Billings v. Aspen Min. & Smelting Co.

• Decision Date: 05 July 1892
• Docket Number: 30.
• Parties: BILLINGS et al. v. ASPEN MINING & SMELTING CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

51 F. 338

BILLINGS et al. v. ASPEN MINING & SMELTING CO. et al.

No. 30.

United States Court of Appeals, Eighth Circuit.

July 5, 1892

T. A Green and Nix & Norlin, for appellants.

George J. Boal, Aaron Heims, and T. H. Edsall, (Geo. D. Reynolds, of counsel,) for appellees.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District judge.

SHIRAS District Judge.

The bill in this cause was filed in the circuit court of the United States for the district of Colorado, for the purpose of asserting the rights of the complainants, as heirs at law of one William James Wood, to an interest in a mining property situated in Pitkin county, Colo., and known by the name of the 'Emma Mine.' Previous to April, 1870 William James Wood resided at Owen Sound, in Canada, being a subject of Great Britain. On April 10, 1870, he came to the United States for the purpose of bettering his financial condition and prospects, leaving at Owen Sound his wife and family, save one son, George, who accompanied him to the United States. The father and son went to Greenwood county Kan., in which county the father preempted certain of the public lands, and lived thereon for some time, going thence to Colorado. On the 24th day of April, 1880, the said William J. Wood, Archie C. Fisk, and Andrew Kirkpatrick discovered and located the mine afterwards known as the 'Emma Mine,' and caused the same to be duly surveyed, and the boundaries of the claim to be marked with posts, and prepared and had filed in the recorder's office of Pitkin county a proper location certificate, as required by the provisions of the statutes of the United States, the same being filed July 26, 1880. In October, 1880, Wood died at Leadville, Colo., intestate, leaving as his heirs his widow, Margaret, and his children, George, William H., Orman James, Matilda, Charles E., Thomas E., and Hiram A. In 1881, George Wood died in Kansas, leaving a widow, Margaret, surviving him, who has since married James Cavner. Matilda Wood married William Scott, and died in 1882. Archie C. Fisk in the spring of 1883 caused to be published in a newspaper a notice addressed to William J. Wood and his administrator, stating that he had expended on said Emma lode $100 for work and improvements done during the year 1882, and that repayment of his share must be made by said Wood within 90 days or his interest would become the property of said Fisk. When this publication was made Fisk knew of the death of his colocator Wood, but he did not attempt to give notice to his heirs. On the 3d day of March, 1884, the said Fisk conveyed his interest in the Emma mine to one John Hulbert, who made the purchase and took the conveyance for the use and benefit of Jerome B. Wheeler, who by other conveyances, not necessary to be stated in detail, had become possessed of the title of Kirkpatrick in the mine.

A claim was asserted to the Wood interest through one Almira Brown, who claimed to be the widow of William J. Wood, and who transferred an interest of one sixth to Emma Moody, wife of Henry Moody, and litigation was had over the claims thus asserted. It may be said, in passing, that the claim thus based upon the alleged relation of husband and wife between William J. Wood and Almira Brown seems to have been wholly without foundation. By reason, however, of this and other litigation, Jerome B. Wheeler, in 1885, deemed it necessary to fortify his claim to the mine by obtaining conveyances from the heirs of William J. Wood, and to that end James H. Devereux, agent for Wheeler, went to Owen Sound, Canada, with other parties acting in the same interest, and there ascertained that the widow of William J. Wood was still living, having since his death intermarried with William Billings. Henry Moody had gone to Owen Sound on the same errand, and it became a race of diligence as to which one should procure a deed or release from Mrs. Billings. The result was that Mrs. Billings executed a release of her interest in the mine for the sum of $2,500 to David Robertson, of Chicago, Ill., but in fact for the benefit of Wheeler, the deed bearing date of April 15, 1885. Devereux then went to Chicago, and there succeeded in getting a release from James O. Wood, or Orman J., as he was christened, a son of William J. Wood, of his interest in the property for the sum of $230. Through the agency of one P. J. Connor, acting in the interest of Wheeler, who went to Port Arthur, Canada, for that purpose, a deed was obtained from Charles E. Wood releasing his interest in the mine for the sum of $266.66.

On the 18th of April, 1885, Mrs. Billings executed a deed of her interest in the Emma mining claim to Richard J. Doyle, 'to hold the same upon the trusts and according to certain terms which have been declared between the said party of the first part and second part hereto. ' In the month of May following James O. and Charles E. Wood executed deeds of like import to Doyle, covering their interest in said mine, all of which deeds were placed on record in Pitkin county, Colo. These deeds were executed because the grantors claimed that they had been misled in releasing their rights to Wheeler, and their purpose was to have Doyle act in their behalf in asserting their claim to the property.

In November, 1885, Jerome B. Wheeler, with other parties owning interests in mining properties adjacent to the Emma mine, organized a corporation known as the Aspen Mining & Smelting Company, and on the 30th of November, 1885, Wheeler executed a conveyance of his interest and title in and to the Emma mine to said corporation. For some reason, not made apparent in the testimony, Doyle failed to bring any proceedings for the assertion of the rights of Mrs. Billings and her sons, and finally, in 1887, Mrs. Billings went to Colorado for that purpose; and on the 14th of April, 1888, the present proceedings were instituted, wherein Margaret Billings, James O. Wood, Charles E. Wood, and Margaret Cavner are complainants, and the Aspen Mining & Smelting Company, Jerome B. Wheeler, Clinton Markell, Thomas E. Wood, William Wood, and Hiram A. Wood are named as defendants. It appearing that William Wood was insane, and that Hiram A. was a minor, William E. White was appointed guardian ad litem for them, and filed an answer in their behalf, claiming that each of the named parties was, and continued to be, the owner of an undivided one thirty-sixth interest in the Emma mining property, and therefore joined in the prayer of the bill for an accounting. Thomas E. Wood answered the bill, asserting that he was the owner of one thirty-sixth interest in said property, and likewise joined in asking for an accounting from Wheeler and the Aspen Company. At the November term, 1889, William G. Scott, as the representative of the interest of Matilda Scott, deceased daughter of William J. Wood, sought to be admitted as a complainant in the proceedings, but his petition in that respect was denied; and at the same time, on motion of complainants, the bill was dismissed as to Clinton Markell. On the 10th day of May, 1890, the cause was finally heard upon the issues presented by the bill, the answers of Jerome B. Wheeler, and of the Aspen Mining & Smelting Company, the replications thereto, with the evidence adduced on behalf of all the parties, and on the 20th of October, 1890, a decree was entered dismissing the bill upon the merits. Thereupon the cause was appealed to this court by the complainants, and has been finally submitted, after full argument, by counsel for the respective parties.

The first position taken by counsel for the defendants is that it is necessary for the heirs of William J. Wood to prove that when he joined with Fisk and Kirkpatrick in the location of the mine, in 1880, he had become a naturalized citizen of the United States or had properly declared his intention to become such. By section 2319 of the Revised Statutes, it is enacted that 'all valuable mining deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase by citizens of the United States, and those who have declared their intention to become such,' etc., and the contention of counsel is that as it is not denied that, when Wood came to the United States in 1870, he was then a subject of Great Britain, his heirs must show that he had become a naturalized citizen of the United States, or had declared his intention to become such before the location of the Emma mine, in the spring of 1880, before they can assert title to the mine through him. It would certainly be inequitable to rule that if Wood were living his colocators, Fisk and Kirkpatrick, or any one claiming under them, could deprive him of his interest in the mine simply because he was an alien. To hold that, after Wood had expended time, labor, and money in prospecting for and locating the mine conjointly with them, they could oust him therefrom, or refuse him the right of participating in the proceeds thereof, would be nothing short of legalized robbery. His alienage, if it existed when the mine was located, would not have the effect of transferring his interest to his colocators. The United States might, by proper proceedings, have deprived him of the benefits of the location made by him, but Fisk and Kirkpatrick could not avail themselves of the right of escheat belonging to the government. Thus in Craig v. Leslie, 3 Wheat. 563, it is said:

'Now, what is the situation of an alien? He can not only take an interest in land, but a freehold interest in the land itself, and may hold it against all the world but the king, and even against him, until office found, and he is not accountable for the

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