Clipper Min. Co. v. Eli Min. & Land Co.

• Decision Date: 08 April 1902
• Citation: 29 Colo. 377,68 P. 286
• Parties: CLIPPER MIN. CO. v. ELI MINING & LAND CO. et al.
• Court: Colorado Supreme Court

68 P. 286

29 Colo. 377

CLIPPER MIN. CO. v. ELI MINING & LAND CO. et al.

Supreme Court of Colorado

April 8, 1902

Error to district court, Lake county.

Action by the Eli Mining & Land Company and others against the Clipper Mining Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Steele J., dissenting.

On Rehearing.

Thomas, Bryant & Lee, for plaintiff in error.

John M Maxwell, John A. Ewing, Charles Cavender, and Walter W Davis, for defendants in error.

CAMPBELL C.J.

The plaintiff in error (defendant below) owns four lode mining claims, situate in Lake county, called the 'Capital,' 'Clipper,' 'Congress,' and 'Castle' lodes, and the defendants in error (plaintiffs below) own the 'Searl' placer mining claim, within the boundaries of which these lode claims are located. The present controversy relates to the territory thus in conflict. The placer was the prior location, and was made in the year 1877. The plaintiff in error having made application in the land office for patent of its lode mines, the defendants in error filed therein an adverse claim, and within the statutory time brought this action in the district court of Lake county to enforce it. The plaintiffs rely upon a prior location of the conflicting territory as part of their placer claim. The complaint is in the ordinary form in actions of this character. After a general denial of the material allegations of the complaint, the answer sets up four separate defenses, all of which grow out of the following facts, which, in varying language, are set up in each defense: On the 12th of December, 1877, A. D. Searl and others located the Searl placer, and on the 5th of July, 1878, applied for a patent therefor. Numerous protests were made against it, and on the 10th of November, 1882, an amended application was filed, against which protests were likewise made, upon the ground that the same was not placer ground, and was only valuable for lode claims, or town site purposes. The land department ordered a special investigation to ascertain the character of the ground and the good faith of the applicant. The special agent declared that the land was not placer ground, and on the strength of his report a hearing was ordered before the local land office of the district, the result of which was a dismissal of the application; for it was not then made to appear, as a present fact, that the ground was distinctively valuable for mining purposes, or that the applicant had made the improvements required by statute. This ruling was affirmed by the commissioner of the land office, and in turn by the secretary of the interior. Twelve days after the latter's decision, the grantors of defendant company entered upon the ground within the boundaries of the placer location, and thereafter located thereon the lode claims in question. The special defenses sought to be interposed were substantially: First, that plaintiff was not entitled to recover, because, upon the previous application for a patent of the Searl placer, there was a decision of the land department that the ground included within its boundaries was not placer ground, and the attempted location was for that reason void, and such decision was res adjudicata of the present controversy; second, assuming the existence of a prior valid placer location, nevertheless defendant, prior to the time patent was asked, went upon the placer surface area, and made locations of lode claims, which were then and theretofore known to exist, and, therefore, in law, the same were a part of the unappropriated public domain, and subject to location as lode claims. There was a replication by plaintiffs, denying the new and special matters of defense, and upon the issues thus joined, in a trial to the court without a jury, the findings were that the Searl placer was duly located as required by law in the year 1877, and thereafter the annual labor had been performed as the statute provides, and that defendant's grantors had discovered the lode claims within the boundaries, and subsequent to the location, of the Searl placer. Based upon these findings of fact, the conclusion of law was drawn that a prior location of a placer carries with it the exclusive right of possession of the surface included within the exterior boundaries, and a prospector might not enter thereupon and prospect for, or discover, a lode claim before application for the placer patent is made, unless by abandonment the placer claimant has lost his rights; and, there being no evidence of such loss, it was accordingly held that the acts of defendant in entering upon the valid subsisting placer location did not initiate any right whatever. Judgment was therefore entered in favor of the owner of the placer location, and to reverse it this writ of error is prosecuted.

1. It is insisted by plaintiff in error that the land department, with which is intrusted the determination of such questions, has declared this placer location void, because not on placer ground, and that such determination is decisive of the present controversy. It is unquestionably the law that findings of fact by the land department as to matters within its jurisdiction are conclusive upon the courts whenever a collateral attack is made upon them. They may, in a proper proceeding, be impeached for fraud or mistake, but not in actions like the present. This rule, however, has no application to the facts in this record. The application for a patent to the placer was rejected, but there was no decision that the ground in question was not placer ground, but merely that, as a then present fact, there was not such a showing by the applicant as entitled him to a patent. Amended applications for a patent of a mining claim are permissible under the practice in the land department. There was no attempt finally or definitely to determine that the ground was not placer ground, or that the location was void; and to that effect are its own decisions, as will be seen by reference to the official reports. 7 Copp, Landowner, 36; In re Searl Placer, 11 Land Dec. Dep. Int. 441; In re Clipper Min. Co., 22 Land Dec. Dep. Int. 527. In the last case, the secretary of the interior, in speaking of the contention made in this very case, says: 'The judgment of the department in the Searl Placer Case went only to the extent of rejecting the application for patent. The department did not assume to declare the location of the placer void, as contended by counsel, nor did the judgment affect the possessory rights of the contestant to it.' See, also, Mining Co. v. Searl, 29 Land Dec. Dep. Int. 137. Indeed, the question as to the character of the land sought to be appropriated by claimants under the public land laws is reserved,--unless under the law referred to some court,--and may be passed upon by the department until patent issues. Barden v. Railroad Co., 154 U.S. 288, 14 S.Ct. 1030, 38 L.Ed. 992. This court in Beals v. Cone, 27 Colo. 473, 62 P. 948, held that a decision of the land department like the one in question is equivalent to nothing more than a judgment as of nonsuit, and not conclusive upon the department itself, or upon the parties. An additional reason why the plea of res adjudicata cannot be sustained is that in the former proceeding the parties are not the same as those in the present action.

2. The principal question involved is much more important and difficult of solution. In discussing this feature of the case, it must be considered as established that the Searl placer was an existing valid location at the time of the attempted location of the lode claims. We make this statement, as counsel for plaintiff in error themselves admit that such issue was present in the case, and was determined by the trial court upon conflicting evidence, and, as bearing upon this point, they make no question but that the same was rightly determined. The question, therefore, is presented whether, and, if so, in what circumstances, one may, before application for a patent of a prior valid placer location is made, go upon the same for the purpose of prospecting the ground, and thereafter make a location of a lode claim based on a discovery thereafter and thus made of a vein or lode therein. In Aurora Lode v. Bulger Hill & Nugget Gulch Placer 23 Land Dec. Dep. Int. 95, it was held by the secretary of the interior that the discovery and location of a placer mining claim establishes in the owner the right to the possession of the superficial area within its boundaries for all purposes connected with, and incident to, the use and operation of the same as a placer mining claim, but that such location does not operate to give the right of possession to known veins or lodes within its limits, or preclude the right of discovery and location thereof by others. It was also held that a judicial award of the right of possession to an adverse placer claimant, as against a lode applicant, does not preclude subsequent departmental inquiry upon the allegation of the lode claimant that the placer claim embraced known lodes or veins, where it appears that such question was not at issue before the court for determination by its judgment. This case was referred to with approval by this court in Mt. Rosa Mining, Milling & Land Co. v. Palmer, 26 Colo. 56, 56 P. 176, 50 L.R.A. 289, 77 Am.St.Rep. 245. In the latter case the facts were that lode claims were known to exist, and were also duly located within the limits of a previously located placer claim before patent of the latter was applied for. A patent for the placer having been issued in such circumstances, it was held that, inasmuch as the applicant did not at the time mention the lode claims, or claim them by virtue of lode locations, they were excluded from the grant of his patent; and, as...