Silver King Co. v. Conkling Mining Co., 255 U.S. 151 (1921)

U.S. Supreme Court

Silver King Co. v. Conkling Mining Co., 255 U.S. 151 (1921) Silver King Coalition Mines Company v. Conkling Mining Company

No. 158, 187

Argued January 19, 1921

Decided February 28, 1921

255 U.S. 151

CERTIORARI TO AND APPEAL FROM THE CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Syllabus

1. Monuments prevail over courses and distances. P. 255 U. S. 162.

2. A patent which describes a lode mining claim by courses and distances, but which also calls for monuments at the first two corners, and refers to the other two turning points as "corner No. 3" and "corner No. 4," is subject to interpretation as calling for monuments at all four corners, and opens the door to field notes showing such

Page 255 U. S. 152

monuments and to parol evidence of their actual location on the ground. Pp. 255 U. S. 159, 255 U. S. 162.

3. And such interpretation is greatly strengthened when the patent, by its language, assumes identity of the claim as therein described and patented with the lot as surveyed, platted, and designated by the surveyor general, in view of his duty to see that such lots are identified by monuments on the ground. P. 255 U. S. 161.

4. Under the mining law, an application to patent a lode claim is for a claim marked by monuments; the posted and published notice of application refers to a claim so marked, and such notice, as a jurisdictional basis, will not sustain a patent for land outside the monuments as against a senior location. P. 255 U. S. 161.

5. The rights of the respondent under its patent were fixed by the register's final certificate. P. 255 U. S. 162.

6. The Act of April 28, 1904, amending Rev.Stats. § 2327, and declaring that monuments shall prevail over inconsistent descriptions in mining patents, merely made more explicit the previous policy of the law. Id.

230 F. 553 reversed.

Review of a decree of the circuit court of appeals which reversed a decree of the district court dismissing a bill to establish title to a body of ore as within the plaintiff's patented mining claim and to obtain an account for ore extracted. The case is stated in the opinion, p. 255 U. S. 159.

Page 255 U. S. 159

MR. JUSTICE HOLMES delivered the opinion of the Court.

This is a bill in equity brought by the respondent, the Conkling Mining Company, in order to establish its right to a large body of ore found under the southwesterly 135.5 feet of its patent as laid out by courses and distances, and to obtain an account from the petitioner, which has mined the ore, making a claim of right on its side. The district court dismissed the bill. The decree was reversed by the circuit court of appeals. Conkling Mining Co. v. Silver King Coalition Mines Co., 230 F. 553. Thereupon a writ of certiorari was granted by this Court. 250 U.S. 655. A short statement will be enough to present the single issue that it is necessary to pass upon here. The only ground upon which the Conkling Mining Company stands is that the ore is within the lines of its patent extended vertically downward. If the patent, properly construed does not cover the land in question, the case is at an end.

The patent under which the Conkling Mining Company gets its title was granted to the Boss Mining Company, and, so far as material, is as follows: it recites that, in pursuance of the Revised Statutes, etc., there have been deposited in the General Land Office of the United States the plat and field notes of survey and the Certificate No. 1697 of the Register of the local land office, with other evidence whereby it appears that the grantee duly entered and paid for that certain mining claim known as the Conkling lode mining claim, designated by the Surveyor General as Lot No. 689, "bounded, described, and platted as follows . . . Beginning at corner No. 1 a pine post four inches square marked U.S. 689 P. 1. Thence"

Page 255 U. S. 160

by courses and distances northwesterly "to corner No. 2, a pine post four inches square marked U.S. 689 P. 2," these two corners being undisputed.

"Thence second course, south sixty degrees and forty-five minutes west one thousand five hundred feet to corner No. 3. Thence third course, south twenty-one degrees and nine minutes east six hundred feet to corner No. 4."

It then grants "the said mining premises hereinbefore described" and all that portion of veins, lodes or ledges, "the tops or apexes of which lie inside of the surface boundary lines of said granted premises in said Lot No. 689," etc., with a proviso confining "the right of possession to such outside parts of said veins," etc., "to such portions thereof as lie between vertical planes drawn downward through the end lines of said Lot No. 689," etc.

If "corner No. 3" and "corner No. 4" are determined by courses and distances alone, the Conkling Mining Company is entitled to prevail upon the question that we are discussing. The circuit court of appeals was of opinion that the patent represented an adjudication by the Land Department that the lot was 1,500 feet long and 600 feet wide without regard to the location of the other posts which the field notes showed to exist but the patent did not mention. The district court, on the other hand, held that evidence was admissible to show that there were monuments at corners No. 3 and No. 4, held that the monuments so established prevailed, and therefore decided that the title of the Conkling Mining Company failed.

The decree of the district court appears to us to be supported by the face of the patent and by consideration of the circumstances. If a draughtsman were determining his description by courses and distances only, it seems unlikely that he would insert "corner No. 3" and "corner No. 4" where the direction changed, as it would add nothing to the change of direction in the boundary line. The

Page 255 U. S. 161

words by themselves suggest a reference to an external object, an interpretation greatly strengthened by the fact that the same phrase in the first two instances of its use referred to one in terms, and, coupled with evidence that such an external object was found, the words at least tend to prove that a monument was meant. Of course, evidence is admissible, if needed, to show that language is to receive the interpretation that, taken by itself, it invites. Furthermore, the grant is of "the said mining premises hereinbefore described," assumed in the same sentence to be the lot designated by the Surveyor General as Lot No. 689; and, when it is observed that it is the duty of the Surveyor General to see that the lot is identified by monuments on the ground, the presumption becomes almost irresistible that "corner No. 3" and "corner No. 4" mean corners determined as they are required to be determined by the law.

One statutory foundation of a mining claim is that "the location must be distinctly marked on the ground so that its boundaries can be readily traced." Rev.Stats. § 2324. To obtain a patent, the claimant must file in the proper land office along with his application

"a plat and field notes of the claim . . . made by or under the direction of the United States Surveyor General, showing accurately the boundaries of the claim . . . which shall be distinctly marked by monuments on the ground."

Waskey v. Hammer, 223 U. S. 85. He also must file a certificate of the Surveyor General

"that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent."

Rev.Stats. § 2325. It is the reference to natural objects or monuments that is to be incorporated. Before the application is filed, notice of it must be posted on the ground. The register subsequently advertises the application in a newspaper,

Page 255 U. S. 162

etc., and if no adverse claim is made and the other conditions are complied with, the patent is granted. The notice is jurisdictional. El Paso Brick Co. v. McKnight, 233 U. S. 250, 233 U. S. 259. Obviously, therefore, a patent can convey only the claim as to which notice has been given. A notice of an application for a patent of land determined by monuments cannot give priority to a junior location, such as was that of the Conkling Mining Company, in respect of land outside the monuments, to which adjoining claimants had no notice that the patent would purport to extend.

The final receipt from the local land officer fixed the claimant's rights. El Paso Brick Co. v. McKnight, 233 U. S. 250, 233 U. S. 257. The failure of the subsequent patent to the Boss Mining Company, issued February 23, 1892, to describe the monuments at corners Nos. 3 and 4 was not an adjudication in favor of an inconsistent description, but simply the following of a practice of abbreviating by omission that had been adopted by the land office in 1891, and which a few years later it was directed to discard. The Act of April 28, 1904, c. 1796, 33 Stat. 545, amending Rev.Stats. § 2327, making the monuments the highest authority to which inconsistent descriptions must give way, simply made more explicit, or at most carried a little farther, the previous policy of the law. We are satisfied that evidence that the field notes, as the regulations of the department required, showed marked posts at the third and fourth corners was admissible, and that witnesses properly were allowed to testify that they found posts upon the ground. The district judge ,who saw and heard the witnesses, was satisfied that they told the truth, and thereupon rightly determined that the monuments so fixed controlled the courses and distances in the instrument evidencing the grant. See Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 129 F. 668; Grand Central Mining Co. v. Mammoth

Page 255 U. S. 163

Mining Co., 36 Utah 364, 378, 379; Foss v. Johnstone, 158 Cal. 119, 128; McIver v. Walker, 4 Wheat. 444, 17 U. S. 447-448; Heath v. Wallace, 138 U. S. 573. We see no sufficient reason for disturbing the finding of the trial court upon the facts.

It may be that our decision will end this litigation. If not, our decree is made without prejudice to such further questions as may arise. We confine ourselves to the one here determined.

The petitioner, besides applying for the writ of certiorari, took an appeal, for greater caution. It is immaterial to the petitioner in which was the relief to which it is entitled is obtained. The appeal will be dismissed.

Decree reversed.

Appeal dismissed.

THE CHIEF JUSTICE took no part in the decision of this case.