Conkling Mining Co. v. Silver King Coalition Mines Co.

• Decision Date: 12 February 1916
• Docket Number: 3977.
• Citation: 230 F. 553
• Parties: CONKLING MINING CO. v. SILVER KING COALITION MINES CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

230 F. 553

CONKLING MINING CO. v. SILVER KING COALITION MINES CO. ^[1]

No. 3977.

United States Court of Appeals, Eighth Circuit.

February 12, 1916

This is a suit to quiet the title to an undivided three-fourths of the Conkling mining claim, and to recover of the defendant three-fourths of the value of the ore which it has removed from the Elephant stope beneath the surface of the Conkling claim. The parties to the suit admit that the plaintiff is the owner of the undivided three-fourths of that claim under a patent issued to its predecessor in interest on February 3 1902, whereby the United States conveyed that claim in the usual way, 'bounded, described and platted as follows with magnetic variation seventeen degrees and twenty minutes east: 'Beginning at corner No. 1 a pine post four inches square marked 'U.S. 689 P. 1,' thence first course, north twenty-one degrees and nine minutes west three hundred feet to discovery point, six hundred feet to corner No. 2, a pine post four inches square marked 'U.S. 689 P. 2,' being also corner No. 4 of lot No. 191, the Lincoln lode claim, and corner No. 2 of lot No. 580, the Pirate King lode claim, from which U.S. mineral monument No. 4 bears north thirty-two degrees and fifty-two minutes west nine hundred and thirty-nine and three-tenths feet distant, and a pine tree four inches in diameter marked 'U.S. 689 P. 2 B.T.' bears north thirteen degrees west twenty-eight feet distant thence second course, south sixty degrees and forty-five minutes west one thousand five hundred feet to corner No. 3; thence third course, south twenty-one degrees and nine minutes east six hundred feet to corner No. 4; thence fourth course, north sixty degrees and forty-five minutes east one thousand five hundred feet to corner No. 1, the place of beginning--said lot No. 689 extending one thousand five hundred feet in length along said Conkling vein or lode, and containing twenty acres and forty-five hundredths of an acre of land more or less.'

The defenses were two: First, that the ore was taken from the westerly 135.5 feet of the claim described in the patent and that this part of the claim was not conveyed by the patent, because the posts set by the government surveyor to mark the westerly corners of the claim were only 1,364.5 feet distant respectively from the easterly line of the claim; and, second, because the ore taken from beneath the surface of the Conkling claim was a part of the Crescent fissure vein which had its apex in defendant's Constitution, Cumberland and Monroe Doctrine claims, crossed the side lines of those claims in its course, and, on its dip, extended through the vertical planes passing through their end lines and beneath the surface of the Conkling claim to the Elephant stope, that the end lines of defendant's claims became their side lines, that defendant's claims were prior in time and superior in right to those of the owners of the Conkling claim, and that, therefore, the defendant was the owner of the ore taken from the Elephant stope. Upon final hearing the court below sustained each of these defenses and the plaintiff appealed.

E. B. Critchlow, of Salt Lake City, Utah (Pierce, Critchlow & Barrette, of Salt Lake City, Utah, William D. McHugh, of Omaha, Neb., and William H. King and William J. Barrette, both of Salt Lake City, Utah, on the briefs), for appellant.

William H. Dickson, of Salt Lake City, Utah (A. C. Ellis, Jr., Russell G. Schulder, O. W. Powers, and Thomas Marioneaux, all of Salt Lake City, Utah, on the briefs), for appellee.

Before SANBORN and SMITH, Circuit Judges, and POPE, District Judge.

PER CURIAM.

It is a general, but not a universal, rule that monuments mentioned in a description of land prevail over courses and distances and it was upon this rule that the defendant founded its first defense. The evidence produced to sustain it consisted of the field notes of the survey of the claim which were made on November 1, 1889, by the United States surveyor, which recited that a pine post 4 feet by 4 inches by 4 inches was set at its northwesterly corner and marked 'U.S. 689 P. 3,' and another at the southwesterly corner of the claim marked 'U.S. 689 P. 4,' that these posts were 1,500 feet distant from the easterly line of the claim, the location of which is admitted, and that the area of the claim was 20.45 acres; and (2) the testimony of witnesses that they found these stakes years after the survey 1,364.5 feet distant from the easterly line of the claim. In addition to this testimony a large number of plats and field notes of other claims in the vicinity of the Conkling claim, and some other evidence, was introduced, but the testimony that these stakes were found by two or three surveyors, sometimes lying on the ground and sometimes standing in a mound of stones about 1,364.5 feet distant from the easterly line of the claim, is the most substantial and persuasive evidence that they were originally placed by the surveyor at about that distance from the easterly line.

This testimony and all the other evidence upon this subject has been carefully read more than once and deliberately considered in view of the established rule that the finding of the chancellor should not be disturbed, unless it clearly appears that he has made a serious mistake of fact or has fallen into some plain error of law. The testimony presents two questions: First, may the plain and unambiguous grant by a patent of the United States of a tract of land be revoked or avoided in whole or in part by a collateral attack by means of evidence dehors the patent years after the grant; and, second, if it may be, does the evidence in this case clearly prove that it was not the intention of the parties to the patent that the United States should grant thereby a tract of land 1,500 feet in length, and that it should grant a tract of land only 1,364.5 feet in length, for, after all, the intention of the parties, if it can be lawfully and surely ascertained, must prevail. The court below was of the opinion that the first question did not arise in this case because the patent recited that whereas there had been deposited in the General Land Office 'the plat and field notes of survey * * * accompanied by other evidence whereby it appears that the Boss Mining Company did on the twenty-ninth day of December, A.D. 1890, duly enter and pay for that certain mining claim or premises known as the Conkling lode mining claim designated by the surveyor as lot No. 689 and bounded, described and platted as follows (as set forth in the statement preceding this opinion): Now, know ye, that there is hereby granted by the United States unto the said Boss Mining Company, and to its successors and assigns, the said mining premises hereinbefore described, ' and that portion of the Conkling lode and all other veins, lodes and ledges the tops or apexes of which lie inside of the surface boundary lines of said granted premises in said lot No. 689 extended downward vertically: ' * * * Provided that the right of possession to such outside parts of said veins, lodes or ledges shall be confined to such portions thereof as lie between the vertical planes drawn downward through the end lines of said lot No. 689;' and the opinion of the court below was that this reference in the patent to lot No. 689 imported into that patent and made a part of the description in the patent the field notes and the calls therein for the posts the field notes described as located at the westerly corners of the claim. In support of this position Rutherford v. Tracy, 48 Mo. 325, 8 Am.Rep. 104, Lodge's Lessee v. Lee, 6 Cranch, 237, 3 L.Ed. 210, and Keith v. Reynolds, 3 Greenl. (Me.) 393, which hold that where a specific island, town lot, or farm is granted, followed by boundaries which include only a part of it, the entire island, lot, or farm will pass, were cited. Under these decisions, however, the grant of this lot No. 689 according to the plat, followed by a boundary of a part of the lot by courses and distances indicated by the field notes, would convey the entire lot according to the plat which showed the lot to be 1,500 feet in length, although the courses and distances included only a part of it, and that ruling would defeat the defense in hand.

When however, the origin, nature and effect of a patent and the plain terms of the description in the one in hand are considered it becomes clear that the theory that the reference to the field notes and to the surveyor's number of the lot made the field notes and the calls therein a part of the description, is untenable. A patent of land within the jurisdiction of the Land Department of the United States, and this land was within its jurisdiction, is the judgment of that tribunal upon the evidence before it that the patentee is entitled to the land therein described and the conveyance of the legal title to the land to the patentee in execution of the judgment. The Land Department is a special tribunal vested with judicial power to hear and determine the claims of all parties to the public lands which it is authorized to dispose of, and its judgment, evidenced by its patent, is conclusive of the right of the claimant and of the United States to such land and of every issue which it was necessary for the land Department to decide in determining those rights. The validity, the extent and the boundaries of the claim in this case, and in every case, are unavoidable issues which it must adjudge in sustaining any part or all of the claim in hand, or any other claim of this character. Its adjudications of matters within its jurisdiction are like those of other judicial tribunals, impervious to collateral attack. They may be avoided only by a direct suit for that purpose on the ground of fraud or error...