Batterton v. Douglas Mining Co., Ltd.
| Decision Date | 13 December 1911 |
| Citation | 120 P. 827,20 Idaho 760 |
| Parties | JAMES L. BATTERTON, Appellant, v. DOUGLAS MINING CO., LTD., Respondent |
| Court | Idaho Supreme Court |
MINERAL ENTRY-RECEIVER'S RECEIPT-CANCELLATION OF ENTRY-SEGREGATION FROM PUBLIC DOMAIN-ANNUAL ASSESSMENT WORK.
(Syllabus by the court.)
1. An applicant for patent to mineral lands is not required to do annual assessment work after making and submitting his final proofs on his patent application and the acceptance and allowance of the same and the issuance to him of a receiver's receipt from the local land office in conformity with the statute and the rules and regulations of the general land office.
2. The acceptance and allowance of the entry and final proofs made by a claimant for the public mineral lands of the United States and the issuance to such claimant of a final receipt of purchase by the officers of the local land office in conformity with the statute and the rules and regulations of the general land office, constitutes a segregation of the land so claimed from the public domain, and such lands are no longer subject to entry or location under the general land laws until such entry is set aside or vacated and canceled.
3. A trespasser upon the lands or possession of another cannot initiate a legal right which in itself is dependent for its inception upon a rightful actual entry on such land in order to do the thing necessary to initiate such right.
APPEAL from the District Court of the First Judicial District for the County of Shoshone. Hon. W. W. Woods, Judge.
An adverse action to determine the right to certain mining claims. Judgment for defendant and plaintiff appeals. Affirmed.
Judgment affirmed. Costs awarded in favor of respondent. Petition for rehearing denied.
Allen & Allen, and H. H. Taylor, for Appellant.
It is only when the applicant for patent has complied with all the terms and conditions which entitle him to a patent that such effect is to be given to the final receiver's receipt. (Wirth v. Branson, 98 U.S. 118, 25 L.Ed. 86.)
This was a decision of the land department upon the facts in a matter which the department was authorized to hear and determine, and is final and absolutely conclusive upon the respondent upon the two questions, viz.: that the affidavit upon which the final receiver's receipt was obtained was false, and that the applicant for patent (respondent) had not complied with the law to entitle it to the receipt. (Shepley v. Cowan, 91 U.S. 340, 23 L.Ed. 428; Johnson v. Towsley, 13 Wall. (U.S.) 83, 20 L.Ed 485; Moss v. Dowman, 176 U.S. 415, 20 S.Ct. 429, 44 L.Ed. 526.)
"Fraud vitiates any transaction based thereon and will destroy any asserted title to property no matter in what form the evidence of such title may exist." (United States v. Steenerson, 50 F. 504, 1 C. C. A. 552; Murray v. Polglase, 23 Mont. 401, 59 P. 439.)
The decision of the acting commissioner to the effect that the affidavit upon which the entry was obtained was false, and that the respondent had not complied with the law in obtaining the entry, and the cancellation thereof upon those grounds, left the respondent as though the entry had never been made, and, therefore, the respondent's location became forfeited for lack of work for the year 1907 and the relocations of the appellant were good. (Murray v. Polglase, 17 Mont. 455, 43 P. 505; Murray v. Polglase (2d Appeal), supra; United States v. Steenerson, 50 F. 504, 1 C. C. A. 552.)
John P. Gray, for Respondent.
"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." .)
The entry of public land under the laws of the United States, whether legal or illegal, segregates it from the public domain, appropriates it to private use, and withdraws it from subsequent entry or acquisition until the prior entry is officially canceled and removed. (James v. Germania Iron Co., 107 F. 597, 46 C. C. A. 476.)
This is what is commonly known as an adverse action brought under sec. 2326 of the Revised Statutes of the United States, for the purpose of determining the respective rights of the parties to certain lode mining claims situated in Shoshone county. The Grant, Gordon and Douglas lode mining claims were located in the year 1900. The respondent corporation acquired title to these claims through mesne conveyances from the original locators, and during the year 1907 caused the claims to be surveyed for United States patent, and on October 22d of that year made application to the United States land office at Coeur d'Alene for patent. Notice of the application was duly published and was also posted on the claims. Final proofs were made and accepted by the land office and the purchase price was paid and receiver's receipt was issued for these claims on December 31, 1907, and delivered to the respondent. The required amount of work necessary to procure a patent had been done on these claims but no work was done for the year 1907. On January 1, 1908, the appellant, Batterton, who had for some months past been living in a cabin situated on these claims, relocated the claims. He made this relocation on the theory that the respondent was obliged to do the assessment work for the year 1907 in order to hold the claims, and that such work not having been done, the ground was open for relocation. On January 16th appellant filed his protest in the United States land office at Coeur d'Alene against the issuance of patent to respondent, and alleged therein that the plat had not remained posted upon the ground during the entire period of publication. In support of this protest, appellant filed his affidavit showing that the plat of survey and copy of notice of application for patent, which had been posted on the claim on the 18th of October, disappeared therefrom on about the 4th of December and was not thereafter posted, and that no notice or plat was posted on the claim from December 4th to December 31st. A hearing was ordered, and the local land office overruled and denied the protest and allowed the entry to stand. An appeal was taken to the commissioner of the general land office, where the ruling of the local land office was reversed or rather modified. After reciting the history of the proceedings, the commissioner, or rather the assistant commissioner, held as follows:
The general land office held that all the proceedings were fair and regular, but further held in substance and effect that the failure of the applicants for patent to stand guard over the notice and plat of survey and see that they were kept posted every day on the claim during the sixty-day period of publication was fatal to the proceedings, and that it was therefore necessary to have a new publication. The commissioner, however, held that it would not be necessary to prosecute new proceedings other than to republish and after the period of publication to file new proofs. This was apparently done on the theory that notice by posting for the full sixty-day period should be given to all third parties to enable them to file adverse suits in the event they desired to do so. The commissioner proceeded, however, to hold that the protestant, appellant herein, had no standing as a locator of the claims and that the land office should pay no attention to his claim. This latter holding, however, was mere dicta and wholly beyond the authority or jurisdiction of the land office to pass upon. The validity of the title of an adverse claimant must be determined by the courts and not by the land office. It is so provided by the act of Congress (sec. 2326, U.S. Rev. Stats.).
Two questions are presented here for consideration: First, Is the applicant for patent to a mining claim required to do annual assessment work after making his final proofs and the issuance to him by the officers of the local land office of the receipt of purchase, or, as it is commonly designated, the receiver's receipt? Second: Is mineral land subject to location after the making of final proof for patent and the issuance of a receiver's receipt and prior to the cancellation thereof where it is afterward determined that the entry was for some cause invalid or void and should be held for cancellation?
Addressing ourselves to the first question suggested, we find that the authorities seem to generally agree that the locator of a mining claim and applicant for patent is not required to do annual assessment work after making final proofs under his patent application and the issuance to him of a receiver's receipt in conformity with the statute and rules and regulations of the...
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