As against the purchaser of interests in mining claims after the
location certificates were recorded, the original locators were
held by the state court estopped to deny the validity of the
locations. The question of estoppel is not a federal question.
The state court further held that, where the annual assessment
work had not been done on certain mining claims, a co-tenant could
not, on the general principles applicable to co-tenancy, obtain
title against his co-tenants by relocating the claims.
This was also not a federal question in itself, and the
contention that the state court necessarily decided the original
mining claims to be in existence at the time of the relocation, in
contravention of provisions of the Revised Statutes properly
interpreted, could not be availed of under § 709, as no right
or title given or secured by the act of Congress in this regard was
specially set up or claimed.
Patrick B. McCarthy commenced this action in the Circuit Court
of Pennington County, South Dakota, against William
Page 181 U. S. 270
B. Franklin and others, to determine their adverse claims in and
to certain mining property. Before the trial, William B. Franklin
died, and his heirs and his administrator, Edward W. Speed, were
substituted.
The circuit court filed findings of fact and conclusions of law,
and entered judgment for defendants on the facts so found.
The facts found by the trial court are thus stated in the
opinion of the supreme court:
"On September 16, 1882, Jacob F. Reed and William Franklin
located a portion of the ground in controversy as the Reed placer
mining claim. From the date of location until 1892, Reed and
Franklin were in actual, notorious, and peaceable possession of the
claim, were acknowledged and reputed to be its owners, and during
each year performed the required development work. They applied for
patent November 23, 1892. Final entry was made March 13, 1893.
There was no application for a lode on the placer site aside from
the placer claim. The boundaries of the claim as patented coincide
with its boundaries as staked upon the ground at time of location.
January 25, 1888, Reed, Franklin, Thomas C. Blair, and Frank Eaton
marked the boundaries of Tin Bar No. 1 claim upon the ground with
stakes, as required by law, posted a discovery or location notice
thereon, and within sixty days thereafter recorded a location
certificate, but did no other act of location at that time. The
location or discovery notice of this claim was posted inside the
boundaries of the Reed placer claim, and the point claimed as
discovery on the Tin Bar No. 1 is the same point at which the
notice was posted. No labor has been performed or improvement made
upon the claim, except about four days' work in 1889 and about four
days' work in 1891; such work not exceeding $14 in each of those
years. There was no agreement on the part of defendants Blair or
Franklin with plaintiff to perform labor or make improvements on
Tin Bar No. 1 in 1893 or 1894, and no contractual relation existed
between them in regard to such claim when the Holy Terror lode
claim was located. January 25, 1888, Blair and Eaton did the same
acts of location with respect to Tin Bar No. 2 that were done in
respect to Tin Bar No. 1. No labor has been performed or
improvement
Page 181 U. S. 271
made upon Tin Bar No. 2, except about four days' work in 1891,
of value not exceeding $14. There was no agreement on the part of
defendants Franklin or Blair with plaintiff to perform labor or
make improvements upon Tin Bar No. 2 in 1892, 1893, or 1894, and
there was no contractual relation existing between them in regard
to such claim during those years. Defendant Franklin located the
lode claims Holy Terror and Keystone No. 4, on June 28, 1894, and
September 20, 1894, respectively, and the law has been complied
with, so far as it relates to those claims, since the date of each.
Defendants are the owners of the Holy Terror and Keystone No. 4,
save for the rights of the plaintiff in this action. No adverse was
filed by plaintiff or other owners of either Tin Bar No. 1 or 2 to
the application for patent to the Reed placer claim. At and prior
to the time of the application for patent to the placer claim,
there was no known lode or vein thereon within the boundaries of
either Tin Bar claim of such character as to render the ground more
valuable because of its presence, or to justify the expenditure of
money for either exploitation or development. There was no
application for patent to any lode or vein included in the placer
claim in the application for patent to the placer claim. The Holy
Terror embraces 1.62 acres of the ground covered by Tin Bar No. 1,
and Keystone No. 4 embraces 2.71 acres of the ground covered by Tin
Bar No. 2. In 1888, Eaton conveyed an undivided one-fourth interest
in Tin Bar No. 1 and Tin Bar No. 2 to one George Williams, who, in
the same year, conveyed the same interest to plaintiff and one
Michael McGuire. On April 22, 1890, Eaton conveyed an undivided
one-fourth interest in Tin Bar No. 2 to defendant Franklin, and
Blair conveyed a like interest therein to Jacob F. Reed. When this
action was commenced, Franklin (since deceased) and defendants
Blair, Fayel, and Amsbury each owned an undivided one-fourth
interest in the Holy Terror claim and an undivided
seven-thirty-sixths interest in Keystone No. 4. Blair acquired his
interest in the Holy Terror claim with full knowledge of whatever
rights the plaintiff had, if any. During 1891, Blair and Franklin
discovered a well defined ledge of mineral-bearing rock in place,
carrying gold, upon Tin Bar No. 2, the point of discovery
Page 181 U. S. 272
being outside the limits of Reed placer claim. The location
notice on Tin Bar No. 1 was posted upon a well defined ledge of
rock carrying tin, but plaintiff and defendants had no knowledge of
the existence of tin or other valuable deposit therein until during
the trial of this action in the court below."
Plaintiff appealed to the Supreme Court of South Dakota from the
judgment and from an order denying a new trial, and the judgment
was reversed and a new trial ordered. 11 S.D. 362. Subsequently a
rehearing was had, and judgment was directed to be entered below
for plaintiff on the findings of fact for one-eighth interest in
and to so much of the ground covered by the Holy Terror claim and
the Keystone No. 4 claim as was embraced by Tin Bar No. 1 and Tin
Bar No. 2. 12 S.D. 7. This was accordingly done by the circuit
court, and this writ of error was thereupon allowed.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
It is objected that jurisdiction of this writ of error cannot be
maintained because no title or right was specially set up or
claimed within section 709 of the Revised Statutes. But plaintiffs
in error contend that, while they admit that they made no specific
reference to the statutes of the United States, their pleading,
nevertheless showed that they asserted title through valid mining
claims duly located, and denied the title of defendant in error on
the ground that the locations under which he claimed had become
forfeited and abandoned, and that that was a sufficient compliance
with the requirements of section 709.
We cannot concede that this is so in view of the rule expounded
in
Oxley Stave Co. v. Butler County, 166 U.
S. 648, and
Page 181 U. S. 273
many other cases, and are the less disposed to that conclusion,
as the case might well be held to have been decided on grounds
independent of federal questions.
Counsel for plaintiffs in error assert in their printed brief
that the following questions were presented by the findings of
fact:
"First. Whether Tin Bar No. 1 claim, in its entirety, was
extinguished and lost to the owners thereof by the patenting of the
Reed placer claim."
"Second. Whether the Tin Bar No. 2 claim, to the extent that it
conflicted with the Reed placer, was extinguished and lost to the
owners thereof by the patenting of the placer claim."
"Third. Whether, notwithstanding the failure of the owners of
the Tin Bar claims to perform thereon the work required by section
2324, Rev.Stat., those claims continued to be valid and subsisting
claims, and the locators thereof or their grantees, cotenants in
respect thereto; so that one of such locators or grantees could not
make a new location, for his own benefit solely, and include
therein a portion of the ground covered by said Tin Bar claims,
although, by reason of such failure to work, said claims had become
'open to relocation in the same manner as if no location of the
same had ever been made.'"
And they insist that these questions could only have been
determined by the application of the provisions of chapter 6 of
Title 32 of the Revised Statutes correctly interpreted,
particularly of section 2324.
*
Page 181 U. S. 274
But the Supreme Court of South Dakota held that plaintiffs in
error, defendants below, were not in a position to allege or prove
against defendant in error, plaintiff below, that the declarations
contained in the recorded location certificates were false.
In its first opinion, after saying that there was "certainly no
reason for holding that the owner of an unpatented placer claim
cannot locate a lode claim, or consent to such a location being
made by others, within the boundaries of his placer claim," and
also that
"if the Tin Bar claims were located when application for patent
to the placer was made, they were not affected thereby, no
application for lodes having been included in the application for
the placer patents,"
the court proceeded to hold that the conduct of the original
locators was such as to induce "persons who might examine the
records to believe that they were the owners of properly located
mining claims," and that the rights of defendant in error in this
action depended
"upon the facts which the conduct of the locators induced him to
believe existed when his interest in the claims was acquired. It
would be a travesty on justice to permit the locators to now impair
such rights by asserting that their recorded
Page 181 U. S. 275
representations were false. Neither of the defendants is in any
better position than the original locators, and all are estopped
from denying the validity of the Tin Bar locations."
In the opinion on rehearing. the court said that the findings of
the circuit court showed
"that Reed, Franklin, Blair, and Eaton recorded a location
certificate for Tin Bar No. 1, and that Blair and Eaton recorded a
location certificate for Tin Bar No. 2, in the office of the
register of deeds in the proper county, before plaintiff purchased
his interest in such claims; that neither defendant is in any
better position than the original locators; and, whether or not
plaintiff examined and relied upon the records, we think defendants
are estopped from denying the validity of these locations."
If, as thus held, defendants below could not deny the validity
of these locations, the estoppel covered the objection to the right
to locate a lode claim within a placer claim previously located,
and the objection based on the supposed effect of the patenting of
the placer claim, as raised on this record. And whether a party is
estopped or not is not a federal question.
Gillis v.
Stinchfield, 159 U. S. 658;
Pittsburgh Iron Co. v. Cleveland Iron Mining Co.,
178 U. S. 270.
Having determined that, for the purposes of this action, the Tin
Bar claims were to be regarded as valid in their inception, the
supreme court considered the controversy as to the right of a
cotenant to relocate a mining claim when the annual assessment work
has not been done, and obtain title as against his cotenants.
The court held that the relation of cotenant existed between
McCarthy and Franklin when Franklin located the Holy Terror and
Keystone claims; that original locators may resume work at any time
before relocation; that Franklin's acts of relocation did not
terminate the fiduciary relation between himself and McCarthy, and
said:
"We think the circuit court should have adjudged the defendants
to be trustees, and have enforced the trust. This conclusion is not
precluded by the language of the federal statutes. They provide
that, upon a failure to comply with required conditions as to labor
or improvements, 'the claim or mine upon which such failure
occurred shall be open to relocation
Page 181 U. S. 276
in the same manner as if no location of the same had ever been
made.' Rev.Stat. U.S. § 2324. It is contended that if Congress
intended to have the relocator regarded as a trustee under any
circumstances, such intention would have been expressed in the
statute. The contention is not tenable. The trust results from the
fiduciary relation of the parties, and not from the operation of
the statute."
The state court thus disposed of this branch of the case upon
general principles of law, and its decision did not rest on the
disposition of a federal question.
Counsel argue, however, that the court, before reaching the
question of cotenancy, was compelled to hold, and did hold, that
the Tin Bar claims existed at the time of the location of the Holy
Terror and Keystone claims, and that, in so holding, the court
necessarily decided against the contention of plaintiffs in error
that the Tin Bar claims had absolutely ceased to exist by virtue of
the statute properly interpreted.
But was that contention so put forward as to constitute the
special assertion of a right given or protected by the act of
Congress? The only approach to such an assertion was the statement
of plaintiffs in error in their amended answer that defendant in
error intended to set up certain rights under the Tin Bar claims,
and that these claims were abandoned and forfeited before the Holy
Terror and Keystone claims were located. We think these general
allegations fall short of that definite claim of a right or title
under a statute of the United States which section 709 requires,
and that, as the record stands, this Court would not be justified
in holding that the state court denied a right or title specially
set up as secured by the statute when it determined this particular
question on the general principles of law recognized as prevailing
in South Dakota.
Writ of error dismissed.
*
"SEC. 2324. The miners of each mining district may make
regulations not in conflict with the laws of the United States, or
with the laws of the state or territory in which the district is
situated, governing the location, manner of recording, amount of
work necessary to hold possession of a mining claim, subject to the
following requirements: the location must be distinctly marked on
the ground so that its boundaries can be readily traced. All
records of mining claims hereafter made shall contain the name or
names of the locators, the date of the location, and such a
description of the claim or claims located by reference to some
natural object or permanent monument as will identify the claim. On
each claim located after the tenth day of May, eighteen hundred and
seventy-two, and until a patent has been issued therefor, not less
than one hundred dollars' worth of labor shall be performed or
improvements made during each year. On all claims located prior to
the tenth day of May, eighteen hundred and seventy-two, ten
dollars' worth of labor shall be performed or improvements made by
the tenth day of June, eighteen hundred and seventy-four, and each
year thereafter, for each one hundred feet in length along the vein
until a patent has been issued therefor; but where such claims are
held in common, such expenditure may be made upon any one claim,
and upon a failure to comply with these conditions, the claim or
mine upon which such failure occurred shall be open to relocation
in the same manner as if no location of the same had ever been
made, provided that the original locators, their heirs, assigns, or
legal representatives, have not resumed work upon the claim after
failure and before such location. Upon the failure of any one of
several co owners to contribute his proportion of the expenditures
required hereby, the co-owners who have performed the labor or made
the improvements may at the expiration of the year, give such
delinquent co-owner personal notice in writing or notice by
publication in the newspaper published nearest the claim, for at
least once a week for ninety days, and if at the expiration of
ninety days after such notice in writing or by publication, such
delinquent should fail or refuse to contribute his proportion of
the expenditure required by this section, his interest in the claim
shall become the property of his co-owners who have made the
required expenditures."
