Bonner v. Meikle

• Decision Date: 07 December 1896
• Docket Number: 633.
• Citation: 77 F. 485
• Parties: BONNER v. MEIKLE et al.
• Court: U.S. District Court — District of Nevada

77 F. 485

BONNER v. MEIKLE et al.

No. 633.

United States Circuit Court, D. Nevada.

December 7, 1896

The character of this suit is shown by the following averments of the complaint: 'The said plaintiff complains of said defendants, and for cause of action alleges: That he, said plaintiff, and numerous other parties whom it is impracticable to bring before said court, and for whose benefit, as well as his own, he brings this action, are residents of and occupants of what is known as the 'Town of Lamar,' in the county of Lincoln, state of Nevada. That said town is situated upon unsurveyed nonmineral land and is a part of the public domain of the government of the United States. That said plaintiff, and those for whose benefit he brings this action, and their grantors and predecessors in interest, are, and for a long time, to wit since the 1st day of April, A.D. 1892, have continuously been, in the possession and occupation of the land and ground upon which said town is built, and have made large and valuable improvements thereon, consisting of dwelling houses stores, and places of business of all kinds, of more than $100,000 in value; and that said plaintiff has himself buildings and improvements thereon of the value of more than $1,600; and that he and they are the owners of, in the possession of, and entitled to the possession, as against all parties except the government of the United States, of said improvements and the land upon which they are situated. That said defendants unjustly and without right, and adversely to said plaintiff and those for whose benefit he brings this action, claim to be entitled to the possession of said land and ground through and by a pretended location of a lode mining claim, which they designate and call the 'Naid Queen Mining Claim.' That said defendants have applied to the United States land office at Carson City, Nevada, for a patent to said Naid Queen mining claim, and that, within the time allowed by law, the said plaintiff duly made and filed in said land office a protest and adverse claim against said application for a patent to said Naid Queen mining claim. That, at the time of the pretended location of said Naid Queen mining claim, no lead, lode, ledge, or deposit, or ore or rock in place bearing mineral had been discovered at what was claimed to be the point of discovery and location, or at any other place within the surface boundaries of said mining claim; and said plaintiff alleges, upon his information and belief, that none has yet been discovered within the limits of said claim as located or as surveyed for patent, but the whole of said mining claim is nonmineral, and of no value for mining purposes, and not patentable under the mining laws of the government of the United States. That by said wrongful attempt to claim the property of said plaintiff, and those for whose benefit he brings this action, made by said defendants as aforesaid, the said plaintiff and those for whose benefit he brings this action have been damaged in * * * the sum of $2,000. ' The plaintiff prays for a decree 'that the title and right to the possession of himself and all the parties who have town property and improvements upon the surface of the said pretended Naid Queen mining claim, as the same has been surveyed for patent, be affirmed and quieted; that said defendants and none of them have any right or claim thereto, or to a United States mineral patent to any portion thereof; and that said plaintiffs have judgment against said defendants for the sum of $2,000, and costs of protest and suit'; and for general relief.

After service of summons upon the defendants, and before the time for answering had expired, the petitioner herein, with other defendants in said suit, petitioned the district court of Nevada, wherein said suit was brought, for the removal of said suit to this court, upon two grounds, namely: '(1) That said suit is one arising under the laws of the United States, and presents a substantial dispute and controversy, which depends wholly upon the construction and effect of the acts of congress of the United States, and particularly upon section 2380, to and inclusive of section 2394, Rev.St., and upon section 16 of 'An act to repeal timber culture laws and for other purposes,' approved March 3, 1891. (2) That from prejudice and local influence the defendants will not be able to obtain justice in said state court, or in any other state court of the state of Nevada to which he may, under the laws of said state, have the right, on account of such prejudice and local influence, to remove said suit. ' After a hearing upon such application, the judge of the state court made an order as follows: 'It is ordered by the court in the above-entitled case: The court holds that the petition for removal to the United States court does not show that any federal question is involved in the case; that the other question raised in the petition, as to whether the defendants can obtain justice in the courts of this state, is not for this tribunal to decide. ' The court declined to approve a bond tendered by the petitioner for the removal of the cause. Thereafter the petitioner herein caused a copy of the petition for removal, and of the rulings of the state court, to be filed with the clerk of this court, with a view of moving for a writ of certiorari to have the rulings of the state court reviewed. Subsequently, before any such motion was made, the petitioner prepared and filed in this court an original petition for the removal of said suit upon substantially the same allegations of facts and grounds for removal. The facts set forth in the petition concerning the local influence and prejudice are set out at great length. Among other things, the petitioner states the fact to be, 'and shows to the court, that great prejudice exists against the said defendants and each of them, and particularly against your petitioner, and great local influence exists in favor of said plaintiff; * * * that from prejudice and local influence the defendants, and particularly your petitioner, will not be able to obtain justice in the state court, or in any other state court of the state of Nevada to which he may, under the laws of said state, have the right, on account of said prejudice and local influence, to remove said cause; * * * that said suit cannot be fully or justly determined as to any of the defendants in any state court of the state of Nevada, without being affected by such prejudice and local influence which exists in said Lincoln county, Nevada, against your petitioner, J. R. De Lemar, and all of the defendants, and against their right to recover in said action, and on account of the local influence of the plaintiff (and those for whom he sues) throughout said state. ' After setting out the claim of defendants to the Naid Queen mine, their application for a patent, the protest of the plaintiffs, and commencement of this suit, the petition avers: 'That at present a large town known as 'De Lemar' exists on and around said mining claim, and those portions of said town which are not upon said mining claim are situated upon other mining claims which were located and are now held and claimed as is the said Naid Queen; and hence all of the residents of said town have a great sympathy for plaintiff and those for whom he claims to sue, who reside upon said Naid Queen mining claim. That, in order to oppose the issuance of said patent to defendants, it became necessary to employ attorneys and incur great expense. That to that end the citizens of said town have held various mass meetings, at which violent and inflammatory speeches were made, and resolutions passed, reflecting upon the defendants, and impugning their rights and motives in asserting their claim to said mine; and said residents of said town have subscribed and agreed to pay, and have paid, large sums of money to defray the expenses of plaintiff's contest and adverse claim and the expenses of this suit; and plaintiff and his co-adjutors openly and persistently claim and assert that defendants are land grabbers, and will take the last shingle off the roofs of their houses, and similar false and prejudicial falsehoods. * * * That your petitioner knows that said claims of defendants to said mine have been the subject of general discussion throughout said state, and especially among all of the residents of Lincoln county, Nevada, and that most of said residents have expressed opinions inimical to the defendants in the premises. That their said rights are and have been discussed by stage drivers, public carriers, bar and saloon keepers, and others throughout said county, and in the counties adjoining said Lincoln county. ' There are other statements as to the general prejudice existing throughout the entire state, and of the judges of the state courts, which it is deemed unnecessary to quote. The petition avers that the amount and matter in dispute in said suit, exclusive of interest and costs, exceeds the sum of $2,000. The petition also avers that petitioner is, and was at the time of the commencement of this suit, a resident of the state of New York, and that the plaintiffs and those whom he represents were and are citizens of the state of Nevada. The petition is verified by H. A. Cohen, one of the defendants, and the attorney in fact of petitioner, J. R. De Lemar.

George S. Sawyer, for plaintiffs.

Robert M. Clarke, for defendants.

HAWLEY District Judge (orally).

Without attempting to review the...