1. Under the ninth rule of this Court, a writ of error or appeal
from any judgment or decree rendered thirty days before the
commencement of the term may be docketed and dismissed on motion of
the defendant in error or appellee unless the other side dockets
the cause and files the record with the clerk of the court within
the first six days of the term. But if no motion to dismiss be
previously made, the record may be filed and the cause docketed at
any time within the term.
2. The value of a "Mining Claim" in Nevada may be the subject of
estimate in money, and this Court will take jurisdiction of a suit
concerning such a claim if of the requisite value, though the land
where the claim exists has never been surveyed and brought into
market. [The claim may perhaps exist under the old governments of
Spain or Mexico. Moreover, mining interests, apart from fee simple
rights in the soil by patent, existed before the Act of Congress of
February 27, 1865, under the implied sanction of the federal
Government.]
3. When the judgment brought before this Court by writ of error
purports to affirm generally the judgment of a court inferior to
the affirming court, and the only judgment in the record of such
inferior court is a general judgment; this Court will take
jurisdiction though an appeal has also been taken in the inferior
court under state laws upon a motion refusing a new trial and there
are some indications in the record that this affirmance was
intended to be of that refusal.
Sparrow brought an action in the nature of an ejectment in the
District Court for the First Judicial District of Story County,
Nevada Territory, to recover an interest in a mining
claim, a sort of interest very common in the argentiferous
territory just named.
The case was tried before a jury upon a considerable body of
evidence, and a verdict having been given for the defendant, a
judgment in the nature of a judgment in ejectment was regularly
rendered by the court upon it.
Subsequently, a
motion for new trial was made. A
statement embodying all the evidence was drawn up and agreed to by
counsel, and upon this statement and some affidavits tending to
show surprise on the trial, and new evidence discovered after
trial, the motion was argued before the district court. It was
overruled, and from the
overruling order an appeal was
taken, on the 15th November, 1862, to the
supreme
Page 70 U. S. 98
court of the territory under an act of the territorial
legislature authorizing
such appeals.
On the 16th of March, 1863, the supreme court gave judgment in
the cause as follows:
"On appeal from the District Court of the First Judicial
District in and for Story County."
"Now, on the day, this cause being called, and having been
argued and submitted and taken under advisement by the court, and
all and singular the law and the premises being by the court the
seen and
fully considered, the opinion of the
Court herein is delivered by Turner, C.J. (Mott, J., concurring),
to the effect that the
judgment below be affirmed."
"Wherefore it is now
ordered, considered, and
adjudged by the court here that the judgment and decree of
the District Court of the First Judicial District in and for Story
County
be and the same is affirmed with costs."
From this judgment of the Supreme Court of Nevada a writ of
error was taken here, the affidavit filed being the ordinary one,
that "the value
of the property in dispute" exceeded
$2,000. The record did not show any bill of exceptions.
A rule of this Court (the ninth) requires that when a writ of
error shall be brought to it from any judgment or decree rendered
thirty days before the commencement of the term -- which this writ
was -- it shall be the duty of the plaintiff "to docket the cause
and file the record thereof with the clerk of this Court, within
the first
six days of the term." In the present case, the
writ of error was properly sued out August 14, 1863, returnable to
the next term of the court, and was regularly served. A citation
was also served returnable to the same term.
After the
writ, citation, and record were filed and the cause docketed, a
motion to dismiss the case was made and argued at the last
term:
1. Because the record was not filed in time by the plaintiff in
error.
2. Because the interest in controversy was not capable of a
money valuation, and therefore not of the value, within
Page 70 U. S. 99
the meaning of the statute, of one thousand dollars, the amount
necessary to give jurisdiction to this Court. [
Footnote 1]
To understand the force or want of force of this second
objection, it is necessary to state, on the one hand, that the
Territory of Nevada, from which the case came, was formerly part of
the province of Upper California, and belonged first to old Spain,
afterwards to Mexico, and was acquired by the United States only in
1848, by treaty; [
Footnote 2]
and that our government as yet had made no grants of its public
lands there or of any rights in them. Of course, no one could hold
anything by patent or other formal grant from this government, in
which, subject to prior private rights, everything still remained
vested. On the other hand, it is to be stated that in the treaty
referred to [
Footnote 3] it is
admitted that previously to our acquisition of it, the ceded
territory had been settled to some extent by the authority of
preexisting governments, and that all rights thus existing are made
inviolable. In fact, immense estates in California -- a part of the
acquired territory -- rest on the titles derived from the "former
governments." [
Footnote 4]
Congress had also established, in March, 1861, when Nevada,
previously a part of Utah, was made a territory by itself, a
government for that territory, having a legislature with the usual
powers of these bodies in the territories, and this legislature had
acted on the development of the mines as a subject more or less
within its competence.
Page 70 U. S. 100
Independently of this, however, a special kind of law -- a sort
of common law of the miners -- the offspring of a nation's
irrepressible march -- lawless in some senses, yet clothed with
dignity by a conception of the immense social results mingled with
the fortunes of these bold investigators -- had sprung up on our
Pacific coast, and presented, in the value of a "mining right," a
novel and peculiar question of jurisdiction for this Court.
[
Footnote 5]
The case, however, was not disposed of at the last term, nor
either of the two points already mentioned passed on. It was
ordered to stand over for argument on another point -- the point,
to-wit, whether the judgment of the Supreme Court of Nevada, above
referred to, was a final
judgment or decision reviewable
here within the meaning of the act of Congress organizing the
territory -- an act which gives this Court jurisdiction to review
the final decisions of the supreme court of the
territory.
Page 70 U. S. 103
THE CHIEF JUSTICE now delivered the opinion of the Court on all
three of the points.
The first ground taken in favor of dismissing the writ of error,
to-wit that the record was not filed in time by the plaintiff in
error, is untenable. The writ was regularly sued out on the 14th of
August, 1863, returnable at the next term of the court thereafter,
and was duly served; a citation was also issued and served,
returnable at the same term; and the writ and citation, with the
record, were returned here and filed, and the cause docketed before
the motion to dismiss. It has been repeatedly held that in such a
case, no motion to dismiss under the ninth rule can be entertained.
[
Footnote 6]
Nor do we think that the appeal should be dismissed for the
second reason assigned by the defendant in error -- namely that the
subject of controversy is not of the jurisdictional value. It is
insisted that the matter in dispute is a mining claim, that the
land where the mine exists has never been surveyed and brought into
market, and that consequently there can be no mining right to such
land in any person capable of being estimated in money.
It is true that in the case of
Lownsdale v. Parrish,
[
Footnote 7] this Court held
that an obstruction to the enjoyment of land claimed under a law or
regulation of a convention in Oregon, held without the sanction of
the United States and during the joint occupation of that country
by Great Britain and the United States, was not an injury capable
of being so valued as to give jurisdiction to this Court, nor
indeed an injury of which the courts of the United States could
take cognizance at all. But that decision was put distinctly on the
ground that Congress, when it came to act on the organization of
Oregon, expressly declared that all laws theretofore passed in that
territory making grants of lands or
Page 70 U. S. 104
otherwise affecting or encumbering the titles to lands, should
be and were thereby declared "null and void."
The claim which the Court was asked to protect was asserted
under a law thus declared null and void by the highest legislative
authority. It was for this reason that the Court refused to take
jurisdiction in
Lownsdale v. Parrish and dismissed the
appeal.
The writ of error now before us relates to a very different
subject of controversy. The territory of which Nevada is part was
acquired by treaty. Rights and titles acquired under ceding
governments remain unimpaired under our government. We cannot know
judicially, therefore, that the right and title in controversy was
not so acquired. If it was, it certainly may be capable of being
valued in money.
But if this were otherwise, we do know that in the act
organizing the Territory of Nevada there is no clause annulling
grants or claims to land, while large legislative powers are
conferred by the territorial legislature, limited only, as to
lands, by the prohibition of interference with the primary disposal
of the soil by the United States and of unequal taxation in certain
cases. We know also that the territorial legislature has recognized
by statute the validity and binding force of the rules,
regulations, and customs of the mining districts. [
Footnote 8] And we cannot shut our eyes to
the public history, which informs us that under this legislation,
and not only without interference by the national government but
under its implied sanction, vast mining interests have grown up,
employing many millions of capital, and contributing largely to the
prosperity and improvement of the whole country.
We cannot dismiss this writ of error, therefore, on the ground
that a controversy concerning the possessory right to a mining
claim, existing under the express sanction of the territorial
legislature and the implied sanction of the national government,
does not relate to a subject matter capable of being valued in
money.
Page 70 U. S. 105
As the questions thus far considered were argued at the last
term, the motion would have been then disposed of had not doubts
been excited by an inspection of the record upon the point for the
argument of which the motion was ordered to stand over.
It is insisted on this point that the judgment is merely an
affirmance of the order of the district court overruling the motion
for new trial. If this be so, the judgment itself is, in substance
and effect, nothing more, and it is settled [
Footnote 9] that this Court will not review such
an order. The granting or refusing of new trials is a matter of
discretion with the exercise of which by the court below this Court
will not interfere. The circumstance that the discretion was
exercised under a peculiar statute by an appellate court and on
appeal cannot withdraw the case from the operation of the
principles which control this Court.
But the majority of the Court does not feel at liberty to
disregard the plain import of the terms of the judgment rendered by
the supreme court of the territory. It does not purport to be an
order or judgment affirming an order overruling a motion for new
trial, but a judgment affirming the judgment or decree of the
district court, and the only judgment or decree which we find in
the record is the judgment for the defendants in the action of
ejectment.
If this view be correct, the judgment of the supreme court is
one to review which a writ of error may be prosecuted. And the
record shows that the writ has been regularly sued out and
returned. This Court therefore has jurisdiction, and it has been
repeatedly held in similar cases [
Footnote 10] that on a motion to dismiss, the court will
look to the regularity of the writ and the fact of jurisdiction.
Other questions must in general await final hearing.
Motion to dismiss overruled.
[
Footnote 1]
A third ground was made at the last term for dismissing the
case, to-wit, that the jurisdiction of this Court, if it ever had
any, was taken away by an act of Congress (passed between the time
of granting the writ of error and the date of the motion to
dismiss) admitting the State of Nevada into the Union without any
provision which should save the jurisdiction vested in this Court
by the act organizing the territory. This omission was, however,
supplied by an Act of Congress of February 27, 1865, which was held
valid and effectual by this Court in
Freeborn
v. Smith, 2 Wall. 160, at the last term. This third
ground relied on for dismissal was therefore as THE CHIEF JUSTICE
observed, now necessarily to be regarded as untenable.
[
Footnote 2]
Treaty of Guadalupe Hidalgo, made after the war of 1847 between
Mexico and the United States, 9 Stat. at Large Treaties, p.
922.
[
Footnote 3]
Articles 8th and 9th.
[
Footnote 4]
See the
Sutter Case and the
Fossatt
Case, 2 Wall.
69 U. S. 564,
69 U. S. 649.
[
Footnote 5]
This common law of the miners was described, soon after the
decision here reported was made, by a Senator of the United States
from the Pacific coast in a manner so full and interesting as to
have attracted general notice. I refer to the remarks made by Mr.
Senator Stewart of Nevada in the Senate of the United States in
June, 1865, and in which the justice and wise policy of the
decision above given was shown and enforced.
The reader will not feel, I hope, that I encumber the report
with matter wholly irrelative by the extract which I give in an
Appendix, No. 1 [omitted --
see printed version of 70
U.S., pp. 777-794].
Mr. Stewart remarks that the common law of the miners has to
some extent had the sanction of Congress, though, with "one single
exception," no
statute had been enacted to give it
force.
This exception was exhibited at the Congressional session of
1865-1866, when the following law (Act of Feb. 27, 1865, 13 Stat.
at Large 441) was passed:
"No possessory action between individuals in any of the courts
of the United States for the recovery of any mining title or for
damages to such title shall be affected by the fact that the
paramount title to the land on which said mines are is in the
United States, but each case shall be adjudged by the law of
possession."
This statute of Feb. 27, 1865, to which Mr. Senator Stewart
refers as the "one single exception," the reporter supposes, would
have rendered the last question in the present case free from
difficulty had the law existed when the case first arose; but it
did not.
[
Footnote 6]
Bingham v.
Morris, 7 Cranch 99;
Wood v.
Lide, 4 Cranch 180;
Picketts' Heirs v.
Legerwood, 7 Pet. 146;
Owings v.
Tierman, 10 Pet. 24;
Given v.
Breedlove, 15 Pet. 284.
[
Footnote 7]
62 U. S. 21 How.
290.
[
Footnote 8]
Laws of Nevada Territory, p. 16, § 40, and p. 21,
§§ 74, 77.
[
Footnote 9]
Doswell v. De la
Lanza, 20 How. 29;
Henderson
v. Moore, 5 Cranch 12;
Marine
Ins. Co. v. Hodgson, 6 Cranch 206;
Barr
v. Gratz, 4 Wheat. 220.
[
Footnote 10]
Minor v.
Tillotson, 1 How. 288;
Hecker v.
Fowler, 1 Black 95.
