Aurora Hill Consolidated Mining Co. v. 85 Mining Co.

• Decision Date: 18 April 1888
• Citation: 34 F. 515
• Parties: AURORA HILL CON. MIN. CO. v. 85 MINING CO. et al.
• Court: U.S. District Court — District of Nevada

34 F. 515

AURORA HILL CON. MIN. CO. v. 85 MINING CO. et al.

United States Circuit Court, D. Nevada.

April 18, 1888

Syllabus by the Court

An applicant for a patent to a mining claim, who has made final entry, paid the purchase money for the land embraced in the survey of the claim, and has obtained his certificate of purchase therefor, is not obligated to continue the annual expenditure upon the claim required by section 2324, Rev St., pending final decision upon his application, and issuance of patent.

An entry and certificate of purchase, so long as they remain uncanceled, are equivalent to a patent, so far as the rights of third parties are concerned.

A mining location made without prior right of entry upon the ground is void. There can be no valid location made without prior right of entry. Location confers no right of entry where such right did not previously exist.

The decisions of department officers upon questions of law or fact are not subject to collateral attack. Upon questions of fact their decisions are conclusive upon all parties; upon questions of law their decisions can only be reviewed in a proper case made in a direct proceeding for that purpose. Evidence is not admissible, in an action at law, to show error in the decision of an officer of the land department upon any matter submitted to such officer for his decision.

Generally any person vested with immediate right of possession can maintain ejectment. As against a trespasser, prior possession will support the action. As to mining claims, possessory title is sufficient. Rev. St. Sec. 910.

Rule adopted in this case.

R. M Clark, for plaintiff.

A. C Ellis, for defendants.

Before SABIN, District Judge.

SABIN J.

This is an action of ejectment, brought to recover possession of a certain mining claim, known as the 'Prospectus' claim or mine, containing 1,500 feet along the lode or vein, by 200 feet in width, situate in Esmeralda mining district, Esmeralda county, Nve., together with damages in the sum of $10,000 for ores alleged to have been removed therefrom, and converted by defendants to their own use. The mining claim is particularly described in the complaint by metes and bounds, according to the United States official survey thereof. The plaintiff is a corporation, organized under the laws of the state of California, and engaged in mining in said Esmeralda mining district. The defendants are citizens and residents of the state of Nevada. The case was tried before the court, a jury having been waived, in writing, by the respective parties. The undisputed facts in the case are simple. On March 12, 1877, Edward T. Greeley duly located the mining grounds in controversy, and entered into possession of the same. Prior to 1880, he conveyed the same to his brother, James L. Greeley, who took possession thereof, and continued to work and develop the mine. In June, 1880, James L. Greeley bonded the mine to H. G. Blasdel, who then took possession thereof, and continued the work thereon. August 19, 1880, Greeley made application in due form at the local land-office, in the proper land district, for a patent to the mine. The usual and necessary proceedings were had under this application for patent by Greeley, and on November 20, 1880, he made final proof of entry, and paid the purchase money for the land embraced in the survey of said claim, and received from the officers of said land-office the usual certificate of purchase issued in such cases; which entry and certificate are now in full force and effect, uncanceled, and unrevoked. No adverse claim or protest was filed in the land-office to the issue of a patent for any part of the claim for which patent was sought. The proceedings in the local land-office being regular in all respects, and those officers being satisfied with the proofs submitted, they, on November 20, 1880, forwarded the papers in the case to the commissioner of the general land-office, at Washington, for final action. The papers transmitted, as appears from the records of the local land-office, were: (1) Application for patent; (2) plat of survey; (3) field-notes; (4) proof of posting notice and diagram on claim; (5) certified copy of notice of location; (6) affidavit of citizenship; (7) certified copy of district mining laws; (8) agreement of publisher; (9) register's certificate of posting in office; (10) proof that plat and notice remained on claim during 60 days of publication; (11) clerk's certificate of no suit pending; (12) proof of publication; (13) affidavit of $500 improvements; (14) statement of fees and charges; (15) register's final certificate of entry; (16) receiver's receipt. From subsequent correspondence it would seem that these papers were duly received at the general land-office, at Washington. On February 1, 1882, the commissioner of the general land office, by letter of that date, notified the register and receiver of the district land-office that he required further proof of the posting of the notice and plat on the claim during the 60-days period of publication. This proof was not furnished, and in 1885, and again in 1886, the commissioner again called upon the register for this additional proof. In response thereto, in January 1887, H. G. Blasdel submitted his affidavit, as agent for said Greeley, showing the posting of said notice and plat on the claim for the requisite time, which affidavit was duly forwarded to the commissioner. In 1886, and after the commencement of this action, defendants filed in the office of the commissioner a protest against the issue of a patent to Greeley, or his successors in interest, for said claim, alleging that the plat and notice were not posted on said claim for the period by law required. Thereafter the commissioner fixed a day for hearing further proof as to the posting of said plat and notice, before the officers of the local land-office, which hearing has not yet been had. After Blasdel's entry upon the claim in June, 1880, he continued work and improvements thereon, and on about October 20, 1880, he paid to Greeley the purchase money for the claim, and received from him a deed of conveyance of the same. As Greeley had made application for patent for the claim, it was understood between him and Blasdel that proceedings thereunder should continue for the benefit of Blasdel or his successors in interest. By mesne conveyances the title to the claim passed to plaintiff in August, 1881, when it took possession thereof, and continued work thereon, expending several hundreds of dollars in developing and improving the mine, and extracting ore therefrom. Plaintiff continued in possession of the mine during the years 1881, 1882, and 1883, working upon and improving the same. Little, if any, work was done on the mine in the year 1884 by plaintiff, and none in the year 1885. During the year 1884, and until the mine was taken possession of by defendants, plaintiff maintained upon the claim its tracks, cars, shops, etc., and the survey posts set by the United States surveyor when surveyed by him for patent. At no time had or has it abandoned said claim or mine, or ceased in its efforts to obtain patent therefor. It is not questioned that plaintiff's grantors had expended more than $500 in work and improvements on the claim prior to application for patent, or that plaintiff during the years 1881, 1882, and 1883, annually expended upon said claim at least $100, if not more. It is admitted by plaintiff that he did no work thereon in the year 1884. On the 1st of January, 1885, the grantors of defendants, together with some of the defendants in person, relocated said mine, referring to it by name in their notice of location, and renamed it the '85 Mine.' Their notice of relocation of the mine was duly recorded, and under it they entered upon the same, and commenced work thereon. They have retained possession of the same to the present time, and, until the commencement of this action, had annually expended more than $100 in work upon the mine, and have extracted and removed from it more than 500 tons of ore, of the net value of $2.50 per ton.

Defendants contend that the mine became and was subject to relocation at the date of their attempted relocation thereof, by reason of the failure of plaintiff to do the annual work thereon required by section 2324, Rev. St. U.S. It is conceded that more than one year had elapsed from the date of the last work done on the mine by plaintiff, in 1883, to the date of defendants' relocation thereof. It is upon this contention of defendants that the rights of the parties in this action depend. I am not aware that this question of plaintiff's obligation to continue the annual expenditure of $100 upon the claim pending his application for a patent has ever been judicially decided. If such is the case, I have not found, nor have I cited to, such decision. It has, however, been ruled upon, and decided adversely to defendants, both by the commissioner of the general land-office, and by the secretary of the interior department; and by each of them in a manner so able, strong, and just as to require but little to be further said in support of their conclusions and decisions.

Both of these officers hold that after entry and payment of purchase money for the mine, the applicant is not required to expend any further sum of money upon the mine, pending the final decision upon his application, and the issue of patent. I fully concur in the opinions by these officers expressed upon this question, and, without quoting from them in extenso refer to them as the true and correct construction of the law applicable thereto. The commissioner's decision will be found in Sickels, Min. Dec. (1881,) pp. 334-392, rendered Sept. 26, 1878; that of the secretary of the...