Butte City Smoke-House Lode Cases. Murray v. Buol

• Decision Date: 21 January 1887
• Citation: 6 Mont. 397
• Court: Montana Supreme Court
• Parties: BUTTE CITY SMOKE-HOUSE LODE CASES. MURRAY v. BUOL and others. SAME OWSLEY and others. SAME v. MCNAMARA and others. SAME v. LOUIS and others. SAME v. TALENT and others. SAME v. REINS and others. SAME v. RICHARDSON and others. SAME v. THORNTON and others. SAME v. BEAL and others. SAME v. JACOBS and others. SAME v. NESSLER. SAME v. SIMON HAUSWIRTH and others. SAME v. K. HAUSWIRTH, Ex'r, and others. SAME v. STEELE and others. SAME v. P. J. HAMILTON and others. SAME v. SANDS and others. SAME v. J. L. HAMILTON. SAME v. HAUSER and others. SAME v. BARNARD. SAME v. MORRIS and others. SAME v. DAVIS. SAME v. J. L. HAMLTON and others. SAME v. FIRST NAT. BANK OF BUTTE. SAME v. COHEN and others. SAME v. DOVENSPECK and others. SAME v. DELLINGER and others. SAME v. BOWES. SAME v. ROACH. SAME v. SCHNIED and others. SAME v. ORNSTEIN. Adm'x etc. SAME v. FOSTER. SAME v. LAVALLE and others. STEVENS G. S. & M. CO. v. MILLS.

6 Mont. 397

BUTTE CITY SMOKE-HOUSE LODE CASES.

MURRAY

v.BUOL and others.

SAME

OWSLEY and others.

SAME

v.MCNAMARA and others.

SAME

v.LOUIS and others.

SAME

v.TALENT and others.

SAME

v.REINS and others.

SAME

v.RICHARDSON and others.

SAME

v.THORNTON and others.

SAME

v.BEAL and others.

SAME

v.JACOBS and others.

SAME

v.NESSLER.

SAME

v.SIMON HAUSWIRTH and others.

SAME

v.K. HAUSWIRTH, Ex'r, and others.

SAME

v.STEELE and others.

SAME

v.P. J. HAMILTON and others.

SAME

v.SANDS and others.

SAME

v.J. L. HAMILTON.

SAME

v.HAUSER and others.

SAME

v.BARNARD.

SAME

v.MORRIS and others.

SAME

v.DAVIS.

SAME

v.J. L. HAMLTON and others.

SAME

v.FIRST NAT. BANK OF BUTTE.

SAME

v.COHEN and others.

SAME

v.DOVENSPECK and others.

SAME

v.DELLINGER and others.

SAME

v.BOWES.

SAME

v.ROACH.

SAME

v.SCHNIED and others.

SAME

v.ORNSTEIN. Adm'x etc.

SAME

v.FOSTER.

SAME

v.LAVALLE and others.

STEVENS G. S. & M. CO.

v.MILLS.

Supreme Court of the Territory of Montana.

January 21, 1887.

Appeal from district court, Deer Lodge county.

Thirty-three actions in ejectment.

Judgments for plaintiff Murray. Defendants appeal.

These actions, called the “Smoke-house Lode Cases,” are on all fours with the Silver Bow M. & M. Co. v. Clark, 5 Pac. Rep. 570, and Talbott v. King, 9 Pac. Rep. 435. The acts being otherwise sufficiently stated in the opinion, it is only necessary to add that the Smoke-house mining claim, under which the plaintiff claims, was located in 1875, and it is not disputed that all acts requisite to maintain title were performed in respect thereof up to the issuance of the patent in 1881. Application for the Butte town-site patent was made in June, 1876, and the final entry for such town-site was made in July, 1876, and the patent issued in September, 1877. The exception referred to in the opinion as being contained in the Smoke-house patent was as follows: “Excepting and excluding, however, from these presents, all town-property rights upon the surface; and there are hereby expressly excepted and excluded from the same all houses, buildings, structures, lots, blocks, streets, alleys, and other municipal improvements on the surface of the above-described premises not belonging to the grantees herein, and all rights necessary or proper to the occupation, possession, and enjoyment of the same.” The Butte town-site patent, which was prior in date, contained the following: “No title shall be hereby acquired to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession, held under existing laws of congress.” Judgment was given in each case for plaintiff, from which defendants appeal.

Knowles & Forbis, for appellants.

W. W. Dixon, for respondent.

WADE, C. J.

The foregoing cases are actions in the nature of ejectment, the plaintiff and respondent claiming title and the right of possession under the Smoke-house quartz-lode mining claim, issued March 15, 1881, and the defendants and appellants in each case claiming title and right of possession under the patent of the Butte town-site, issued on the twenty-sixth day of September, 1877. These causes arise under the same patents, and in every material respect are similar to each other, and to the case of Talbott v. King, 6 Mont.-, S. C. 9 Pac. Rep. 434, (decided by this court at the January term, 1886,) and are parallel to the case of Silver Bow M. & M. Co. v. Clark, 5 Mont. 378,S. C. 5 Pac. Rep. 570, (decided by this court at the January term, 1885;) but as the court, under the act of congress of July 10, 1886, has been reorganized since these decisions were rendered, by increasing the number of justices, and by the appointment of two justices who did not take a part in those decisions, we have considered the questions involved herein as still open, and as if presented here for the first time.

The theory of the decisions in the case of Talbott v. King and in the case of Silver Bow M. & M. Co. v. Clark is that a valid location of a quartz-mining claim on the public mineral lands of the United States is a grant from the government to the locator thereof, and carries with it the right, by a compliance with the law, of obtaining a full and complete title; that, after such a location, the lands included within its boundaries are withdrawn from sale and pre-emption; that the patent relates back to the location, and is the consummation of the grant, which by the location had its inception; that a valid location, kept alive by representation and a compliance with law, gives to the locator, or his grantees, the right to the exclusive possession and enjoyment of the surface of the claim located; that the office of an adverse claim is to have determined, by a court of competent jurisdiction, the right to such possession; that, if an adverse claim is not made at the time and in the manner prescribed by law, the same is thereafter barred; that the issuance of a patent to a quartz-lode mining claim is conclusive upon the court in an action at law; that the discovery, location, marking, and bounding, and all proceedings up to the issuance of the patents, were regular and as required by law; that it is impossible, under a patent to a town-site, to acquire any interest in any mine of gold, silver, cinnabar, or copper, or in any valid mining claim or possession, held under existing laws; that, as to any such mine or mining claim or possession, a patent to a town-site did not take hold of, operate upon, or in any manner affect it; that an exception in a mining-claim patent, excluding therefrom all lots, blocks, streets, alleys, houses, and municipal improvements on the surface of the claim, is unauthorized and void; that an exception in a town-site patent, excluding from its operation all mines, mining claims, and possessions held under existing laws, is an exception required by the law, and is made by the law itself, and is conclusive upon the question that the government did not, and did not intend by such town-site patent to, convey any valid mine, mining claim, or possession held under existing laws.

We believe that the theory upon which the cases of Talbott v. King and Silver Bow M. & M. Co. v. Clark were decided, is correct, and the decisions in those cases are hereby approved and confirmed.

The theory of appellants seems to be that the town-site patent conveys all the grounds included within the boundaries of the town-site, regardless of prior conveyances to other parties; that, in the issuance of such a patent, the officers of the government decided that the grounds within the boundaries of the town-site were not valuable for mineral purposes; that the words in the patent excluding from its operation all mines, mining claims, and possessions held under existing laws, was not an exception that excluded any lands from the Butte town-site; that the issuance of the Smoke-house patent did not decide that the premises embraced therein was a valid mining claim and possession at the date of the issuance of the town-site patent; that, if the failure to contest the application for the Smoke-house patent waived all rights to such mining claim, then the failure of the Smoke-house claimants to contest the town-site application was a waiver of any rights to the grounds embraced in the town-site patent; that the grant derived from the location of a mining claim is an independent grant from that derived from a patent to the same ground, and that the location of a mining claim is not the first step towards the obtaining of a patent for such claim; that the patent issued for the Smoke-house mining claim was an adjudication by the land department that all lots, blocks, streets, alleys, etc., should be excepted from such patent; that the grantees accepted the patent to the Smoke-house mining claim with those exceptions in the same, and are bound thereby; that the applicants were not barred from proving their alleged estoppel; and that, as both these parties claim by patents, the court should have gone back of the patents, and determined from the proof who had the better right.

We do not think the acts of congress in relation to acquiring title to mining claims and town-site warrant or uphold this theory of appellants. Why should the court have gone behind the patents, and ascertained from the proofs which of these parties had the better right, when it was not possible for either to have acquired any right or title to the property of the other by virtue of his patent? Their patents do not cover or touch the same property. By the express terms of the law, and by the express terms of the town-site patent, all valid mines, mining claims, and possessions held under existing laws were excluded from the operation of that patent. At the time of the issuance of the town-site patent in 1877, the Smoke-house location had, for more than two years, been a valid mining claim and possession. This is evidenced by the subsequent issuance of a patent for such mining claim in pursuance of a location in 1875. There are no authorities that dispute the doctrine that the patent relates back to the location, and protects it. The location is the inception of the grant, of which the patent is the consummation. The government does not go through the performance of making two grants of one mining claim to the same person, or to his successors in interest.

The Smoke-house location, being a valid mining claim at the time, was expressly excepted from the operation of the town-site patent, and it was not possible by such a patent to have obtained any interest therein or title thereto. There is no conflict between a town-site patent and a mining-claim patent, and can be none. They evidence separate and distinct grants, and cannot conflict with one another. The one conveys a mining claim, an independent grant, and the other conveys ground for a town-site, from which, by the law,...