Cowell v. Lammers

• Citation: 21 F. 200
• Parties: COWELL v. LAMMERS and others.
• Decision Date: 11 August 1884
• Court: D. California

21 F. 200

COWELL v. LAMMERS and others.

United States Circuit Court, D. California.

August 11, 1884

D Johnson and W. H. Beatty, for complainant.

George G. Blanchard, for defendants.

SAWYER J.

This is a suit in equity to enjoin the defendants from committing a trespass in the nature of waste, in working a gold mine on the N.E. 1/4 of section 17, township 9 N., range 9 E., Mt. Diablo base and meridian. The quarter section is a part of a section designated by an odd number within the limits of the grant made by congress to the Central Pacific Railroad Company, to aid in the construction of said company's road, by the act of July 1, 1862, (12 St. 489,) as amended by the act of July 2, 1864, (13 St. 356.) The road having been completed in accordance with the provisions of said acts of congress, a patent in the usual form was issued to the Central Pacific Railroad Company on June 27, 1867. The granting clause of the patent is as follows:

'Now know ye, that the United States of America, in consideration of the premises, and pursuant to the said acts of congress have given and granted, and by these presents do give and grant, unto the said Central Pacific Railroad Company of California, and to its assigns, the tracts of land situated as aforesaid and described in the foregoing, yet excluding and excepting from the transfer, by these presents, 'all mineral lands,' should any such be found to exist in the tracts described in the foregoing; but this exception and exclusion, according to the terms of the statute, shall not be construed to include coal and iron land.

'To have and to hold the said tracts, with the appurtenances unto the said Central Pacific Railroad Company of California and to its assigns, forever, with the exclusion and exception as aforesaid.'

On March 13, 1873, the Central Pacific Railroad Company duly conveyed the said quarter section, with other lands, to Daniel McCarty.

McCarty went into the actual possession and occupation of the land, claiming title under the said United States patent and subsequent conveyance to himself. He fenced the lands embracing said quarter of section 17; erected a house, barn, and other out-buildings and improvements upon the said quarter section; cultivated portions of it in grain and other products used in his family, including his employes; burned lime on it for sale; and used the rest of it for hay and pasturage, having a large number of cattle, sheep, and hogs upon the land. He was thus in the actual possession and occupation of the land in question, having it under fence and in actual use from the time of his purchase, in 1873, till November 24, 1877, on which day he duly conveyed to the complainant, Cowell, who, upon receiving such conveyance, went into the actual possession and occupation of the said land, which, by and through his employes, he has ever since possessed, occupied, and used for purposes similar to those to which they were applied by his grantor, McCarty.

The defendant, by the permission of complainant, had erected a cabin on a portion of the lands of complainant other than that part upon which the trespass is alleged to have been committed, and outside said quarter of section 17, in which he had lived some years by complainant's permission, though without any lease; from time to time, as his services were required, working for complainant. In August, 1881, defendant, without the consent and against the will of complainant, entered upon the particular portion of the land now in question, assuming it to be public mineral land, prospected for a mine, and located a mining claim in pursuance, as he claims, of the rules and regulations of miners of the district, and of the Revised Statutes of the United States, upon the subject, upon what he now claims to be a gold-bearing quartz lode. He insists that a valuable gold mine has been found to exist at the point of the location claimed; that the act of congress did not grant 'mineral lands' to the Central Pacific Railroad Company; that the patent, although covering the land in terms, excepts from its operation any lands that may be found to be mineral; that the lode in question did not pass to the railroad company either by the act of congress or the patent; and that it was, at the date of his location, public 'mineral land,' open to exploration and location by him. There is a good deal of testimony tending to show that there was a placer mine on the quarter section which had been exhausted and abandoned before the railroad grant attached; also that there had been some prospecting for quartz, and some found, but that it did not appear to be of sufficient value to pay for working, and that all work of the kind had also been abandoned before the rights of the railroad company attached; and that nothing had been afterwards done, except by the grantees in the patent, and that of very little consequence, to find, work, or develop a mine, till the entry and acts of defendant in 1881, complained of.

An application to the land-office to purchase the mine claimed to have been located by defendant on the quarter section in question, made subsequently to the location of defendant, was rejected, on the ground that the land had already been regularly patented to the Central Pacific Railroad Company, at a time when there were no known valuable mines upon them, and that, notwithstanding the clause in the patent excluding mineral lands, the exclusion did not embrace mines that might be subsequently discovered and developed, and that, in issuing the patent to the railroad company, the jurisdiction and powers of the land-office had been exhausted. The commissioner of the general land-office, in affirming the decision of the local office in rejecting the application, says:

'Applicant claims that said Marble Valley quartz mine was discovered in July, 1881. He further claims, that, having complied with the provisions of section 2325, United States Revised Statutes, his application should have been received. Applicant's counsel argue that mineral lands did not pass to the railroad company by said patent issued under the acts of July 1, 1862, and July 2, 1864, and in support thereof refer to numerous decisions of courts and of this department. The only question arising here is, were these lands, at date of the patent to the railroad company, mineral, so that they should have been excluded from such patent? If so, then the patenting was an error of this office, or fraud was practiced by the railroad company. If not, then the title to the lands vested at date of the patent in the railroad company, and this office has no further jurisdiction in the premises. It is, therefore, plain that the decisions cited by the applicant's counsel do not apply to the case in hand. Said township was surveyed in 1866, and section lines were run. This was at a date when subdivisional lines of townships were not run in the survey of mineral lands. Provision for extending the public surveys over all the mineral lands was not made until the act of July 9, 1870. The fact of the survey of said section 17 in 1866, and that the plat of the survey of the township or the field-notes fail to show section 17 to contain 'valuable mineral deposits,' make a prima facie case in favor of the agricultural character of the section. It is not alleged, nor does it appear anywhere in the case, that any valuable mineral was discovered on section seventeen prior to the issuing of the patent.

'Under the grant to the state of California of sections sixteen and thirty-six for school purposes, the title vests in the state upon survey, if subsequent to the act, if the lands were not known to be mineral at that date. Sick. Min. Dec. 246. ' All mineral deposits discovered upon lands after United States patent therefor has issued to a party claiming under the laws regulating the disposal of agricultural lands, pass with the patent, and this office has no further jurisdiction in the premises.' Copp, U.S. Min. Lands, 121. This is an established principle recognized by this office, and applying to railroad companies claiming agricultural lands, as well as to any other party claiming under the laws regulating the disposal of agricultural lands. The excepting clause in the patent to the railroad company, excluding all mineral lands, other than coal and iron lands, from the transfer, is construed to mean lands known to contain valuable minerals prior to the issuing of the patent. Subsequent discoveries would not affect the title of the company to the lands; it would be entitled to the lands thus discovered. The patent in this case appears to have been regularly issued, and no error in this office in issuing the same, or fraud on the part of the railroad company, is alleged or claimed. * * * The title to the lands applied for is vested in the railroad company, under its said patent dated June 27, 1867, and the land is not subject to further disposal by the United States.' The complainant insists that, in view of the indisputable facts appearing in the case, the defendant is not in a position which entitles him, in this proceeding, to collaterally assail the validity of his title under the patent for two reasons; and, if I rightly comprehend the decisions of the supreme court upon similar questions, he is clearly right in this position. In Atherton v. Fowler the supreme court distinctly held that no right of pre-emption can be established by a settlement and improvement on a tract of land conceded to be public, where the pre-emption claimant intruded upon the actual possession of another, who, having no other valid title than possession, had already settled upon, inclosed, and improved the tract; that such an intrusion is but a naked, unlawful trespass, and cannot initiate a right

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