Erwin v. Perego, 1,107.

• Decision Date: 06 March 1899
• Docket Number: 1,107.
• Citation: 93 F. 608
• Parties: ERWIN v. PEREGO et al.
• Court: U.S. Court of Appeals — Eighth Circuit

93 F. 608

ERWIN v. PEREGO et al.

No. 1,107.

United States Court of Appeals, Eighth Circuit.

March 6, 1899

Edward S. Ferry, Arthur Brown, and Henry P. Henderson, for appellant.

George Westervelt and J. T. Richards, for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

Sections 6 and 7 of the act of congress of May 10, 1872, now sections 2325 and 2326 of the Revised Statutes, provide that any one who has located a mining claim under that act may file an application for a patent to it, together with a plat and certain field notes, notices, and affidavits; that for 60 days the register of the land office with whom this application is filed shall publish and post a notice that it had been made; that, if no adverse claim is filed at the expiration of the 60 days, it shall be assumed that the applicant is entitled to his patent and that no adverse claim exists; that, if an adverse claim is properly filed proceedings in the land office shall be stayed until the trial and decision by a court of competent jurisdiction of the question who is entitled to the right of possession of the claim; and that the patent shall issue to the party who is adjudged by the court to have that right. There was a conflict between the lode mining claim Kate F., which was owned by the appellant, David D. Erwin, and the lode mining claim Star, which was owned by the appellees, William Perego and Michael F. Clark. Erwin applied for a patent to the Kate F. under the act of congress. Perego and Clark, as owners of the Star, which included the entire area covered by the Kate F., filed an adverse claim, and then brought this action in the district court in the county of Summit, in the state of Utah, to determine who was entitled to the possession of the area in conflict between the two claims. The case was removed to the United States circuit court, and that court heard it and rendered a decree in favor of the appellees. 85 F. 904. The appellant asks a reversal of this decree on three grounds: (1) Because the court below had no jurisdiction of the suit; (2) because the appellees' petition was insufficient to sustain the decree; and (3) because Perego who located the Star claim, did not make his discovery until after he had marked the boundaries of his claim. These objections to the decree will be considered in their order.

1. The constitution of the state of Utah provides that 'all criminal and civil business arising in any county must be tried in such county unless a change of venue be taken in such cases as may be provided by law. ' Const. Utah, art 8, Sec. 5. The supreme court of that state has held that, under this clause of its constitution, the courts of that state have no jurisdiction to try any action brought in any other county than that in which the cause of action arose. Konold v. Railway Co., 51 P. 256. The register of the land office before whom the application for the patent to the Kate F. was filed in this case held his office in Salt Lake county, in the state of Utah, while the land in controversy is situated in Summit county, in that state. The appellant insists that the court below had no jurisdiction of this suit, because the cause of action upon which it is founded arose in Salt Lake county, where the application for the patent was filed, while the action was brought in Summit county, where the land was situated. But the filing of the application for the patent did not create the cause of action. Its only effect was to limit the time within which, under the act of congress, the action could be advantageously brought. The subject of the action was the right to the possession of the land. The cause of action arose-- it was created-- when, in 1895, the appellant entered upon the appellees' claim, disturbed their possession, made a discovery of ore, and located the Kate F. upon it. From that time forward the appellees' cause of action existed, and the acts which had given rise to it were done in Summit county and upon the land in controversy. Actions of ejectment, trespass, forcible entry and unlawful detainer, and, indeed, all actions in which the real issue is which party is, or was at a certain time, entitled to the possession of the land, are local in their nature, and necessarily arise where the land is situated. This action was properly brought in Summit county, where the real estate, the right to the possession of which was in controversy, was located. Mosby v. Gisborn (Utah) 54 P. 121, 126.

2. Another objection to the decree is that the petition of the appellees was insufficient to sustain it, because it alleges that Perego was the owner, or Perego and Clark were the owners, of the Star claim from and after September 5, 1888, while the proof was that their title to it did not vest in Perego, who subsequently conveyed an interest to Clark, until some time in the autumn of 1890. This objection was not made to the evidence in the court below, and it is too trivial and frivolous to merit consideration. An averment that one was the owner of land from an earlier date to the time of the commencement of the action is certainly ample to warrant proof of his ownership at any time within that period.

3. It is contended that the decree which sustains the location of the Star mining claim made by Perego in 1889 is erroneous because he made no discovery of a mineral-bearing lode within his claim until a year after he had located and marked its boundaries. It is insisted that there can be no valid location of a mining claim unless the locator discovers the lode or ledge within the limits of his claim before he marks its boundaries. Perego marked the boundaries of the Star claim, which is sustained by this decree, in 1889; but he made his discovery of a mineral-bearing lode within it in the fall of 1890. It was not, however, until October, 1895, that the appellant made the discovery and marked the boundaries of the Kate F., upon which he relies to maintain his claim to a portion of the land covered by the Star. It is not claimed that either of these locators failed to comply with any of the requirements of the acts of congress, or of the statutes of the state of Utah, or of any of the rules and customs of miners, unless the fact that Perego did not make his discovery until after he located his claim constituted such a failure; and the entire case turns upon that question. If the location which Perego made in 1889 became valid at any time before October 5, 1895, when the appellant made his discovery, that discovery was not made upon unappropriated public land, and was void; and if Perego's location was void in 1895, the land was unappropriated, and Erwin's location was valid. The acts of congress prescribe two, and only two,...