Billings v. Aspen Min. & Smelting Co., 30.

• Decision Date: 03 October 1892
• Docket Number: 30.
• Citation: 52 F. 250
• Parties: BILLINGS et al. v. ASPEN MIN. & SMELTING CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

52 F. 250

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

No. 30.

United States Court of Appeals, Eighth Circuit.

October 3, 1892

George J. Boal, Aaron Heims, C. W. Bunn, and Wolcott & Vaile, (Lusk Bunn & Hadley, on the brief,) for the petition.

T. A Green, (Nix & Nolan, on the brief,) opposed.

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

SHIRAS District Judge.

Upon the filing of the opinion in this cause, counsel for appellees submitted a petition for rehearing, supported by briefs, in which it is strenuously contended that the court erred in holding that it was not open to the appellees to aver that William J. Wood was an alien, and therefore could not acquire any right or title in the mining claim located by him in conjunction with Fisk and Fitzpatrick.

It is urged that mining interests and rights form an exception to the general rule that the right to defeat a title to realty on the ground of alienage is reserved only to the sovereign and reliance is placed upon a class of authorities of which O'Reilly v. Campbell, 116 U.S. 418, 6 S.Ct. 421 is a fair representative. In that case the defendants, claiming to be the owners of the Omaha lode, filed a survey and plat thereof in the proper land office, and applied for a patent thereto under section 2325 of the Revised Statutes. The plaintiffs, who were the owners of an adjacent mining property, known as the 'Highland Boy Lode,' filed an adverse claim for a patent to a portion of the land covered by the survey of defendants. The suit was to determine the right to this disputed portion, the judgment below being in favor of the plaintiffs. In the supreme court a reversal was sought on the ground that the findings of fact did not show that the plaintiffs were citizens of the United States. Upon this point the supreme court ruled that--

'It is true that the mineral lands of the United States are open to exploration and purchase only by citizens of the United States, or by those who have declared their intention to become such; and, had the objection been taken in the court below that such citizenship of the plaintiffs had not been shown, it might, if not obviated, have been fatal. There is, however, nothing in the record to show that it was raised below.'

There can be no question, under the provisions of section 2319 of the Revised Statutes, that, when application is made for the issuance of evidence of title to mining property, it is necessary to show that the applicant is a citizen of the United States, or has declared his intention to become such, before a conveyance of title can be properly issued; and therefore, as was held by the supreme court in the case just cited, if a party is seeking to procure the title to mining property from the United States, if taken at the proper time, the objection of alienage would prevent the acquirement of title, and such objection may be made by any one adversely interested. In such cases the sovereign is a party in fact to the proceeding, which is a direct one, for the procurement of title, and the objection of alienage, no matter by whom suggested, is based solely upon the right of the government to interpose the fact of alienage as a bar to procuring or holding an interest in realty. If, however, the grant of title, or the equivalent, is made to an alien, it cannot be attacked by any third party. Thus in Governeur v. Robertson, 11 Wheat. 332, it is said:

'That an alien can take by deed, and can hold until office found, must now be regarded as a positive rule of law, so well established that the reason of the rule is little more than a subject for the antiquary. It no doubt owes its present authority, if not its origin, to a regard to the peace of society and a desire to protect the individual from arbitrary aggression.'

The fact that when a party is seeking to procure a title to mining property from the United States it is open to any third party who asserts an adverse claim thereto to suggest the objection of the alienage of the first claimant does not meet the question arising on the facts of the case at bar. In this case Wheeler and his grantees are claiming the benefit of the location made by Wood, Fisk, and Fitzpatrick, and are claiming the right to the mine, not through some adverse location, but through what was done by the original locators. Wheeler and his grantees are now claiming title to the mine through deeds procured from the heirs of Wood, and it is certainly not open to them to rely upon the deeds as the means whereby they have procured the title to an undivided interest in the mine, and yet, when called to account for the wrongful...