Sidebilder
PDF
ePub

Messrs. R. R. Bigelow, Daniel Titus, and James F. Smith for appellant.

Messrs. Curtis H. Lindley and Lindley & Eickhoff for appellee.

right, or fails to establish the line f-g, and | It lay across the lode, not with it, and the that line produced indefinitely in the direc- company contended, notwithstanding that, tion of g' as such end line. The last two as it had a right to the lode for the length of sail so much of the decree as awards to ap- the location. In other words, the contention pellee the right to pursue the vein on its was that it was the lode which was granted, downward course underneath the parallelo- and that the surface ground was a mere ingram h-i-k-h1. cident for the convenient working of the lode. The contention was presented and denied by the instructions which were given and refused by the lower court. That court instructed possession of the claim, describing it, holdthe jury that if they found Tarbet "was in ing the same in accordance with the mining laws and the customs of the miners of the mining district, and that the apex and course of the vein in dispute is within such surface, then, as against one subsequently entering, he is deemed to be possessed of the land within his boundaries to any depth, and also of the vein in the surface to any depth on ite (2) Is appellant entitled to that portion dip, though the vein in its dip downward of the Contact vein within the Providence passes the side line of the surface boundary boundaries which lies north of the north end and extends beneath other and adjoining line fixed by the court, and which is de-lands, and a trespass upon such part of the scribed upon figure 1 as the parallelogram bounded by the lines marked h-i-k-h?

Mr. Justice McKenna delivered the opinion of the court:

There are two questions presented by the assignment of errors:

(1) What are the extralateral rights of the appellant on the Contact vein?

(1) The appellant contends that the patent of the Providence ledge was conclusive evidence of his title to 3,100 feet in length of that vein. If true, this carried the northern end of the ledge 30 feet beyond the line fixed by either the circuit court or the circuit court of appeals. It was truly said at bar: "If it is not the end line of the Providence location, then certainly there is no reason for holding it to be the end line of the Contact vein."

vein on its dip, though beyond the side surface line, is unlawful to the same extent as a trespass on the vein inside of the surface boundary. This possession of the vein outside of the surface line, on its dip, is limited in two ways-by the length of the course of the vein within the surface; and by an extension of the end lines of the surface claim vertically, and in their own direction, so as to intersect the vein on its dip; and the right of a possessor to recover for trespass on the vein is subject to only these restrictions."

Again: "The defendant (plaintiff in error) The language of the patent is: "It being has not shown any title or color of title to the intent and meaning of these presents to any part of the vein, except so much of its convey unto the Providence Gold & Silver length on the course as lies within the FlagMining Company, and to their successors staff *surface, and the dip of the vein for tha(303 and assigns, the said vein or lode in its en-length; and it has shown no title or color of tire width for the distance of thirty-one hundred (3,100) feet along the course thereof."

The patent was issued under the act of 1866, and it is necessary, therefore, to some extent to consider that act. By it, the appellant urges, the principal thing patented was the lode, and that the northern limit of that, and hence of his rights on that, was 30 feet north of the line fixed by the circuit court of appeals; and hence it is further contended that as the northern and southern surface lines (g-h and a-p) did not determine or limit his right to the lode under the act of 1866-in other words, did not become end lines they do not become end lines upon the Contact ledge (x-x”) acquired under the act of 1872, but that the surface line [302]which crosses the strike of that ledge must be held to be the end line, and the line which fixes the rights of the parties. This line is f-g. Fig. 1, and, if appellant is correct, determines the controversy in his favor.

The extent of the right passing under the act of 1866 has been decided by this court.

In Flagstaff Silver Mining Co. v. Tarbet, 98 U.S. 463 [25: 253], known as the Flagstaff Case, the superficial area of the Flagstaff Mine was 100 feet wide by 2,600 feet long.

title to any of the surface of the South Star and Titus mining claim, except to so much of No. 3 as lies within the patented surface of the Flagstaff mining claim."

And the following instructions propounded by the owner of the Flagstaff:

"By the act of Congress of July 26, 1866, under which all these locations are claimed to have been made, it was the vein or lode of mineral that was 'ocated and claimed; the lode was the principal thing, and the surface area was a mere incident for the con venient working of the lode; the patent granted the lode, as such, irrespective of the surface area, which an applicant was not bound to claim; it was his convenience for working the lode that controlled his location of his surface area; and the patentee under that act takes a fee-simple title to the lode, to the full extent located and cla.med under said act."

Commenting on the instructions, Mr. Justice Bradley, speaking for the court, said:

"These instructions and refusals to instruct indicate the general position taken by the court below, namely, that a mining clai secures only so much of a lode or vein as it covers along the course of the apex of the vein on or near the surface, no matter how

far the location may extend in another direc-|S. 222 [38:419]. The locations passed upon tion." in these cases were made under the act of 1872, *but we have seen that the intent of that act[305] and the act of 1866, "as it respects end lines and side lines," was the same.

And after stating that the act of 1872 was more explicit than that of 1866, but the intent of both undoubtedly the same, as it respects lines and side lines, and the right to follow the dip outside of the latter, he proceeded as follows:

But appellant urges that "those cases are not in point here." We think that they are. The patent in the Flagstaff Case appears to "We think that the intent of both statutes have been the same as here, and besides, whatis, that mining locations on lodes or veins ever the patent here it must be confined to the shall be made thereon lengthwise, in the gen-rights given by the statute which authorizes eral direction of such veins or lodes on the it.

was

surface of the earth where they are discover- In the Flagstaff Case the lode was claimed, able; and that the end lines are to cross the and hence the right to follow it beyond the lode and extend perpendicularly downwards, surface boundaries of the location and to be continued in their own direction claimed. Here the lode is claimed and the either way horizontally; and that the right right to follow it outside of the surface to follow the dip outside of the said lines is boundaries, that is, beyond the line f-g to the based on the hypothesis that the direction of point 1. In that case the right contended 04* these lines corresponds substantially with for was denied on the principle applicable to the course of the lode or vein at its apex on end and side lines. In this case the or near the surface. It was not the intent of right contended for must be denied by the apthe law to allow a person to make his loca- plication of the same principle. tion crosswise of a vein so that the side lines shall cross it, and thereby give him the right to follow the strike of the vein outside of his said lines. That would subvert the whole system sought to be established by the law. If he does locate his claim in that way his rights must be subordinated to the rights of those who have properly located on the lode. Their right to follow the dip outside of their said lines cannot be interfered with by him. His right to the lode only extends to so much of the lode as his claim covers. If he has located crosswise of the lode, and his claim is only one hundred feet wide, that one hundred feet is all he has a right to. This we consider to be the law as to locations on lodes or veins.

"The location of the plaintiff in error is thus laid across the Titus lode, that is to say, across the course of its apex at or near the surface; and the side lines of the location are really the end lines of the claim, considering the direction or course of the lode at the surface.

But, appellant asks, admitting for the argument's sake that it (the line g-h) does constitute an end line of the location within the meaning of the law of May 10, 1872, does it constitute the end line of the Contact vein? And in answering the question he says: "The end line of a lode is the boundary line which crosses it regardless of whether it was originally intended as an end line or side line. Four times has this principle been sustained by this court." He then cites the cases we have cited and claims that they "are of course conclusive of this controversy if they are in point."

Under the law of 1866 a patent could be issued for only one vein. 14 Stat. at L. 251. The act of 1872 gave to all locations theretofore made, as well as to those thereafter made, all veins, lodes, and ledges the top or apex of which lie inside of the surface lines. Section 3 of the act, which is also § 2322 of the Revised Statutes, is as follows:

"The locators of all mining locations heretofore made, or which shall hereafter be "As the law stands, we think the right to made, on any mineral vein, lode, or ledge, follow the dip of the vein is bounded by the situated on the public domain, their heirs end lines of the claim, properly so called; and assigns, where no adverse claim exists which lines are those which are crosswise of on the tenth day of May, eighteen hundred the general course of the vein on the surface. and seventy-two, so long as they comply The Spanish mining law confined the owner with the laws of the United States, and with of a mine to perpendicular lines on every state, territorial, *and local regulations not[306] side, but gave him greater or less width ac- in conflict with the laws of the United States cording to the dip of the vein. See Rockwell, governing their possessory title, shall have pp. 56-58 and pp. 274, 275. But our laws the exclusive right of possession and enjoyhave attempted to establish a rule by which ment of all the surface included within the each claim shall be so many feet of the vein, lines of their locations, and of all veins, lengthwise of its course, to any depth below lodes, and ledges throughout their entire the surface, although laterally its inclination depth, the top or apex of which lies inside of shall carry it ever so far from a perpendicular. such surface lines extended downward_vertiThis rule the court below strove to carry out, and all its rulings seem to have been in accordance with it."

This law was followed and applied in Argentine Mining Company v. Terrible Mining Company, 122 U. S. 478 [30: 1140]; and in Iron Silver Mining Company v. Elgin Min. & S. Co. 118 U. S. 196 [30: 98]; King v. Amy & Silversmith Consol. Min. Co. 152 U.

cally, although such veins, lodes, or ledges
may so far depart from a perpendicular in
their course downward as to extend outside
the vertical side lines of such surface loca-
tions. But their right of possession to such
outside parts of such veins or ledges shall be
confined to such portions thereof as lie be-
tween vertical planes drawn downward, as
above described, through the end lines of

or may have observed in the employees of the treasury of the department.

"76. The minutes of the board shall be spread on the proper book, which shall be signed by all the members thereof, and ar authenticated copy transmitted to the superior chief of the treasury to enable him to make a report to the supreme government, when the case requires it."

By a law of December 7, 1837, it was made the duty of the governors, among other things, to preside over the boards of sale and of the treasury, with power to defer the resolutions of these latter until, in the first or second session thereafter, the matter under consideration is more carefully examined into." 3 Mex. Laws, 443.

Ky article 140 of a decree of June 13, 1843, 1856]it was made the duty of the governor of each department to publish the decrees of the president and cause them to be complied with; and by subdivision 10 of article 142, the governor was made the chief of the public treasury of the department with general supervision of the same. 4 Mex. Laws, 428. And in passing it may be remarked that there is absolutely nothing in this record to indicate that the governor participated in any way in the act of sale, while the terms of the testimonio clearly show that the departmental treasurer proceeded and assumed to proceed upon his own sole authority.

December 16, 1841, the office of the superior chief of the treasury created by the decree of April 17, 1837, was abolished, and it was provided that the departmental treasurers should continue for the present to perform the functions of their office as established by the law creating them, and also to perform those of the discontinued chiefs of the treasury, except such as were assigned to the commandants general, who were to be inspectors and visitors of the treasury offices, and to see that the public revenues were well and faithfully collected, administered, and disbursed; and to make timely reports to the supreme government of what they observed, which should be brought to its attention. 4 Mex. Laws, 75.

On February 10, 1842, the following decree was issued:

"Antonio Lopez de Santa Ana, etc.

under other pretext shall, in any manner, embarrass the proceedings of the board of sale in making the sales, but the right of parties in interest to apply to the supreme government, or to the proper authorities, shall remain intact.

"Therefore I order this to be printed, published, and circulated, and demand that it be complied with." 4 Mex. Laws, 114.

Lopez certified that it was in virtue of this decree that he had sold the lands in question as belonging to the class of temporalities, and as being of a value not exceeding $500, in which case he assumed that he was authorized to sell irrespective of the board of sales in view of article 73 of the decree of April 17, 1837. The argument is that as that article provided that all purchases and sales exceeding $500 should be made necessarily by the board of sales, therefore all property under that value could be sold by the departmental treasurer alone; but the difficulty is, as pointed out by the court of private land claims, that even if that provision operated in the manner contended for, it had no application to a sale under the decree of February 10, 1842, which specifically directed that the sales should be made by the board, and contained nothing to suggest that the value of the property affected the power and duty of the board in any way.

The decree recognized the existence of the boards of sale as the only proper official organs to accomplish the results desired, and it was this decree that was relied on as justifying the proceedings. If these lands were not of the temporalities, then the basis of the sale utterly failed, as the decree applied only to property of that class, and if of the temporalities the sales were to be made by the board.

In relation to article 73 of the law of 1837, some further observations may be added.

The regulations of July 20, 1831, and the law of April 17, 1837, treated of the same subject-matter, and must be read together; and prior laws, so far as not conflicting, were expressly saved from repeal by article 92 of the latter act.

*By § 73, the board of sales was necessarily[258] to make sales exceeding $500, but nothing was said as to sales for less than that sum. This would seem to have left the law of 1831

"Article 1. The boards of sale in the several departments will proceed to sell, at pub-in force in respect of the making and the conlic auction, to the highest bidder, the prop-duct of sales of property having a value beerties (fincas) situated therein that pertain to the department of temporalities.

"2. No bid will be admitted that does not cover the amount considered to be the value of the property (fincas), computed from the amount of the leases, which shall be considered as the interest thereof, at the rate of five per cent.

"3. The bids shall be made for cash, which shall be paid when the sale is approved, less the amount of the burden imposed on each property (fincas), which the buyers shall continue to recognize with a mortgage thereof. "4. No action or claim, which the actual lessors of the property (fincas), in question, (257)may intend to set up for *improvements or

low that amount, and whether the board of sales consisted of the membership prescribed by § 73, or was composed in some respects of a different membership, is not material. While these various laws are rather confusing in their number and minuteness, nothing is clearer than that the power to make sales and grants was vested in the treasury department of the nation and governed by strict rules and regulations, none of which contemplated that any single officer could make the sales. It is enough that the departmental treasurer did not possess the power, acting singly and on his own respon sibility, to conclusively determine to what class lands belonged, and their value, and

aving decided these points, thereupon to exercise the sole power of sale.

Tumacacori, Calabazas, and Huebabi are said to have been originally separate and distinct pueblos and missions, of which the two latter were abandoned as early as December, 1806, when the native Indians of Tumacacori and the governor of said Indians presented petitions to the governor and intendente conde to give them title in accordance with the royal instructions of October 15, 1754, and of article 81 of the royal ordinances of December 4, 1786 (alleging the loss or destruction of their old title papers), of the lands embraced in the fundo legal and the estancia of each pueblo and mission, whereupon the grant of 1807 was made.

tion, the lands of this pueblo and mission were abandoned, it would seem that they thus became a part of the public domain of the nation, and that as such the only laws applicable to their disposal were the laws of the nation in relation to its vacant public lands, to which the proceedings in this instance do not purport to have conformed or to have been made under them.

We concur with the court of private land claims that in either view there was a fatal[200] want of power in the departmental treasurer to make the sale, and it is not asserted in the petition, nor was any evidence introduced to show that his action was participated in or ratified by the governor, or by the national government in any manner. And this is not The titulo refers to some lands acquired by a case in which the sale and grant can be purchase, though the record leaves that mat-treated as validated by presumption. ter entirely vague and uncertain, and declares Decree affirmed.

the grant to be made to the pueblo and na

tives of Tumacacori, that they may "enjoy

the use and freely possess at will and for their NORTHERN PACIFIC RAILROAD COM.

PANY et al., Plffs. in Err.,

D.

PATRICK R. SMITH.

(See S. C. Reporter's ed. 260-276.)

own benefit in community and individually, and for the decent support of the church of said mission, but under the condition that in no case and in no manner shall they alienate at any time any part of said lands which are adjudicated and assigned to them, since they Grant to railroad company-extent of occu [259]are all to be considered as belonging to the Republic and community of natives alone, for their proper use, as well for sowing purposes. The occupation and survey of lands with inas for stockraising and the increased prosperity of the same."

This was in accordance with the general rule that the missionaries and Indians only acquired a usufruct or occupancy at the will of the sovereign. United States v. Cervantes, 18 How. 553 [15: 484].

Prior to 1829, the tribunal of the inquisition had been abolished by the Cortes, and the monastic and other religious orders suppressed, and on the 10th of May of that year it was ordered, through the department of the treasury, that "the property in which consist the funds of the temporalities of the ex-Jesuits and monastics and the rural and urban estates belonging to the inquisition" be sold at public sale to the best and highest bidder. 2 Mex. Laws, 108. May 31, 1829, the commissary general of Mexico published

2.

pation.

tent to locate a town site thereon, but with
out filing a plat or obtaining the adoption of
the town site or a patent therefor until after
a railroad is located thereon, does not prevent
the land from being a part of the public do-
main for the purposes of a grant to the rail-
road company.

The fact that only 25 feet in width of its
right of way has been occupied for railroad
purposes, under a grant of 200 feet on each
side of the track, does not prevent a railroad
company from claiming the full width of the
grant as against persons who had occupied
the premises for the purpose of making a
town site location thereof, but had not ac-
quired a right thereto as against the railroad
company when the road was built.

[No. 93.]

Argued November 4, 5, 1897. Ordered for
Reargument January 10, 1898. Reargued
March 21, 1898. Decided May 31, 1898.

IN ERROR to the United States Circuit

a "list of the urban and rural estates relat-
ing to the temporalities of the ex-Jesuits and
suppressed monastics with a statement of
their values, the burdens they carry, and an-
nual revenue" (Ibid. 117), which did not in- Court of Appeals for the Eighth Circuit to re-
clude the lands in question. The depart-view a judgment of that court affirming the
mental treasurer did not claim, and manifest-
ly did not acquire, the power to sell these
lands under the order of May 10, 1829, or the
regulations of July 7, 1831, bearing on that
subject.

By a decree of April 16, 1834 (2 Mex. Laws, 689), the missions of the Republic were secularized, that is to say, converted from sacred to secular uses, and so far as these lands could have been regarded as temporalities, that is, profane property belonging to the church or its ecclesiastics, that decree changed their condition.

judgment of the Circuit Court of the United
States for the District of North Dakota, in
favor of the plaintiff, Patrick R. Smith, in an
action brought by him against the Northern
Pacific Railroad Company to recover the pos-

NOTE. As to pre-emption rights, see note to
United States v. Fitzgerald, 10: 785.

That patents for land may be set aside for
fraud, see note to Miller v. Kerr, 5:381.

As to errors in surveys and descriptions in

patents for lande; how construed, see note to

Watts v. Lindsey, 5: 423.

As to land grants to railroads, see note to
Kansas P. R. Co. v. Atchison, T. & S. F. R. Co.

And, as many years before the sale in ques- 28: 794.

[ocr errors]

session of land in the city of Bismarck and territory of Dakota, now state of North Dakota. Judgments of the Circuit Court of Appeals and of the Circuit Court reversed, and cause remanded to the latter court with directions to enter a judgment in favor of the defendants.

See same case below, 19 U. S. App. 131, 58 Fed. Rep. 513, 7 C. C. A. 397.

Statement by Mr. Justice Shiras:

This was an action brought by Patrick R. Smith on the 28th day of December, 1891, in the circuit court of the United States for the district of North Dakota against the Northern Pacific Railroad Company. The complaint and answer were as follows:

"The defendant for amended answer to the[262 complaint herein:

"First. For a first defense, alleges

"That the land mentioned in the complaint is situated within two hundred feet of the center line of the roadbed of its line of railroad constructed through the state of North Dakota, and has been for more than twenty years in its lawful possession as its right of way, roadbed and depot grounds, and that the same was granted to it as a right of way by the act of Congress described in the complaint.

"Admits that at all times mentioned in the complaint the plaintiff was a resident of the city of Bismarck in the state of North Dakota, and further admits that the de"The complaint of the above-named plain- fendant is a corporation created by the said [261]tiff respectfully shows to this court and act of Congress. Denies each and every alalleges that the plaintiff is, and ever since legation in the complaint not hereinbefore the organization of the state of North Dakota specifically admitted, and it specifically denies has been, a citizen thereof and that prior that by reason of any of the allegations or thereto he was during all the time hereinafter things in the said complaint set forth the mentioned a citizen of the territory of plaintiff has been damaged in any sum whatDakota.

"That during all the time hereinafter mentioned the above-named defendant has been and still is a corporation created by and existing under and in virtue of an act of the Congress of the United States of America, entitled 'An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line from Lake Superior to Puget Sound on the Pacific Coast, by the Northern Route,' approved July 2, 1864.

"That on the 14th day of September, A. D. 1876, the plaintiff became and ever since has been and still is duly seised in fee simple and entitled to the possession of the followingdescribed real property situated in the city of Bismarck, in the county of Burleigh and territory of Dakota (now, and since the organization thereof under a state government, the state of North Dakota), to wit: Lots numbered five, six, seven, eight, nine, ten, eleven, and twelve, in block number eight, according to the recorded plat of the city of Bismarck, Dakota Territory, together with the hereditaments, privileges, and appurtemances thereof and thereto belonging.

"That said defendant more than six years prior to the commencement of this action wrongfully and unlawfully went into possession of the premises above described. That said defendant ever since said entry has wrongfully and unlawfully retained and withheld, and still does wrongfully and unlawfully retain and withhold, the possession thereof from the plaintiff. And that the use and occupation thereof during said time was worth at least five thousand dollars a year. That the damage to the plaintiff by the wrongful withholding of the possession of the premises as aforesaid is the sum of thirty thousand dollars.

"Wherefore the plaintiff demands judgment against said defendant for the possession of said premises and for the sum of thirty thousand dollars, his damages as aforesaid, together with his costs and disbursements berein."

ever.

"Second. For a second defense"That on the ninth day of May, 1889, the plaintiff impleaded the defendant in the district court within and for the county of Burleigh, in the sixth judicial district for the territory of Dakota (now the state of North Dakota), for the same cause of action for which he has impleaded it in this action.

"That at the time of the commencement of this action, said action was pending in said court and is still pending therein.

"Third. For a third defense

"That on the 31st day of January, 1878, the defendant recovered judgment against the plaintiff for the possession of a portion of the property described in the complaint, to wit, that portion thereof described as lots eleven and twelve, for six cents damages and for $- costs, and that said judgment was rendered upon the cause of action mentioned in the complaint, which judgment is in full force, unreversed, and unsatisfied.

"Wherefore, the defendant demands judgment: 1st. That the complaint be dismissed. 2d. For its costs and disbursements in this action."

*The findings of fact and law made by the[263] trial court were as follows:

"The property in controversy, the same being eight lots in the city of Bismarck in North Dakota, described as lots five (5) to twelve (12) both inclusive, in block eight (8), in the city of Bismarck, which was formerly known as Edwinton, and the name of which was changed by act of the legislature of the territory of North Dakota to 'Bismarck' was part of an eighty (80) acre tract of land which was entered by John A. McLean as mayor of the city of Bismarck, in behalf of its inhabitants, under the town-site act (Revised Statutes, § 2387), and was patented to him thereunder July 21, 1879.

"The corporate authorities of that city subsequently and more than six years prior to the commencement of the action conveyed these lots to Patrick R. Smith, the plaintiff.

« ForrigeFortsett »