Davis v. Wiebbold

Decision Date06 April 1891
Citation11 S.Ct. 628,35 L.Ed. 238,139 U.S. 507
PartiesDAVIS v. WIEBBOLD
CourtU.S. Supreme Court

This is an action for the possession of a parcel of mining land in Silver Bow county, formerly Deer Lodge county, of the territory, now state, of Montana. It is designated in the complaint as a quartz lode, known as the 'Gold Hill Lode Mining Claim,' in the Summit Valley mining district in that county, and is described by metes and bounds. It is alleged to contain seven acres and a fraction of an acre of land, and to embrace 1,460 linear feet of the Gold Hill lode. The complaint avers that in January, 1881, the plaintiff was the owner and entitled to the possession of the property; that afterwards, in June, 1881, while he was still owner and entitled to its possession, the defendants wrongfully and unlawfully entered thereon and withheld the same from him, to his damage of $5,000; and that its rents and profits during that time amount to $10,000. The plaintiff, therefore, prays to be adjudged its owner, and to be entitled to its possession, and for his damages in the sum of $15,000. One of the defendants, Andrew J. Davis, the appellant here, appeared to the action, and filed a separate answer to the complaint, denying the ownership by the plaintiff, or his right to the possession of portions of the quartz lode mining claim described in the complaint, which portions are designated as certain lots in block 13, in Butte City, Silver Bow county, according to the official survey of the town-site in the recorder's office of the county; and as to the residue of the premises, described in the complaint, disclaiming any right or interest therein. He further denied that he ever entered upon the lots described without right or title and ejected the plaintiff therefrom, and also the alleged value of the rents and profits since such supposed entry. Davis, as a separate defense, also set up, in bar of the action, the statute of limitations of Montana, and that he and those under whom he derived his interest had been in possession of the lots described more than five years, under a claim of title founded upon a written conveyance thereof, exclusive of any other right. It is not disclosed by the record that any other of the defendants appeared in the action. To the answer filed the plaintiff replied, traversing the averments of the separate defense. On the trial which followed the plaintiff relied upon the patent of the United States for the mining claim described in the complaint, issued to him, bearing date January 15, 1880. It recites that in pursuance of the provisions of the Revised Statutes of the United States (chapter 6, tit. 32) there had been deposited in the general land-office of the United States the plat and field-notes of survey of the claim of Heinrich C. Wiebbold (the plaintiff herein) upon the Gold Hill lode, accompaned by the certificate of the register of the land-office at Helena, in the territory of Montana, whereby it appeared that in pursuance of the Revised Statutes Wiebbold did, on the 19th of September, 1878, enter and pay for said mining claim or premises, being mineral entry No. 438, in the series of said office, designated by the surveyor general as lot No. 65, in the district of lands subject to sale at Helena, containing seven acres and sixty-hundredths of an acre of land, more or less, and which is fully described by metes and bounds.

The following is the granting clause of the patent, with the conditions and stipulations annexed: 'Now, know ye, that the United States of America, in consideration of the premises and in conformity with the said Revised Statutes of the United States, have given and granted, and by these presents do give and grant, unto the said Heinrich C. Wiebbold, and to his heirs and assigns, the said mining premises hereinbefore described as lot No. 65, embracing a portion of township three (3) north of range eight (8) west of the principal meridian, with the exclusive right of possession and enjoyment of all the land included within the exterior lines of said survey not herein expressly excepted from these presents and of fourteen hundred and sixty (1,460) linear feet in the said Gold Hill vein, lode, ledge, or deposit, for the length hereinbefore described, throughout its entire depth, although it may enter the land adjoining, and also all other veins, lodes, ledges, or deposits throughout their entire depth, the tops or apexes of which lie inside the exterior lines of said survey at the surface, extended downward vertically, although such veins, lodes, ledges, or deposits in their downward course may so far depart from a perpendicular as to extend outside the vertical side lines of said survey: provided, that the right of possession hereby granted to such outside parts of said veins, lodes, ledges, or deposits shall be confined to such portions thereof as lie between vertical planes drawn downward through the end lines of said survey at the surface, so continued in their own direction that such vertical planes will intersect such exterior parts of said veins, lodes, ledges, or deposits; excepting and excluding, however, from these presents all town property rights upon the surface, and there are expressly excepted and excluded from the same all houses, buildings, structures, lots, blocks, streets, alleys, or other municipal improvements on the surface of the above-described premises not belonging to the grantee herein, and all rights necessary or proper to the occupation, possession, and enjoyment of the same: and provided further, that nothing in this conveyance shall authorize the grantee herein, his heirs or assigns, to enter upon the surface of a mining claim owned or possessed by another; to have and to hold said mining premises, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, unto said Heinrich C. Wiebbold, and to his heirs and assigns forever, subject, nevertheless, to the following conditions and stipulations: First. That the grant hereby made is restricted to the land hereinbefore described as lot No. 65, with fourteen hundred and sixty (1,460) linear feet of the Gold Hill, throughout its entire depth as aforesaid, together with all other veins, lodes, ledges, or deposits throughout their entire depth as aforesaid, the tops or apexes of which lie inside the exterior lines of said survey.

Second the surface, may be entered by the proprietor of any other vein, lode, ledge, or deposit, the top or apex of which lies outside the exterior limits of said survey, should the same in its downward course be found to penetrate, intersect, extend into, or underlie the premises hereby granted, for the purpose of extracting and removing the ore from such other vein, lode, ledge, or deposit. Third Th at the premises hereby conveyed shall be held subject to any vested and accrued waterrights for mining, agricultural, manufacturing, or other purposes, rights to ditches and reservoirs used in connection with such water-rights as may be recognized and acknowledged by the local laws, customs, and decisions of courts. Fourth. That in the absence of necessary legislation by congress the legislature of Montana may provide rules for working the mining claim or premises hereby granted, involving easements, drainage, and other necessary means to its complete development. In testimony whereof, I, Rutherford B. Hayes, president of the United States of America, have caused these letters to be made patent, and the seal of the general land-office to be hereto affixed. Given under my hand, at the city of Washington, the fifteenth day of January, in the year of our Lord one thousand eight hundred and eighty, independence of the United States the one hundred and fourth. By the President: R. B. HAYES. By WM. H. COOK, Secretary. S. W. CLARK, Recorder of Gen. Land-Office.'

To the introduction of this patent the defendant objected, on the ground that the exception contained in it excluded all town lots from the grant, and that it was necessary for the plaintiff to show that the property in controversy did not consist of lots thus excepted. But the court overruled the objection, and allowed the patent to be introduced; and to the ruling the defendant excepted.

The defendant, to maintain the issue on his part, introduced a patent of the United States, bearing date September 26, 1877, issued to Orville B. O'Bannon, probate judge of Deer Lodge county, Montana territory, in trust for the use and benefit of the occupants of the town-site of Butte in that county. It recites that the probate judge, by virtue of the act of congress of March 2, 1867, entitled 'An act for the relief of the inhabitants of cities and towns upon the public lands,' had deposited in the general land-office of the United States a certificate of the register of the land-office at Helena, Montana territory, whereby it appeared that full payment had been made by the probate judge in trust as aforesaid, according to the provisions of the act of congress of April 24, 1820, entitled 'An act making further, provisions for the sale of public lands,' for the tract of land constituting the town-site of Butte, embracing one hundred and eighty-three acres and a fraction of an acre, and of which a full description is given by metes and bounds. The following is its granting clause: 'Now, know ye, that the United States of America, in consideration of the premises and in conformity with the several acts of congress in such case made and provided, have given and granted, and by these presents do give and grant, unto the said Orville B. O'Bannon, probate judge as aforesaid, in trust as aforesaid, and to his successors, the said tract above described; to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, unto the said Orville B. O'Bannon, probate judge as aforesaid, in trust as aforesaid, and to his successors and...

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