872. Since the side lines of the Dunderberg claim crossed the course of the strike of the vein, they constitute end lines; and, under the patent to it, the owner of that claim was without right to the possession of that lode outside of those lines, after he obtained his patent, in 1873. Mining Co. v. Tarbet, 98 U. S. 463; Iron Silver-Mining Co. v. Elgin Mining & Smelting Co., 118 U. S. 196, 207, 6 Sup. Ct. 1177; King v. Mining Co., 152 U. S. 222, 228, 14 Sup. Ct. 510. The owner of the Dunderberg claim, therefore, had no right or interest in any lode or vein in the demanded premises at any time after 1873, and the plaintiff' in error acquired no such right or interest from him. It acquired none by its deeds of the Subtreasury or Silver Chain mining claims, because those claims were not initiated until after the Frostberg claim was located and patented. All its claims, therefore, are under grantors, immediate and remote, not one of whom was in privity with the United States, or had acquired any right to the property in controversy when it was patented to the grantors of the defendants in error in 1876. This fact is fatal to its claim to avoid the patent to the Frostberg claim, in equity as well as at law. One who was not in privity with the United States, and who had acquired no right to the land or lode when it was patented to another, cannot successfully attack such a patent, either at law or in equity. Deweese v. Reinhard, 19 U. S. App. 698, 706, 10 C. C. A. 55, 59, 60, and 61 Fed. 777, 781; Hartman v. Warren, 40 U. S. App. 245, 22 C. C. A. 30, and 76 Fed. 157,163. It is assigned as error that the court admitted in evidence testimony given, and leases made by the defendants in error and their grantors in 1882, 1884, and 1888, which tended to show that they were in possession and exercising acts of ownership over the demanded premises subsequent to the sale of the Dunderberg, Subtreasury, and Silver Chain claims by Old, in 1879; and that it also admitted in evidence two letters from the defendant in error Robert O. Old, one to B. C. Catron, superintendent, and the other to C. A. Cameron, secretary, of the Dunderberg Company, which were written ip 1883, and in which Old asked permission to use the Tyler crosscut and shaft to enable him to lease, a part of the Frostberg lode, commencing at or near the line between that lode and the property of the Dunderberg Company, and running easterly 250 feet, together with — 607 — the answer of Catron that he might use the crosscut, but could not use the shaft, and the answer of Cameron that he had referred the matter to Catron and the trustees of his company. But this evidence was introduced to rebut the plea and proof of license and estoppel which the plaintiff in error had made. The Dunderberg Company had answered that it entered within the boundaries of the Frost-berg claim by the express license and assent of the defendant in error Robert O. Old; (hat when he sold the Dunderberg, Hubtreasury, and Silver Chain mining claims to its grantor, Brown, he had represented to him that he thereby sold and caused to be conveyed to him, and that he thereby delivered, all the ore in the Dunderberg lode, whether within the side lines of the Frostberg claim or not, and that the Dunderberg Company had followed and worked the Dunderberg vein for 300 or 400 feet within the lines of the Frostberg claim, and had been in notorious and uninterrupted possession of the Dunderberg vein, both within and without the lines of the Frostberg claim, from May 29, 1879, until the commencement of the action, with the full knowledge and assent of the defendants in error. These allegations had been denied. The Dunderberg Company had introduced evidence which tended to sustain them,—notably the testimony of Mr. Catron, its superintendent, that a lessee of Old, who held a lease of 200 feet within the Frostberg lines on May 29, 1874, surrendered it, and said that he to'ok it of Old on condition that he should deliver possession to Brown if the sale of that date was consummated; the testimony of the same witness that in 1882 he stopped the shipment of some ore which had been taken from the Frost-berg claim by miners who claimed to have a lease upon it from Old, that he notified Old of this fact, and the latter denied that he had given them any lease, and said that that was not his ground; and the testimony of Brown that, when he purchased, Old took him down into (.he Tyler crosscut, and delivered to him the possession of a drift, where men were working, which extended into the Frostberg claim a distance of from 40 to 60 feet. In fact, the plaintiff in error tendered the issue of its exclusive possession of the ore in the Dunderberg vein within the Frostberg claim, from 1879 until the action was commenced, with the assent of the defendants in error, and it introduced evidence to sustain its side of that issue. It could- not have been irrelevant to this issue for the defendants in error to prove chat during this period they were in possession of tin; premises; that they leased them to miners, who removed the ore; and that they notified the plaintiff in error that they were doing so, and obtained permission to use its crosscut for that purpose. That appears to have been the only effect of the evidence that is here challenged, and, in our opinion, it was not incompetent to rebut the testimony which the plaintiff in error had introduced in support of the issue of license, estoppel, and possession which it had tendered. The judgment below must be affirmed, with costs; and it is so ordered.