Locators of mining claims have the exclusive right of possession
of all the surface so long as they make the improvements or do the
annual assessment work required by Rev.Stat. § 2324. To
convert this defeasible possessory right into a fee simple, the
locator must comply with the provisions of Rev.Stat. §§
2325, 2333.
The entry by the local land officer issuing the final receipt to
a locator is in the nature of a judgment
in rem, and
determines the validity of locations, completion of assessment
work, and absence of adverse claims.
The holder of a final receipt is in possession under an
equitable title, and, until it is lawfully cancelled, is to be
treated as though the patent had been delivered to him.
Dahl v.
Rahnheim, 132 U. S. 260.
While the General Land Office has power of supervision over acts
of local officers and can annul entries obtained by fraud or made
without authority of law, it may not arbitrarily exercise this
power, and if a cancellation is made on mistake of law, it is
subject to judicial review when properly drawn in question in
judicial proceedings.
Under the policy of the land laws, the United States is not an
ordinary proprietor selling land and seeking the highest price, but
offers liberal terms to encourage the citizen and develop the
country.
Where there has been compliance with the substantial
requirements of the land laws, irregularities are waived or
permission given to cure them, and so
held that, under the
circumstances of this case, as there had been proper posting under
Rev.Stat., §§ 2325 and 2333, the fact that the original
affidavit of posting was made before an officer residing outside
the district and not within the district, as required by §
2335, did not render the entry void. The defect was curable, and
cancellation of entry for that defect alone was improper.
The yielding of a locator holding a final receipt to an
erroneous ruling does not destroy the rights with which he has
become vested by full compliance with the requirements of Rev.Stat.
§ 2325.
Quaere whether § 2135, Comp.Laws New Mexico,
imposing upon a
Page 233 U. S. 251
locator of mineral land the burden of proving that he has
performed the annual assessment work, is void as in conflict with
the federal statutes.
See Hammer v. Gareld, 130 U.
S. 29.
Quaere whether an affidavit of work offered for one
purpose by an adverse claimant can be used for another purpose by
the locator as substantive evidence in the case.
A locator acquires no rights by locating on property that had
previously been, and then was, segregated from the public
domain.
16 N.M. 721 reversed.
In proceedings brought by McKnight to try the right of
possession to conflicting mining locations, it appeared that the
defendant, the El Paso Brick Company, was in possession of the
Aluminum, International, and Hortense claims, constituting what was
known as the Aluminum group of placer mines. It held under
locations made prior to January, 1903. In 1905, the company decided
to apply for a patent to the land, which embraced about 411 acres.
Accordingly, on August 2, 1905, it filed with the register of the
land office at Las Cruces, Dona Ana County, New Mexico, an
application for a patent, together with an affidavit (executed
before an officer residing outside of the mining district) that
notice of the application had been posted on the land. These papers
were filed with the register, who gave the further notice required
by statute. No protest or adverse claim was filed by any person.
The Brick Company paid $1,027.50, being the purchase price fixed by
Rev.Stat. § 2333, and on October 23, 1905, the land officers
allowed an entry on which the receiver issued a final receipt --
the material portions of which were as follows:
"United States Land Office at Las Cruces, N. Mexico."
"October 23, 1905"
"Received from the El Paso Brick Company, El Paso, Texas, the
sum of Ten hundred and twenty-seven and 50-100 dollars, the same
being payment in full for the area embraced in that mining claim
known as the 'Aluminum
Page 233 U. S. 252
Placer Group' unsurveyed . . . embracing 410.90 acres in the
Brickland Mining District, in the County of Dona Ana and Territory
of New Mexico, as shown by the survey thereof."
"$1,027.50 Henry D. Bowman, Receiver"
The entry and this final receipt
prima facie entitled
the company to a patent, which, however, was not issued because
various parties filed protests with the land commissioner in which
it was asserted that the Brick Company's locations were originally
void, or, if valid, had been forfeited. It was also contended that
the company was not entitled to a patent because the affidavit
showing the posting of the notice on the land had not been signed
before an officer residing within the land district, as provided in
Rev.Stat. § 2335, which declares that
"all affidavits required to be made under this chapter [mining
laws] may be verified before any officer authorized to administer
oaths within the land district where the claims may be
situated."
Notice of these protests was given to the Brick Company, which
was allowed sixty days within to show cause why the entry should
not be cancelled. "In response, numerous affidavits and exhibits
designed to overcome the objections were filed on behalf of the
company," among which was a
"supplementary affidavit with reference to such posting and such
claim, which was in compliance with the laws of the United States,
and was verified before a proper officer."
On September 4, 1906, the commissioner ruled that the entry was
fatally defective because the original affidavit as to posting had
not been executed before an officer residing in the land district.
From that ruling the Brick Company appealed.
There was a hearing before the Assistant Secretary of the
Interior, who, on September 9, 1908, rendered a decision, 37 L.D.
155, in which, after discussing the provisions
Page 233 U. S. 253
of Rev.Stat. §§ 2325, 2335, and quoting from various
rulings of the Land Department and courts, he held that the fact
that the affidavit of posting had been signed before an officer
residing outside of the district was a fatal defect which
invalidated the entire proceeding. Among other things, he said:
"The defect is not a mere irregularity which may be cured by the
subsequent filing of a properly verified affidavit. The statutory
provisions involved are mandatory. Their observance is among the
essentials to the jurisdiction of the local officers to entertain
the patent proceedings. The requisite statutory proof as to posting
not having been theretofore filed, the register was without
authority to direct the publication of the notice or otherwise
proceed, and the notice, although in fact published and posted,
being without the necessary legal basis, was a nullity and
ineffectual for any purpose. The patent proceedings therefore fall,
and the entry will be cancelled."
The record further recites that, on November 24, 1908, the Brick
Company waived its right to petition for a review of such decision
and "thereupon such decision and the cancellation of said entry
became final and said entry was cancelled on the records of the
land office." On the next day, November 25, 1908, the Brick Company
filed at the local land office a second application for patent.
McKnight thereupon filed an adverse claim in which he set up that
the land described in the Brick Company's application embraced
within its limits the Lulu and Agnes claims which had been located
by him in April, 1905, and relocated in May, 1906, at which time he
also located the Tip Top, Lynch, and Aurora claims. The patent
proceedings in the local land office were stayed in order that
McKnight might, as provided in Rev.Stat. § 2326, bring a suit
in a court of competent jurisdiction to try the right of
possession.
On January 2, 1909, McKnight brought such suit in the
Page 233 U. S. 254
District Court of Dona Ana County, New Mexico. It was tried
November 8, 1909, before a judge without a jury. At the hearing,
McKnight introduced the certificates of the locations described in
his complaint, and evidence tending to show that he had done the
required assessment work on his five claims. In support of his
contention that the Brick Company had forfeited its rights by
failing to do the annual assessment work, the record recites that
he offered
"certified copies of proof filed by the Brick Company in June,
1905, and December, 1906, for the purpose of showing, in connection
with the testimony of the witness [the keeper of the county
records] that there had been no satisfactory proof of labor filed
for any year previous to 1906."
These certified copies consisted of affidavits by the president
of the Brick Company that it had done more than $5,000 worth of
work on its locations during each of the years 1903, 1904, and
1906. There was no ruling by the court limiting the effect of the
affidavits as evidence, but it appears that McKnight contended
that, as the names of the persons actually doing the work were not
stated in the affidavit, and as the first of the affidavits was
made in April, 1905, the burden of showing that the work had
actually been done for 1903 and 1904 was cast on the Brick Company
by virtue of the provisions of § 2315 of the Compiled Laws of
New Mexico.
* The Brick
Company, on
Page 233 U. S. 255
the other hand, appears to have contended that this territorial
statute was not only void as being in conflict with the federal
statutes, but that the affidavits offered by plaintiff showed on
their face that many times the amount of assessment work required
had been done in 1903, 1904, and 1906, thus segregating the land
from the public domain and rendering McKnight's subsequent
locations nugatory.
At the conclusion of the evidence, the court took the case under
advisement, and on December 17, 1909, rendered a judgment for
McKnight which was affirmed (16 N.M. 721) by the Supreme Court of
New Mexico. The case was then brought here on appeal.
MR. JUSTICE LAMAR, after making the foregoing statement,
delivered the opinion of the Court.
McKnight brought suit against the El Paso Brick Company to try
the right of possession to conflicting mining locations. In his
complaint, he asserted his own title and attacked that of the
defendant under locations older in date, but which he claimed had
been forfeited by failure to do the annual assessment work for 1903
and 1904, thereby leaving the land open to the locations made by
McKnight in 1905 and 1906. The Brick Company, while insisting that
the plaintiff's own evidence proved that the assessment
Page 233 U. S. 256
work had in fact been fully performed, relied on the legal
effect of the company's application for a patent to the land and
the final receipt issued to it by the receiver of the local land
office in October, 1905. To this the plaintiff replied that the
entry on which the receipt issued had been cancelled on the ground
that the patent proceedings were absolutely void because the
statutory affidavit of posting had not been filed.
1. Locators of mining claims have the exclusive right of
possession of all the surface included within the exterior limits
of their claims so long they make the improvements or do the annual
assessment work required by the Revised Statutes, § 2324. The
law, however, provides (Rev.Stat. §§ 2325, 2333) a means
by which the locator can pay the purchase price fixed by statute
and convert the defeasible possessory title into a fee simple.
Sixty days' notice must be given in order that all persons having
any adverse claim may be heard in opposition to the issue of a
patent. That notice is threefold. It must be given by publication
in the nearest newspaper, by posting in the Land Office, and by
posting on the land itself, and it is provided in the statute that
this latter fact may be proved by the affidavit of two persons
before an officer residing within the land district (Rev.Stat.
§ 2335). All persons having adverse claims under the mining
laws may be heard in objection to the issuance of a patent. But
(§ 2325)
"if no adverse claim shall have been filed . . . , it shall be
assumed that the applicant is entitled to a patent upon the payment
. . . [of the price fixed by statute] and that no adverse claim
exists, and thereafter no objection from third persons to the
issuance of a patent shall be heard, except it be shown that the
applicant has failed to comply with the terms of this chapter
[relating to mineral lands]."
2. In the present case, the Brick Company's application for a
patent was filed, each of the several forms of notice
Page 233 U. S. 257
required by statute was given, no adverse claim was filed, the
purchase price was paid to the government, and a final receipt was
issued by the local land office. The entry by the local land
officer issuing the final receipt was in the nature of a judgment
in rem (Wight v. Dubois, 21 F. 693), and determined that
the Brick Company's original locations were valid and that
everything necessary to keep them in force, including the annual
assessment work, had been done. It also adjudicated that no adverse
claim existed and that the Brick Company was entitled to a
patent.
From that date, and until the entry was lawfully cancelled, the
Brick Company was in possession under an equitable title, and to be
treated as "though the patent had been delivered to" it.
Dahl
v. Raunheim, 132 U. S. 262.
And when McKnight instituted possessory proceedings against the
Brick Company, the latter was entitled to a judgment in its favor
when it produced that final receipt as proof that it was entitled
to a patent and to the corresponding right of an owner.
Nor should the result have been different when the record showed
that the entry and final receipt, properly issued, had been
improperly cancelled. It is true that the order of the Department
was a denial of the patent, but it was not a conclusive
adjudication that the Brick Company was not entitled to a patent,
nor could such an order deprive the Brick Company of rights vested
in it by law. For while the General Land Office had power of
supervision over the acts of the local officers, and could annul
entries obtained by fraud or made without authority of law, yet, if
the Department's cancellation was based upon a mistake of law, its
ruling was subject to judicial review when properly drawn in
question in judicial proceedings, inasmuch as the power of the land
office is not unlimited, nor can it be arbitrarily exercised so as
to deprive any person of land lawfully entered and paid for.
Cornelius
v.
Page 233 U. S. 258
Kessel, 128 U. S. 461;
Parsons v. Venzke, 164 U. S. 89.
3. So that the case involves a determination of the single
question as to whether the patent was properly refused by the Land
Department because of the objection that the Brick Company had
failed to comply with the terms of the law relating to mineral
land. Rev.Stat. § 2325. That can be determined by an
inspection of the record, in which the order appears. It shows that
the cancellation of the entry was not based on the Brick Company's
failure to do the annual assessment work, or to give the proper
notice, or to pay the statutory price, but solely for the reason
that the affidavit of posting was executed before an officer who
resided outside of the land district.
That decision (37 L.D. 155), though supported by some
Departmental rulings of comparatively recent date, was in conflict
with the established practice of the Land Department, and was
expressly and by name overruled, on July 29, 1911, in Ex parte
Stock Oil Co., 40 L.D.198, which reaffirmed prior decisions to the
effect that irregularities in proof, including the execution of
affidavits before other than the designated officers, might be
supplied even on appeal.
These and similar rulings previously followed in the Department
are manifestly correct. They accord with the policy of the land
laws under which the United States does not act as an ordinary
proprietor seeking to sell real estate at the highest possible
price, but offers it on liberal terms to encourage the citizen and
to develop the country. The government does not deal at arm's
length with the settler or locator, and whenever it appears that
there has been a compliance with the substantial requirements of
the law, irregularities are waived or permission is given, even on
appeal, to cure them by supplemental proofs.
United States v.
Marshall Mining Co., 129 U. S. 587.
In
Page 233 U. S. 259
the present case, such proof by supplemental affidavits,
properly executed, showed that the land had been properly posted.
But that fact was not allowed to have any effect because of the
mistaken view that, as the original affidavit of posting had been
signed before an officer residing outside of the land district, the
patent proceedings were absolutely void. This confused service by
proper posting -- which was jurisdictional -- with defective proof
of such service, which, like the defective return of an officer,
could be corrected. Under the law, jurisdiction depended upon
giving notice by publication in a newspaper, by posting in the land
office, and by posting on the land itself, the statute directing
how the giving of such notice should be proved. But irregularities
in complying with such directory provision could be cured, and,
when cured, as it was here, the patent should have been issued. The
cancellation of the entry was based on a plain error of law, and
though there was no appeal in fact and no right of appeal to the
courts, the ruling did not operate to deprive the Brick Company of
its property in the mines. The fact that the Brick Company,
perforce, yielded to the erroneous ruling and instituted new
proceedings in order to secure a patent as evidence of its title
did not destroy the rights with which the company had become
invested by full compliance with the requirements of Rev.Stat.
§ 2325. When, therefore, in the suit to try the right of
possession, the plaintiff asked that proper effect be given to the
final receipt and the entry on which it was based as a judgment
in rem, it was not making, as is contended, a collateral
attack on the order of the Land Department, but was merely relying
on the valid entry and asking the court to decline to give effect
to the erroneous cancellation.
4. This conclusion makes it unnecessary to decide the question
as to whether the territorial statute imposing upon the locator the
burden of proving that he has performed the annual assessment work
is void as being in
Page 233 U. S. 260
conflict with the federal statutes, which require no such annual
proof, raise no presumption of abandonment, and, as construed in
Hammer v. Garfield, 130 U. S. 291,
demand clear and convincing proof that work has not been done
before a forfeiture can be declared. It also makes it unnecessary
to determine whether the affidavit of work being offered for one
purpose by McKnight could be used for another purpose by the Brick
Company as substantive evidence in the case.
Many pages of the briefs are devoted to a discussion of these
questions, but if any of them were decided in favor of the Brick
Company, it could not increase its rights. If the legal
propositions involved could be decided in favor of McKnight, that
could not overcome the fact that the issuance of the final receipt
to the Brick Company on October 23, 1905, was an adjudication not
only that the Brick company was entitled to a patent, but that
McKnight then had no adverse claim to the land. Of course, he
acquired none in May, 1906, by locating on property that had
previously been and then was segregated from the public domain.
The judgment of the Supreme Court of the Territory of New Mexico
is reversed, and the case is remanded to the Supreme Court of the
New Mexico for further proceedings not inconsistent with this
opinion.
Reversed.
*
"Sec. 2315. The owner or owners of any unpatented mining claim
in this territory, located under the laws of the United States and
of this territory, shall, within sixty days from and after the time
within which the assessment work required by law to be done upon
such claim should have been done and performed, cause to be filed
with the recorder of the county in which such mining claim is
situated, an affidavit setting forth the time when such work was
done, and the amount, character, and actual cost thereof, together
with the name or names of the person or persons who performed such
work, and such affidavit, when made and filed as herein provided,
shall be
prima facie evidence of the facts therein stated.
The failure to make and file such affidavit as herein provided
shall in any contest, suit, or proceedings touching the title to
such claim, throw the burden of proof upon the owner or owners of
such claim to show that such work has been done according to
law."
