Becker v. Pugh

• Decision Date: 04 March 1887
• Parties: BACKER v. PUGH and others.
• Court: Colorado Supreme Court

13 P. 906

9 Colo. 589

BACKER v. PUGH and others.

Supreme Court of Colorado

March 4, 1887

Appeal from district court, Gilpin county.

L C. Rockwell, for appellant.

Teller & Orahood, for appellees.

HELM J.

This action was brought by appellees to support an adverse filed in the United States land-office. The decree or judgment was rendered in 1882. At that time, therefore, the act of congress of March 3, 1881, was in force. This act reads as follows: 'Be it enacted,' etc., 'that if, in any action brought in pursuance of section 2326 of the Revised Statutes, title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land-office or be entitled to a patent for the ground in controversy until he shall have perfected his title.'

It will be observed that, until plaintiff below established title to the ground in controversy, he could not recover a verdict or judgment. And this remark is equally true of defendant below, who was the applicant for patent. Thus, it becomes important to ascertain the meaning of the statutory phrase, 'title to the ground in controversy.' A more specific statement of the question would be, can a recovery, in actions brought to support adverse proceedings, be maintained by proof of occupancy merely of the premises in dispute; or must either party, before he can secure judgment, show a compliance with the statutes, state and federal, and also miners' rules and regulations in force, relating to the location of mining claims upon the public domain?

A careful examination of sections 2322, 2324, 2325, Rev. St. U.S., in connection with other provisions in the act of congress on the subject of lode claims, leads us to adopt the second of the foregoing views. A fair construction of the provisions referred to is that the applicant for patent must show a compliance with the location statutes, rules, and regulations aforesaid. This view is taken by the United States land-office. Section 31 of the Land-Office Rules, revised and published in 1881, reads as follows: 'Attached to the field-notes so filed must be the sworn statement of the claimant that he has the possessory right to the premises therein described, in virtue of a compliance by himself (and by his grantors, if he claims by purchase) with the mining rules, regulations, and customs of the mining district, state, or territory in which the claim lies, and with the mining laws of congress; such sworn statement to narrate briefly, but as clearly as possible, the facts constituting such compliance, the origin of his possession, and the basis of his claim to a patent.' Section 32 of the Land-Office Rules commands the applicant, in all cases where the mining records are not destroyed by fire or otherwise lost, to file a true and correct copy of his location, as shown on the records, attested by the seal of the recorder, or, if he have no seal, by his oath. Section 48, relating to the notice filed in the land-office by the adverse claimant, requires a statement under oath concerning his location record, similar to that provided in section 32 for the applicant.

These, and other land-office rules, clearly show the view taken by the executive department of the general government of the statutes in question.

This view is supported by considerations both of propriety and justice. The citizen is given the privilege by the federal government of appropriating a lode or vein which he discovers upon the public domain, and of securing the exclusive possession thereof prior to patent. It is very seldom, in the nature of things, that he can actually possess and occupy the full 1,500 feet of the vein allowed him, to say nothing of the surface ground which he is permitted to take. Location statutes, rules, and regulations are framed for the purpose of enabling him to hold, prior to patent, constructive possession, as against all other persons, of that part of the vein or veins and surface ground which he cannot and does not actually hold in pedis possessio. By compliance with the statutes and regulations, and by such compliance alone, can he prevent other miners and prospectors from appropriating those portions of his claim of which he is not in the actual occupancy. Armstrong v. Lower, 6 Colo. 582. It is eminently proper that, before he shall be permitted to procure from the government a title in fee-simple to the ground which he professes to hold, and has held by such constructive possession, he should be required to show his good faith by proving compliance with the statutes and regulations through which alone the constructive possession is given.

Authorities other than the federal statutes themselves need scarcely be cited to establish the proposition that, in order to constitute a valid location, compliance with miners' rules and regulations in force at the time, as well as with statutes on the subject, is essential; but counsel...