Where the necessary effect of the ruling of the state court is
to deny to a locator of a mineral claim the protection of the
relocation provision of 2324, Rev.Stat., if that section justified
the claim based upon it, or if the record show that the trial court
considered that the plaintiff specially claimed and was denied
right under § 2326, Rev.Stat., authorizing an adverse of an
application for a patent to mineral land, a federal question is
involved and the motion to dismiss the writ of error will be
denied.
Under § 2326, Rev.Stat., where there was a conflict of
boundaries between a senior and junior location, and the senior
location has been forfeited, the person who made the relocation of
such forfeited claim has not the right in adverse proceedings to
assail the junior locator in respect to the conflict area which had
previously existed between that location and the abandoned or
forfeited claim.
A senior locator possessed of paramount right in mineral lands
may abandon such right and cause them to enure to the benefit of
the applicant by failure to adverse, or after adverse, by failure
to prosecute such adverse. The provision of § 2326, Rev.Stat.,
as construed in this case, so qualify §§ 2319 and 2324,
Rev.Stat., as to prevent mineral land of the United States which
have been the subject of conflicting locations from becoming
quoad the claim of third parties unoccupied mineral land
by the mere forfeiture of one of such location.
Quaere, whether a deputy mineral surveyor is prohibited
by § 452 Rev.Stat. from making the location of a mining claim,
not decided.
Uhlig and McKernan, two of the defendants in error, by locations
alleged to have been made on January 1, 1889, asserted ownership of
two adjacent mining lode claims, designated respectively as the
Uhlig No. 1 and the Uhlig No. 2, situated in the West Mountain
mining district, in Salt Lake County, State of Utah. In the month
of August, 1898, the parties named filed in the proper land office
an application for patent for said claims. During the publication
of notice of the filing of the application, Giovanni Lavagnino,
plaintiff in error, as the alleged owner of a mining lode claim
called the Yes You Do, filed an adverse claim to a portion of the
land embraced in each of the Uhlig locations, which it was
asserted
Page 198 U. S. 444
overlapped the Yes You Do. Thereupon, pursuant to the
requirements of section 2326 of the Revised Statutes, this action
was brought in a District Court of Salt Lake County, Utah, to
determine in whom was vested the title and right of possession to
the conflicting areas, which, in the case of the Uhlig No. 1,
claim, amounted to 6.374 acres and in the No. 2 to 1.441 acres.
In substance, Lavagnino alleged in his complaint that, at the
time of the location of the Uhlig claims, there was a subsisting
valid location known as the Levi P. lode claim, which included
within its areas the land in dispute in the action; that the
necessary labor required by the statutes of the United States was
performed upon the claim up to and including the year 1896; that no
actual labor or improvements were made upon the claim for the year
1897, and, in consequence, all the land included within the Levi P.
location became forfeited, and acquired the status of unoccupied
and mineral lands of the United States, and that, while such was
the status of the land, on January 1, 1898, one J. Fewson Smith,
Jr., the grantor of Lavagnino, relocated the Levi P. claim as the
Yes You Do, and that thereafter all the requirements necessary to
be done had been performed, and the Yes You Do was then a valid and
subsisting location.
Subsequently the St. Joe Mining Company was substituted in the
stead of Uhlig as a party defendant.
On the trial, it was shown that, at the time Smith located the
Yes You Do claim, he was a deputy mineral surveyor for the district
in which such mining claim was situated, and that he made the
survey and plat for the protest which had been filed in the land
office against the Uhlig application for patent. On the offer, as
evidence for the plaintiff, of the notice of location of the Yes
You Do claim and the deed from Smith to Lavagnino, objection was
made to their admission, and the offered evidence was excluded upon
the ground that the asserted location by Smith of the Yes You Do
was not valid, because, at the time of the making thereof, Smith
was a deputy
Page 198 U. S. 445
mineral surveyor, and was prohibited by the terms of section 452
of the Revised Statutes of the United States from making the
location of a mining lode claim. For the same reason, the trial
court sustained an objection to evidence offered on behalf of the
plaintiff tending to show that, at the time the Uhlig claims were
located, the ground covered by such locations was then covered by
prior locations made at an earlier hour on the same day, and was
consequently not subject to location as unoccupied mineral lands of
the United States. That one of said locations -- the Levi P. --
embraced the premises in dispute, and was a subsisting location
until forfeited by failure to perform the annual work for the year
1897; that the relocation of said claim as the Yes You Do was made
on January 1, 1898, and that the annual work and other steps
required by law to be done in connection with the claim had been
performed.
Following the introduction of testimony tending to show the
validity of the Uhlig locations, testimony was introduced on behalf
of the plaintiff in respect to the location and working of the Levi
P. claim, but, on the offer of the Levi P. location notice, the
trial court sustained an objection thereto, and ruled that, as the
Yes You Do was not a valid location, there were no adverse claims
before the court, and as a result it was to be conclusively
presumed that there did not exist any location which in anywise
conflicted with the Uhlig claims sought to be patented.
The court made findings of fact in which,
inter alia,
it was recited that the plaintiff at the trial had not introduced
any legal or competent evidence to sustain the issues on his part,
and consequently that "upon the trial, on motion of counsel for
defendants, the said action of the plaintiff against the defendant
was, and is hereby, dismissed." The facts were then found in
respect to the location and working of the Uhlig claims, and, as
conclusions of law, the court held that the action against the
defendants should be dismissed with costs, and that the defendant
the St. Joe Mining Company, and the defendant Alexander McKernan,
were entitled to purchase
Page 198 U. S. 446
from the United States of America the said Uhlig claims and the
whole thereof, and were also entitled to a decree quieting their
title to the premises in dispute. From a decree entered in
conformity to these conclusions, an appeal was prosecuted to the
Supreme Court of Utah, and that court affirmed the decree. 26 Utah
1. A writ of error was thereupon sued out from this Court.
Page 198 U. S. 448
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
The Supreme Court of Utah was of the opinion that, by force of
section 452 of the Revised Statutes of the United States (copied in
the margin [
Footnote 1]), J.
Fewson Smith, Jr., being
Page 198 U. S. 449
deputy mineral surveyor, was disqualified from locating the Yes
You Do claim; that, in consequence, the attempted location of such
claim was void, and that the plaintiff, Lavagnino, acquired no
rights by the conveyance of the claim to him by Smith. It was next
decided that, as the plaintiff had failed to show any right to the
disputed premises, he became a stranger to the title, and was
without right to contest the claim of the defendant. The
correctness of the decree entered by the trial court was also held
to result from the terms of section 2332 of the Revised Statutes of
the United States and section 2859 of the Revised Statutes of Utah,
both of which sections are copied in the margin. [
Footnote 2]
Adopting the finding of the trial court that the Uhlig claims
were valid locations, attention was called to the fact that those
claims were located on January 1, 1889, while the Yes You Do was
located more than eight years thereafter --
viz., on
January 1, 1898. A mining claim was declared to be a possessory
right and real estate under the statutes of Utah, and it was held
that one Mayberry, the locator of the Levi P. claim, not having
instituted a suit to recover possession of the premises in dispute
within seven years after the location of the Uhlig claims, was
barred of all right to such premises by the terms
Page 198 U. S. 450
of section 2859 of the Revised Statutes of Utah, and that his
right to contest the title of the defendants to the conflict areas
"was also waived by his failure to adverse the application for a
patent of the Uhlig Nos. 1 and 2." The court added:
"In view of these facts, the plaintiff, even if J. Fewson Smith,
Jr., had not been a deputy United States mineral surveyor, as the
location of the 'Yes You Do' was not made until eight years after
the possession of the Uhlig Nos. 1 and 2 was begun, could not avail
himself of any rights which the said Mayberry may have had."
This latter ruling of the Supreme Court of Utah forms the basis
for the first of two grounds of a motion to dismiss this writ of
error, which motion will now be passed upon.
The first is, in substance, that, assuming that there was a
federal question determined by the Supreme Court of Utah, its
decision was not necessary, and whether it was or not, jurisdiction
does not exist, because there was another ground upon which the
decree of the trial court was affirmed, nonfederal in its nature,
and broad enough to maintain the judgment --
viz., the
ruling of the bar of the statute of limitations. The second ground
is thus stated:
"That, under the decision of the Supreme Court of the State of
Utah, this court has no jurisdiction to hear and determine the
question raised under section 452, Rev.Stat.U.S., for the reason
that the plaintiff in error has not brought himself within the
provisions of section 709, Rev.Stat.U.S."
We are of opinion that neither of the grounds urged in support
of the motion to dismiss are tenable. As to the first, it is true
that the Supreme Court of Utah decided that, even although J.
Fewson Smith, Jr., had been qualified to locate the Yes You Do
claim, the location was invalid because made more than seven years
after the location of the Uhlig Nos. 1 and 2, when, it was held,
the bar of the statute of limitations was operative. But this
amounted to saying that, even although the plaintiff was entitled
to adverse the Uhlig claims, he could not be heard to rebut the
evidence for the defendants
Page 198 U. S. 451
as to the possession under the Uhlig locations, by evidence as
to the possession taken and had under the Levi P. location.
Plainly, we think the ruling, denied to the grantee of the Yes You
Do, under the hypothesis that they existed, rights asserted by him
under section 2324 of the Revised Statutes, authorizing the
relocation of forfeited claims. It is evident from the record that
the finding of the trial court as to the time when possession was
taken of the Uhlig Nos. 1 and 2 claims, and the duration of
possession, was based entirely upon the evidence introduced on
behalf of the owners of those claims. The trial court treated as
irrelevant and immaterial evidence tending to show that the
premises in dispute were embraced in the Levi P. location, and that
possession of that claim was held and retained from a time at least
contemporaneous with the initiation of the Uhlig location, and
almost up to the location of the Yes You Do, as a relocation of the
Levi P. Under such circumstances, a decision that the bar of the
seven years' statute of limitations was operative, upon the
assumption that the locator of the Yes You Do was entitled to
adverse conflicting locations, amounted to deciding that Lavagnino
could not show that the premises in dispute were unoccupied mineral
lands of the United States at the time of the location of the Yes
You Do, and, as bearing upon the validity of the relocation of the
Levi P., the facts as to the location, possession under, and
forfeiture of the Levi P. claim. The necessary effect of this
ruling, as before stated, was, we think, to deny to the locator of
the Yes You Do the protection of the relocation provisions of
section 2324 of the Revised Statutes, if that section justified the
claim of right based upon it.
As to the second ground, the record clearly shows that the trial
court considered that the plaintiff was specially claiming rights
under section 2326 of the Revised Statutes, authorizing an adverse
of an application for a patent to mineral lands, and the Supreme
Court of Utah necessarily acted upon that assumption in the opinion
by it delivered. The motion to dismiss is therefore overruled.
Page 198 U. S. 452
The question then is did the Supreme Court of Utah err in
affirming the decree of the trial court?
As we have seen, the Supreme Court of Utah, in part, rested its
conclusion upon the want of power in a deputy mineral surveyor to
make the location in question, in consequence of the prohibition
contained in section 452 of the Revised Statutes. A consideration
of that subject, however, will be unnecessary if it be found that,
even if a deputy mineral surveyor was not within the restriction of
the section referred to, nevertheless the rights asserted under the
Yes You Do location in the adverse proceeding were not paramount to
the rights arising from the Uhlig location. We therefore come at
once to a consideration of that question, and, of course, in doing
so assume for argument sake that the section of the Revised
Statutes relied upon and the rules and regulations of the Land
Department did not prohibit a deputy mineral surveyor from making a
location of mineral land. And, moreover, in considering the
question which we propose to examine, we concede for the sake of
argument that the Levi P. location, of which the Yes You Do
purported to be a relocation, was prior in date to the location of
the Uhlig Nos. 1 and 2, and that there were areas in conflict
between them. With all these concessions in mind, the question yet
remains whether Smith and his transferee, in virtue of the location
of the Yes You Do, stood in such a relation as to enable them, or
either of them, to successfully adverse the application for patent
made by the owners and possessors of the Uhlig locations.
It is undoubted that this Court in a number of cases has
declared that the rights of a subsisting senior locator of mineral
land are paramount to those of the owner of a junior location, so
far as said junior location conflicts in whole or in part with the
prior location.
Clipper Mining Co. v. Eli Min. & Land
Co., 194 U. S. 220,
194 U. S. 226,
and cases cited. It is elementary also that the power conferred by
section 2324 of the Revised Statutes to relocate a forfeited mining
claim does not place the locator in privity of title with the owner
of the prior and
Page 198 U. S. 453
forfeited location. The statute merely provides that when a
forfeiture has been occasioned,
"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."
The question then is, where there was a conflict of boundaries
between a senior and junior location and the senior location has
been forfeited, has the person who made the relocation of such
forfeited claim the right, in adverse proceedings, to assail the
title of the junior locator in respect to the conflict area which
had previously existed between that location and the abandoned or
forfeited claim?
To say that the relocator had such right involves, necessarily,
deciding that, as to the area in conflict between the junior and
the senior locations, the junior could acquire no present or
eventful right whatever, and that, on the abandonment or forfeiture
of the senior claim, the area in conflict became, without
qualification, a part of the public domain. In other words, the
proposition must come to this: that as the junior locator had
acquired no right whatever, present or possible, by his prior
location, as to the conflicting area, he would be obliged, in order
to obtain a patent for such area, to initiate in respect thereto a
new right, accompanied with a performance of those acts which the
statute renders necessary to make a location of a mining claim.
The deductions just stated are essential to sustain the right of
the relocator of a forfeited mining claim to contest a location
existing at the time of the relocation on the ground that such
existing location embraced an area which was included in the
forfeited and alleged senior location, for the following reasons:
if the land in dispute between the two locations, which antedated
the relocation, did not, on the forfeiture of the senior of the two
locations, become unqualifiedly a part of the public domain, then
the right of the junior of the two
Page 198 U. S. 454
would be operative upon the area in conflict on a forfeiture of
the senior location. If it had that effect, it necessarily was
prior and paramount to the right acquired by a relocation of the
forfeited claim.
But we do not think that the deductions which we have said are
essential to sustain the right of the relocator to adverse, under
the circumstances stated, can be sustained consistently with the
legislation of Congress in relation to mining claims. Indeed, we
think such a construction would abrogate the provisions of section
2326 of the Revised Statutes, which is as follows:
"SEC. 2326. 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 Office, and a
patent shall issue thereon for the claim, or such portion thereof
as the applicant shall appear,
Page 198 U. S. 455
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,
whereon the register shall certify the proceedings and judgment
roll to the Commissioner of the General Land Office, as in the
preceding case, 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."
This section plainly recognizes that one who, pursuant to other
provisions of the Revised Statutes, has initiated a right to a
mining claim, has recorded his location notice, and performed the
other acts made necessary to entitle to a patent, and who makes
application for the patent, publishing the statutory notice, will
be entitled to a patent for the land embraced in the location
notice, unless adverse rights are set up in the mode provided in
the section. Thus, clearly providing that, if there be a senior
locator possessed of paramount rights in the mineral lands for
which a patent is sought, he may abandon such rights and cause them
in effect to inure to the benefit of the applicant for a patent by
failure to adverse, or, after advertising, by failure to prosecute
such adverse.
It cannot be denied that, under section 2326, if, before
abandonment or forfeiture of the Levi P. claim, the owners of the
Uhlig locations had applied for a patent, and the owners mineral
lands for which a patent is sought, of the Levi P. had not adversed
the application, upon an establishment of a
prima facie
right in the owners of the Uhlig claims, an indisputable
presumption would have arisen that no conflict claims existed to
the premises described in the location notice.
Gwillim v.
Donnellan, 115 U. S. 45,
115 U. S. 51. And
the same result would have arisen had the owner of the Levi P.
adversed the application for a patent based upon the Uhlig
locations, and failed to prosecute, and waived such adverse
claim.
Page 198 U. S. 456
In both of the supposed instances, the necessary consequence
would have been to conclusively determine in favor of the
applicant, so far as the rights of third persons were concerned,
that the land was not unoccupied public land of the United States,
but, on the contrary, as to such persons, from the time of the
location by the applicant for the patent, was land embraced within
such location, and not subject to be acquired by another person.
And this result, flowing from the failure of the owner of a
subsisting senior location to adverse an application for patent by
the owner of an opposing location, or his waiver, if an adverse
claim is made, must, as the greater includes the lesser, also arise
from the forfeiture of the claim of the senior locator before an
application for patent is made by the conflicting locator, and the
consequent impossibility of the senior locator to successfully
adverse after the forfeiture is complete.
Of course, the effect of the construction which we have thus
given to section 2326 of the Revised Statutes is to cause the
provisions of that section to qualify sections 2319 and 2324,
thereby preventing mineral lands of the United States which have
been the subject of conflicting locations from becoming,
quoad the claims of third parties, unoccupied mineral
lands by the mere forfeiture of one of such locations.
In text books (Barringer & Adams, Law of Mines and Mining,
p. 306; Lindley on Mines, 2d ed. pp. 650, 651), statements are
found which seemingly indicate that, in the opinion of the writers,
on the forfeiture of a senior mining location,
quoad a
junior and conflicting location, the area of conflict becomes, in
an unqualified sense, unoccupied mineral lands of the United
States, without inuring in any way to the benefit of the junior
location. But, in the treatises referred to, no account is taken of
the effect of the express provisions of Rev.Stat. section 2326.
Moreover, when the cases to which the text writers referred as
sustaining the statements made are examined, it will be seen that
they were decided either before the passage of the adverse claim
statutes
Page 198 U. S. 457
of 1872, or concerned controversies between the senior and
junior locators, or depended upon the provisions of state statutes.
How far such statutes would be controlling we are not called upon
to say, as it is not claimed that there is any statute in Utah in
any way modifying the express provisions of section 2326.
As the issue raised by the complaint in this action concerned
only the conflict areas, and, on the trial, the invalidity of the
Uhlig locations, in respect to the premises in dispute, was
attempted to be established solely by proof that the Levi P. was an
antecedent location, and embraced the grounds in conflict, it
follows, from the opinion which we have expressed, that at the time
when Smith located the Yes You Do claim as a relocation of the Levi
P. claim, the land embraced within the location notices of the
Uhlig claims, and upon which the Yes You Do overlapped, was not
unoccupied mineral lands of the United States, and was consequently
not subject to be relocated by Smith, even under the mere
hypothesis which we have indulged in, that, as a deputy mineral
surveyor, he was not debarred from making the location. For this
reason, the judgment of the Supreme Court of Utah was right, and it
must therefore be
Affirmed.
MR. JUSTICE BREWER concurs in the result.
MR. JUSTICE McKENNA dissents.
[
Footnote 1]
Section 452, Revised Statutes of the United States.
"The officers, clerks, and employees in the General Land Office
are prohibited from directly or indirectly purchasing or becoming
interested in the purchase of any of the public land, and any
person who violates this section shall forthwith be removed from
his office."
[
Footnote 2]
Section 2332, Rev.Stat. United States:
"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 statute 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 be
sufficient to establish a right to a patent thereto under this
chapter in the absence of any adverse claim, but nothing in this
chapter shall be deemed to impair any lien which may have attached
in any way whatever to any mining claim or property thereto
attached prior to the issuance of a patent."
Section 2859, Rev.Stat.Utah:
"No action for the recovery of real property, or for the
possession thereof, shall be maintained, unless it appear that the
plaintiff, his ancestor, grantor, or predecessor, was seized or
possessed of the property in question within seven years before the
commencement of the action."
