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DEFFEBACK V. HAWKE.

fection of the Act of 1866 no designation is | L. ed. 342]. When the patent was subsequently

Fre of the character of mineral lands which issued, it related back to the inception of the
free and open to exploration. But in the right of the patentee.
Acd 1872, which repealed that section and

The position that the patent to the plaintiff [406] Mineral deposits" which are declared to be from its operation all buildings and improvefree and open to exploration and purchase. ments not belonging to him, and all rights necThe ame term is carried into the Revised Stat- essary or proper to the possession and enjoyIt is there enacted that "lands valuable ment of the same, has no support in any legis dre minerals" shall be reserved from sale, ex-lation of Congress. The land officers, who are otherwise expressly directed, and that merely agents of the law, had no authority to a mineral deposits" in lands belong- insert in the patent any other terms than those to the United States shall be free and open of conveyance, with recitals showing a comto exploration and purchase. We also say pliance with the law and the conditions which adsen at the time of their sale to be thus it prescribed. The patent of a placer mining ale, in order to avoid any possible conclu- claim carries with it the title to the surface inainst the validity of titles which may be cluded within the lines of the mining location, d for other kinds of land, in which years as well as to the land beneath the surface. The wards rich deposits of mineral may be dis- Act of Congress of May 10, 1872, contemplates evered. It is quite possible that lands settled the purchase of the land on which valuable as suitable only for agricultural purposes, mineral deposits are found; and its provisions red by the settler and patented by the gov' in this respect are retained in the Revised Statent under the preemption laws, may be utes, section 2319. fyears after the patent has been issued, to tan valuable minerals. Indeed, this has the happened. We, therefore, use the term to be valuable at the time of sale, to pent any doubt being cast upon titles to afterwards found to be different in their character from what was supposed the entry of them was mad and the pa

acted one of broader import, it is "valua- should have contained a reservation excluding

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Whilst we hold that a title to known valuable mineral land cannot be acquired under the the town-site laws, and, therefore, could not be acquired to the land in controversy under the entry of the town site of Deadwood by the probate judge of the county in which that town is situated, we do not wish to be understood as expressing any opinion against the validity of the entry, so far as affected property other than mineral lands, if there were any such at the time of the entry. The Acts of Congress re

Is the present case there is no dispute as to eral character of the land claimed by thepiff. It is upon the alleged prior occu-lating to town sites recognize the possession of efit for trade and business, the same be- mining claims within their limits; and in Steel hin the settlement or town site of Dead- v. Smelting Company, 106 U. S. 449 [Bk. 27, L. d, that the defendant relies as giving him ed. 227], we said that "land embraced within aber night to the property. But the title to a town site on the public domain, when unocd being in the United States, its occupa-cupied, is not exempt from location and sale for trade or business did not and could not for mining purposes; its exemption is only from e any right to it, the same being mineral settlement and sale under the preemption laws por delay proceedings for the acquisition of the United States. Some of the most valuae under the laws providing for the ble mines in the country are within the limits ands of that character. And those pro- of incorporated cities, which have grown up had gone so far as to vest in the plain- on what was, at its first settlement, part of the right to the title, before any steps were public domain; and many of such mines were by the probate judge of the county to located and patented after a regular municipal he town site at the local land office. The government had been established. Such is the alleges, and the answer admits, that case with some of the famous mines of Virginia of November, 1877, the plaintiff ap- City, in Nevada. Indeed, the discovery of a to the United States Land Office at Dead-rich mine in any quarter is usually followed by ter the land as a placer mining claim, a large settlement in its immediate neighborat on the 31st of January, 1878, he did hood, and the consequent organization of some such by paying the government form of local government for the protection of refor. No adverse claim was ever its members." It would seem, therefore, that th the register and receiver of the local the entry of a town site, even though within and the entry was never canceled its limits mineral lands are found, would be as proved by the officers of the Land De- important to the occupants of other lands as if Washington. The right of the no mineral lands existed. Nor do we see any et, therefore, passed to him; and injury resulting therefrom, nor any departure tisdeed, that is, its patent, was not is- from the policy of the government, the entry and im until January 31, 1882, the certifi- the patent being inoperative as to all lands known phase, which was given to him upon at the time to be valuable for their minerals, or ***, as so far as the acquisition of title discovered to be such before their occupation r party was concerned, equivalent or improvement for residences or business unIt was not until the 28th of July der the town site title. that the probate judge entered the The land had then ceased to be the fale by the government. It was no property it held the legal title only the bolder of the certificate. With ***** Duncan, 4 Wall. 218 [71 U. S. bk. 18,

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The claim of the defendant, under the second special plea, to allowance for improvements made upon the property, is as untenable as his claim to the title. It is asserted under a statute of the Territory, which provides that "in an action for the recovery of real property, upon

427

[407]

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which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title, adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a counterclaim by such defendant." The case presented by the defendant is not covered by the provisions of this law. There can be no color of title in an occupant who does not hold under any instrument, proceeding, or law, purporting to transfer to him the title or to give to him the right of possession. And there can be no such thing as good faith in an adverse holding, where the party knows that he has no title, and that, under the law, which he is presumed to know, he can acquire none by his occupation. Here the defendant knew that the title was in the United States, that the lands were mineral, and were claimed as such by the plaintiff, and that title to them could be acquired only under the laws providing for the sale of lands of that character; and there is no pretence that he ever sought, or contemplated seeking the title to them as such lands, or claimed possession of them under any local customs or rules of miners in the district.

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complaint alleges that, on the 11th of December, 1878, the plaintiffs were the owners in fee and possessed of the demanded premises, deriving their title under the said patent of the United States, founded upon the entry mentioned; that afterwards, on the 12th of said December, while they were thus seised and possessed of the premises, the defendants, without right or title, entered upon them, ousted the plaintiffs therefrom and have ever since unlawfully withheld them, to the damage of the plaintiffs of $500. It also alleges that the value of the rents and profits of the premises from the entry of the defendants have been ten dollars a month; and it prays judgment for the possession of the premises, for the damages sustained, and for the rents and profits lost.

The answer of the defendants denies generally the several allegations of the complaint, except as stated therein, and then sets up specially, by way of counterclaim, various matters which they contend constitute in equity a good defense to the action and entitle them to a portion, at least, of the demanded premises, or to compensation for their improvements thereon.

The matters set forth as grounds for equitable relief are alleged upon information and belief, and are substantially these:

That on the 28th of February, 1877, the land in controversy, with other land adjacent thereto, was appropriated and occupied as a town site and for town-site purposes, and as such was

PHILANDER E. SPARKS ET AL., Appts., laid out into lots, blocks, streets and alleys, and

v.

MOSES PIERCE ET AL.

(See S. C., Reporter's ed., 408-413.) Public lands occupancy and improvement of, give no vested rights-relief in equity against patent-what must appear-compensation for improvements.

*1. Mere occupancy of the public lands and making improvements thereon give no vested right therein as against the United States or any purchaser from

them.

2. To entitle a party to relief in equity against a patent of the government he must show a better right to the land than the patentee, such as in law should have been respected by the officers of the Land Department, and being respected would have given him the patent. It is not sufficient to show that the patentee ought not to have received the patent.

3. A person who makes improvements upor public land, knowing that he has no title, and that the land is open to exploration and sale for its minerals, and makes no effort to secure the title to it as such, under the laws of Congress, or a right of possession under the local customs and rules of miners, has no claim to compensation for his improvements as an adverse holder in good faith, when such sale is made to another and the title is passed to him by a pa

designated as Central City, having at that time about one hundred inhabitants; that this number increased until, on March 22, 1880, the date of the plaintiffs' patent, the place became an important one, containing about two thousand inhabitants;

That on the said 28th of February, 1877, the grantor of the defendants was in the peaceful Occupation and possession of the land in controversy as a lot in said Central City, and that on the 12th of December, 1878, he sold them the lot with the improvements thereon for a valuable consideration;

That after the said 28th of February, 1877, the plaintiffs, without legal right, caused certain ground within the town site, including that in controversy, to be surveyed for a placer mining claim, and an application for a patent based upon that survey to be filed in the United States land office at Deadwood, in the County of Lawrence;

That, within the time required by law, the inhabitants of the town, including the grantor of the defendants, filed a protest in the land office against the issuing of the patent, basing the protest upon the ground, among other things, that the land was subject to the prior Submitted Oct. 14, 1885. Decided Nov. 16, 1885. rights of the town-site occupants, and was not

tent of the United States.

[No. 563.]

mineral; but that, notwithstanding the protest,

APPEAL from the Supreme Court of the the local land officers, on the 30th of the price

Territory of Dakota.

Statement of the case by Mr. Justice Field: This is an action to recover a parcel of mining ground, situated in Lawrence County, in the Territory of Dakota, and claimed by the plaintiffs under a patent of the United States, bearing date March 22, 1880, and issued to them upon an entry made November 30, 1877. The

*Head notes by Mr. Justice FIELD.

ber, 1877, received from the plaintiffs of the land as a placer claim, and the fees prescribed by law, and allowed their entry of the same; that, subsequently, on the 22d of April, 1877, the Commissioner of the General Land Office reviewed the proceedings, and directed that a patent issue to the plaintiffs for the mining claim, but with a reservation from the grant of all town property, rights upon the surface, and all lots, blocks, streets and alleys,

houses, buildings and improvements against them. The demurrers were sustained not belonging to the plaintiffs, and all by the court, and the defendants declining to essary to the occupation and enjoy-plead further, and electing to stand upon their the same; that, subsequently, on the special answers, the plaintiffs had judgment November, 1878, the Commissioner sus- for the possession of the premises. On appeal yed the entry, and ordered that a hearing to the Supreme Court of the Territory the ad before the officers of the local land of judgment was affirmed. To review that judgdetermine the date when the land was ment the case is brought here on appeal. pied as a town site, the nature and ex- Mr. G. C. Moody, for appellants. ch occupancy, and the improvements Messrs. Van Cise & Wilson and J. W. and whether the land was mineral or Smith, for appellees. Aeral in its character; that such hearing menced on the 26th of November, 1878; parties submitted their testimony to lers, who, on the 20th of January, caled, in substance, that the land was mineral, but had been appropriated te purposes prior to any appropriathe plaintiffs, and that the land should Tad to the occupants of the town site, ang the defendants, subject to the right paris to mine and extract the gold if, in so doing, they did not mateerfere with the possession, buildings ements of the town occupants, indefendants; that the occupants and were satisfied with this decision, and pal was taken therefrom, but, on the conappeal was waived; that, notwiththis, on the 6th of October, 1879, the er reviewed the decision of the local er, and held that the town-site claimpants, including the defendants, whatever to the land, upon the sole it was mineral, and, therefore, not appropriation except under the Min471972; that he accordingly dismissed and directed that the patent be is the plaintiffs, without any exception or therein to protect the possession and s of the defendants, and that the accordingly issued to the plaintiffs; the defendants insist that it should ated a reservation excepting thereo property rights, and all houses, ructures, lots, blocks, streets and ther improvements on said land, rring to the plaintiffs, and all rights proper to the occupation, and posenjoyment of the same: that its sch reservation, was contrary to the plaintiffs, therefore, hold the land tin trust for the defendants; and The conveyed to them, they offering proportion of the expenses of the patent.

Mr. Justice Field, after stating the case, delivered the opinion of the court, as follows:

T

This case, as seen by the pleadings stated, is in its main features similar to that of Deffeback v. Hawke, just decided [ante, 423]. The plaintiffs here, as in that case, rely upon a patent of the United States for the land in controversy, issued under the laws for the sale of mineral lands. It is admitted that the land was mineral in its character, and the patent itself is evidence that all the requirements of the law for its sale were complied with. The defendants, as in that case, set up as ground for equitable relief against the enforcement of the rights of the plaintiffs under the patent, that their grantor occupied the land as a lot in a town site-here the town site being that of Central City; there that of Deadwood City-and made improvements thereon before the plaintiffs claimed it as mining ground, or took proceedings to procure its title; and that he sold the lot to them, with its improvements, for a valuable consideration. They, therefore, as the defendant did in the other case, deny the right of the plaintiffs to acquire the premises as a mining claim on the town site; but they also contend that if the plaintiffs had that right, the patent issued to them should have contained reservations excluding from its operation the buildings and improvements of the defendants, and whatever was necessary for their use and enjoyment. They also contend, that if this defense be not sustained, they should be allowed compensation for their improvements on the premises.

The case differs, however, in one important particular from that of Deffeback v. Hawke. There an entry had been made of the town site in the land office of the United States, by the probate judge of the county, for the benefit of the occupants of the town. The entry, it is true, was afterwards canceled by the Secretary of the Interior, so far as the premises in controversy in that case were concerned. The proceedings showed, however, a desire on the part of the occupants to secure the title of the United States, and not to rest upon their naked possession. Here it does not appear that any effort had been made, either by the authorities of the town, or by the probate judge of the county, or by anyone else on behalf of the occupants of the town, or by the defendants or their grantor, to acquire the legal title. The case presented, therefore, is that of occupants of the public lands without title, and without any attempt having been made by them, or by anyone representing them, to secure that title, resisting the enforcement of the patent of the United States, on the ground of such occuof the special answers the plaintiffs pation. Mere occupancy of the public lands the ground that it did not state and improvements thereon give no vested right to constitute a defense to the therein as against the United States, and conseraconterclaim in defendants' favor quently not against any purchaser from them.

et forth by the defendants as mpensation for improvements are these: That they were made y their grantor, he at the time occuses in good faith against all the United States, and they havthe premises of him for a valuaand having since then occupied tle thereto in like good faith he plaintiffs. The answer alleges ments consist of two buildings, and that the value of the land ed roe hundred dollars.

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[384]

[384]

To entitle a party to relief against a patent of
the government, he must show a better right to
the land than the patentee, such as in law should
have been respected by the officers of the Land
Department, and being respected would have
given him the patent. It is not suffici nt to
show that the patentee ought not to have re-edness to it of $51,000.
ceived the patent. It must affirmatively appear
that the claimant was entitled to it, and that,
in consequencn of erroneous rulings of those
officers on the facts existing, it was denied to
him. Bohall v. Dilla, 114 Ü. S. 51 [Bk. 29, L.
ed. 61].

suit was brought, not only against the Bau
which held the bonds, but also against th
sheriff of the City and County of New York
who had previously levied an attachment upo
them in an action brought by the Bank agains
Benjamin C. Bogert, upon his alleged indeb

The question as to the allowance for im-
provements is disposed of by the decision in
Deffeback v. Hawke. A person who makes im-
provements upon public land, knowing that he
has no title, and that the land is open to explora-
tion and sale for its minerals, and makes no
effort to secure the title to it as such land under
the laws of Congress, or a right of possession
under the local customs and rules of miners, has
no claim to compensation for his improvements
as an adverse holder in good faith when such
sale is made to another and the title is passed to
him by a patent of the United States.
Judgment affirmed.

True copy. Test:

The sheriff, having no interest in the con troversy between the Board and Bank, mad no contest and did not appear in the suit. Th decree was, therefore, only against the Bank

The facts of the case are briefly these: Th complainant below, the Board of Chosen Fre holders of Bergen County, is a municipal co poration having general charge of the affai of that county. It is composed of thirteen re resentatives, one from each township of th county. Its officers are a director and a cler elected by the Board, the former from one its own members. It also elects, annually, collector, who acts as treasurer of the county but is not a member or an officer of the Board It is his duty to collect the revenues of th county and to pay its expenses and liabilitie

During the late civil war, bonds were issue by the Board of Chosen Freeholders of Berge County for money to enable it to raise and equi its quota of men under the different calls fo

James H. McKenney, Clerk, Sup. Court, U. S. troops by the government. These bonds we

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BOARD OF CHOSEN FREEHOLDERS
OF THE COUNTY OF BERGEN.

(See S. C., Reporter's ed., 384-392.)

Municipal bonds-special power to issue-exer-
ercise of―overissue-estoppel-genuineness of
official signatures.

1. Purchasers of securities of municipalities hav-
ing only a special power to issue them for a partic-
ular purpose must see that the conditions pre-
scribed for the exercise of the power existed.

2. In the absence of recitals showing compliance
with the provisions of the statutory authority, the
obligor is not estopped from denying the fact of
such compliance.
3. Purchasers of municipal securities must take
the risk of the genuineness of official signatures.
[No. 31.]

Argued October 27 and 28, 1885. Decided No-
vember 16, 1885.

APPEAL from the Circuit Court of the Unit-
ed States for the Southern District of New
York.

about to mature when the Legislature, by an A passed on the 5th of April,1876, authorized th boards of chosen freeholders of the sever counties of the State to renew bonds previous issued by them for any loan made by them u der authority of law, which should thereafter b come due, and for which no provision should I made for their payment. The Act required th the new bonds should be made payable with thirty years from date, and be so issued that thr and one third per cent thereof should becon due and payable each year; that they shou draw interest not exceeding seven per cen should bear the seal of the corporation; signed by the director of the Board and i clerk, and countersigned by the collector the county, and have coupons attached to eac one for the semi-annual interest, except tha when the Board might judge it best, the bon might be registered and be made payab to the order of the purchaser and issued wit out coupons. The Act declared that all bon issued under it should be numbered, and register of the number, denomination, date issuing and name of person to whom issue if registered, and time of payment, should made by the collector in a book to be provide by the Board for that purpose.

On the 10th of May, 1876, the Board of Be gen County passed a resolution empoweri

its finance committee to reissue county bon in place of those becoming due on July! that year. Blanks for 800 bonds each for $50 with coupons attached, were accordingly p Statement of the case by Mr. Justice Field: pared by order of the committee and bound This is a suit in equity to compel the Mer-three books, with a margin or stub to each bon chants Exchange National Bank of the City of New York, one of the defendants below, and the appellant here, to surrender to the Board of Chosen Freeholders of the County of Bergen, New Jersey, 102 bonds of $500 each, drawn in the form of, and purporting to be, negotiable obligations of the Board, on the ground that they were never issued by its authority. The

The first book contained the blanks from 1 250; the second from 251 to 500, and the thi from 501 to 800, and these numbers we stamped on the backs of the books respectivel The name of the payee and the year of m turity were left unfilled in the blanks. The books were delivered to Benjamin C. Boge who was at the time collector of the count

hundred and two of them.

James Vanderbeek was then director of the | these county bonds. Thus the Bank held one
rd, and Michael M. Wygant its clerk.
A diferent times during the months of July
August, 1876, the three books were pro-
ed by Bogert at the room of the finance
emitee in the court-house at Hackensack,
County seat of Bergen County, and there
the bonds in blank were signed by Van-
k the director, and by Wygant, the
This was done at the request of Bogert,
who represented that this course was advisa-
, as some of the blanks might be injured or
before they were issued, he agreeing to
all the unused blanks. The director
and the clerk both seemed to have implicit con-
Sence in the integrity of Bogert, and it does
par that there was any hesitation on
art to comply with his suggestion. The
with the blanks in this condition were
his hands, but they had neither the seal
the county nor his signature. These were
be attached as the bonds were issued. The
Coding bonds of the county at the time
erted to $362,000, of which sum $14,000
paid in cash. To meet the balance, 696
were issued, and, with the exception of
them, were exchanged for the old bonds.
were sold and the proceeds applied tow-
the payment of the balance. A register of
beads thus issued was prepared, as required
containing a tabulated statement of the
ber of each one, to whom issued, with its
and date of maturity, and was kept by
Tetor, and was open to inspection by

Bogert died January 8, 1880, and soon after-
wards the issue of these one hundred and two
bonds, and their possession by the Bank, were
discovered, and the present suit was brought to
compel their surrender. The court below held
the bonds void, and decreed that they be de-
livered up to the complainants. From this de-
cree an appeal is taken to this court.

Messrs. Stephen P. Nash, E. L. Fancher and Alfred J. Taylor, for appellant: Where bonds are issued by the proper officials, and import a compliance with the law, a purchaser is not bound to look further.

the blanks not used one hundred and four in the possession of Bogert. Two of were substituted in place of others deand in preparation. Of the remaining one bared and two blanks, none were required or

Commissioners v. Aspinwall, 21 How. 539 (62 U. S. bk. 16, L. ed. 208); Town v. Davenport, 94 U. S. 801 (Bk. 24, L. ed. 322). See also Brooklyn v. Ins. Co. 99 U. S. 362 (Bk. 25, L. ed. 416); Hoff v. Jasper Co. 110 U. S. 53 (Bk. 28, L. ed. 68).

A recital in a bond may furnish the basis for an estoppel, but it is not essential to an estoppel.

Hackett v. Ottawa, 99 U. S. 86 (Bk. 25, L. ed. 363); Bigelow, Estoppel, 466, 467; County of Henry v. Nicolay, 95 U. S. 619 (Bk. 24, L. ed. 394); Northern Bank v. Porter, 110 U. S. 608 (Bk. 28, L. ed. 258); Dixon Co. v. Field, 111 U. S. 83 (Bk. 28, L. ed. 360).

When one of two innocent persons is to suffer from the wrong or negligence of a third, it shall be the one who enabled the wrongdoer to commit the wrong.

Michigan Bank v. Eldred, 9 Wall. 544 (76 U. S. bk. 19, L. ed. 763); Dair v. U. S. 16 Wall. 1 (83 U. S. bk. 21, L. ed. 491).

It is not competent to show fraud or irregularity in the issuance of bonds as against a bona fide holder.

Co. of Macon v. Shores, 97 U. S. 272 (Bk. 24,
for the county, nor was their use ever L. ed. 889); Cromwell v. Co. of Sac, 96 Ù. S. 51
ed in any form by its Board of Chosen | (Bk. 24, L. ed. 681).
**** Yet, on the 26th of July, 1876, Bo-
ded sixty-six of them to the Mer-
Lange Bank as security for a loan
him individually for thirty thousand
Payments on this amount were made
e to time until, on May 9, 1878, it was
to nine thousand dollars. Soon after-
however, two thousand dollars more
added to this sum, and all the bonds were
p except twenty-four. Previously to
and on the 14th of March, 1876, Bo-
bad borrowed of the same Bank forty
and dollars, and given as collateral two
purporting to be temporary loan
of Bergen County, each for twenty
ar Certificates of this character
Arent occasions been authorized by
sen freeholders to raise money The county had no general authority to bor-
on of the collection of taxes. The row money or to issue bonds or other negoti
tes, however, pledged to the Bank able instruments.

Messrs. Hamilton Wallis and J. D.
Bedle, for appellee:

The bonds having been issued without law-
ful authority, there can be no such thing as a
bona fide holder.

Mayor v. Ray, 19 Wall. 478 (86 U. S. bk. 22,
L. ed. 169); Co. of Bates v. Winters, 97 U. S.
91 (Bk. 24, L. ed. 934); Town v. Perkins, 94 U.
S. 269 (Bk. 24. L. ed. 158).

The appellant is chargeable with notice of the
character of the bonds.

Buchanan v. Litchfield, 102 U. S. 278 (Bk. 26, L. ed. 138); McClure v. Township of Oxford, 94 U. S. 432 (Bk. 24, L. ed. 129). See also School District v. Stone, 106 U. S. 184 (Bk. 27, L. ed. 90); School District v. Hall, 113 U. S. 135 (Bk. 28, L. ed. 954).

and fraudulent papers, never hav See the Statutes, Rev. N. J. 127, etc.

See

rized by the Board. In May, also, Mayor v. Ray, 19 Wall. 469 (86 U. S. bk. was defeated as collector of the 22, L. ed. 164); Hackettstown v. Swackhamer, another party took his office. After 37 N. J. L. 191.

the 28th of September following, L, the two loans were consolidated which he gave a new note for mad dollars; took up the fictitious es, and in their place deposited Bak, collateral, seventy-eight of

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