The title of a locator to a mining claim located under §
2322, Rev.Stat., is not only property, but property which, in
addition to being sold, transferred and mortgaged, is also capable
of being inherited without infringing the title of the United
States. Under the law of Arizona, in force at the time, real
property upon which a judgment was a lien included mining
claims.
Page 212 U. S. 390
Title to a mining claim acquired by sale under lien of judgment
is subject to forfeiture if conditions subsequent, such a the doing
of necessary work, are not performed.
Black v. Elkhorn, 163 U. S. 445,
holding that widow's dower did not attach under the law of Montana
to the mining claim involved in that case, distinguished.
This is an appeal from a judgment of the Supreme Court of the
Territory of Arizona affirming a judgment of the District Court of
Yavapai County in that territory quieting the title to several
mining claims involved in the action.
The appellant brought the action for such purpose under the
provision of a statute permitting it, against Morrison, the
appellee, together with Elmer R. McDowell and Thomas D. Bennett.
McDowell and Bennett made default, but Morrison, the appellee, as
the assignee of Bennett, duly filed his amended answer, which
contained a special denial that the appellant was the owner of the
property described in her complaint, and he then set up that he was
the assignee of one Thomas D. Bennett of a certain judgment, which
was recovered in the same court in which this proceeding or action
was brought, which judgment was for the sum of $2,730.25, and was
against the two individuals, Tom Taylor and E. G. Wager, which was
docketed December 30, 1899. The case was submitted to the trial
court on an agreed statement of facts, and the trial resulted in a
judgment quieting plaintiff's interest in the undivided
three-fourths of the claim as against the defendants, and quieting
appellee Morrison's title as against plaintiff and the other
defendants in the remaining one-fourth of such claim.
An appeal taken to the supreme court of the territory resulted
in the affirmance of the judgment, and the plaintiff then took an
appeal to this Court upon a statement of facts found by the supreme
court.
From this statement of facts, it appears that the mining claims
in controversy are unpatented lode claims. The judgment in Bennett
v. Wager was rendered December 23, 1899,
Page 212 U. S. 391
and docketed December 30, 1899. On December 23, the day of the
recovery of the judgment, and continuously thereafter until August
27, 1900, the actual co-owners and possessors of the mining claims
were one D.C. Wood, the owner of a one-half interest, and E. G.
Wager and Reese M. Ling, each a one-quarter interest. It is in
regard to Wager's interest in the claims at that time, December 30,
1899, that the controversy has arisen.
On August 27, 1900, Wood, Wager, and Ling, by mining deed,
conveyed their interest in the claims to the McCabe Extension
Mining & Milling Company, a corporation, and contemporaneously
with the delivery of that deed the grantors placed the corporation
in the actual and exclusive possession of the claims. The
corporation and its assignee, the plaintiff, ever since that time
have been in the actual and exclusive possession of the claims, and
have performed each and every year since the year 1900 to the date
of the findings, which were filed January 23, 1907, annual labor in
excess of the amount of $100 per annum upon each of said claims,
and the corporation has, during its possession of the claims,
expended more than $40,000 in improvements in and on the mines.
Neither Wager, Wood, nor Ling has been in possession of the
claims since August 27, 1900, when they conveyed them to the
corporation.
The appellant claims under conveyance executed pursuant to
judicial sales made under writs issued on a judgment obtained
against the corporation subsequently to the conveyance made to it,
and appellant is in the present actual and exclusive possession of
the claims. Under one of these sales, a deed was executed and
delivered to her on October 26, 1904, which, it is said, related
back to November 6, 1902, the date of the filing of the lien of the
judgment against the company. On November 29, 1904, an execution
was issued on the judgment in Bennett v. Wager, and levied upon the
interest which Wager had in the claim at the time judgment was
recovered against him (December 30, 1899), and the sale was made
under
Page 212 U. S. 392
that levy, December 22, 1904, to the appellee Morrison, and a
certificate of sale was issued to him for that interest.
Page 212 U. S. 393
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
The appellant asserts that no lien was created against the
interest of E. G. Wager (the judgment debtor) in the unpatented
claims in controversy by reason of the docketing of that judgment
on the thirtieth of December, 1899. She also asserts that there was
an abandonment in fact and in law by Wager of his interest in the
mining claims, by reason of the making and delivery of the deed by
himself and others, dated August 27, 1900, to the corporation
mentioned, and by contemporaneously therewith putting the company
in the peaceful and exclusive possession of the claims. She further
urges that the levy made under the execution of November 27, 1904,
issued upon the judgment in Bennett v. Wager, created no special
lien against the property that related back to the docketing of the
judgment, and that the sale of Wager's interest in the mining
claims under that execution to the appellee vested in him no
interest or title prior or paramount to the interest, possession,
and title of the appellant, and generally the appellant asserts
that the judgment appealed from is contrary to law, in that an
unpatented mining claim is not the subject of a judgment lien, and
if it were, the lien was destroyed by the judgment debtor's
abandonment of the claim on August 27, 1900.
The statute under which the question arises is Act No. 50 of the
Session Laws of 1891 of the Territory of Arizona, page 50, §
4, which reads as follows:
"Every such judgment when so docketed shall, for a period of
five years from the date of the rendition thereof, be a lien on the
real property in the county where the same is docketed,
Page 212 U. S. 394
except the homestead, of every person against whom such judgment
shall be rendered and docketed, and which he may have at any time
thereafter within said period of five years."
Now at the time of the docketing of this judgment, E. G. Wager,
the judgment debtor, was the owner of the undivided one-quarter
interest, of record, in the mining claims named in the complaint,
and the appellee contends that these unpatented mining claims were
real property within the meaning of the above statute, for the
purpose of establishing a judgment lien thereon.
The character of the possession of mining claims and the title
under which they are held has been frequently adverted to in the
decisions of this Court, as well as in the many decisions of the
courts of what may be termed "mining" states and territories.
By § 2322 of the United States Revised Statutes it was
enacted that
"the locators of all mining locations heretofore made or which
shall hereafter be made on any mineral vein, lode, or lead,
situated on the public domain, their heirs and assigns . . . shall
have the exclusive right, possession, and enjoyment of all the
surface included within the lines of their location, and of all
veins, lodes, and ledges throughout their entire depth."
2 Comp.Stat. 1425.
In
Forbes v. Gracey, 94 U. S. 762,
94 U. S. 767, it is
said the claims of this nature
"are the subject of bargain and sale, and constitute very
largely the wealth of the Pacific Coast states. They are property
in the fullest sense of the word, and their ownership, transfer,
and use are governed by a well defined code or codes of law, and
are recognized by the states and federal government. This claim may
be sold, transferred, mortgaged, and inherited, without infringing
the title of the United States."
In
Belk v. Meagher, 104 U. S. 279, it
was held that actual possession of the claim was not essential to
the validity of the title obtained by a valid location, and, until
such location was terminated by abandonment or forfeiture, no right
or claim to the property could be acquired by an adverse entry
thereon with
Page 212 U. S. 395
a view to the relocation thereof. Mr. Chief Justice Waite, in
delivering the opinion of the Court, referred to the language used
in
Forbes v. Gracey, supra, and reaffirmed the same.
In
Manuel v. Wulff, 152 U. S. 505,
152 U. S. 510,
MR. CHIEF JUSTICE FULLER, in delivering the opinion of the Court,
again repeated the language in
Forbes v. Gracey, supra,
and again reaffirmed its correctness (at page
152 U. S.
510). To the same effect is
Elder v. Horseshoe
Mining & Milling Co., 194 U. S. 248,
and see Elder v. Wood, 208 U. S. 226.
We thus find that the title of a locator to a mining claim is
not only property, but it is property which, in addition to being
sold, transferred, and mortgaged, is also capable of being
inherited, without in any manner infringing the title of the United
States.
The Legislature of Arizona, by a statute which was in force in
December, 1899, defined the meaning to be given the term "real
property" in the construction of statutes, as coextensive with
lands, tenements, and hereditaments. This statute is said to have
been repealed September 1, 1901, before the execution was issued in
this case, and was reenacted March 5, 1907. Session Laws 1897, c.
10, p. 8, § 5.
That legislature, also, in the title of the Revised Statutes
relating to conveyances, provided that "the term
land,'as used
in this title, is declared to mean and include mines and mining
claims," and the statute relating to fraud and fraudulent
conveyances (Arizona Statutes, paragraph 2708) reads: "The term
`real estate,'; as used in this title, shall be deemed to include
mines and mining claims." By paragraph 2948 of the same statutes,
it is enacted that "the words `real property,' whenever used in
this title, is taken to include mines." The statute relates to the
limitation of actions, and provides for the remedies which may be
enforced in mining claims.
It is not contended that these special statutes, except the
first thus referred to, relate to or affect judgment liens on
mining property as real property, but they show the general intent
of the legislature to include claims of such a nature in
Page 212 U. S. 396
speaking of real estate or real property. But the statute
defining the meaning of the term "real property" was in force when
the Wager judgment was obtained, and the statute made property that
might be inherited, real property, upon which a judgment would be a
lien. Taking the decisions of the courts, some of which are above
referred to, and considering the general nature and meaning of the
legislation of the territory, we conclude that the words "real
property" covered mining claims. The lien of the judgment therefore
existed when the conveyance by Wager was made in August, 1900, and
that conveyance would be subject to that lien.
Of course, if the conditions subsequent, as the doing of the
necessary work, were not performed, the title would be subject to
forfeiture.
The case of
Black v. Elkhorn, 163 U.
S. 445, has been referred to as in some way inconsistent
with the decision of the court below in this case. All that was
there decided was that the plaintiff, widow of the locator, was not
entitled to dower under the statutes of Montana on that subject,
with reference to a mining claim under the statutes of the United
States.
This Court held that, under the federal statute, no right was
granted to the wife of a locator, either present or contingent, and
that the government, being the owner of the land, could impose its
own terms upon which to grant any right, whether of possession or
of purchase. The character of the interest of a locator in a mining
claim, as held in the cases above cited, was referred to and was
not questioned. The case turned upon the peculiar nature of the
widow's claim for dower in such a case, and that such interest did
not attach to mining claims. That, as the government still retained
the title, the locator did not take such an estate in the claim
that dower attached to it.
The judgment under which the appellee claims having become a
lien under the Arizona statute upon being docketed in December,
1899, the subsequent conveyance of the interest of the judgment
debtor to a third party did not clear the property
Page 212 U. S. 397
from the lien of the judgment, but the same was in force at the
time of the issuing of the execution upon it and of the sale under
such execution.
The judgment of the Supreme Court of Arizona was right, and
is
Affirmed.
