Gillis v. Downey

• Decision Date: 28 February 1898
• Docket Number: 979.
• Citation: 85 F. 483
• Parties: GILLIS v. DOWNEY.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 483

GILLIS v. DOWNEY.

No. 979.

United States Court of Appeals, Eighth Circuit.

February 28, 1898

Nellis E. Corthell, for appellant.

Stephen W. Downey, for appellee.

Before SANBORN and THAYER, Circuit Judges, and PHILIPS, District judge.

PHILIPS District Judge.

The appellant (complainant below) instituted suit in the United States circuit court for the district of Wyoming to quiet the title and determine the right of possession to certain lands containing placer mines. The complainant is a citizen of Illinois, and the defendant a citizen of Wyoming. The complainant at the institution of the suit was in the actual possession of the real estate. The bill, in substance recites that the lands in question are mineral lands, and were located as such in 1896 by the grantors of the complainant, and that the locations were made under and conformably to the acts of congress relating to the acquisition by location of such lands; that the grantors of complainant, and the complainant since he acquired by deeds of conveyance the rights and interest of said locators, have complied with all the requirements of the statute and local rules of miners in said state relating to discovery location, marking, recording, working, and possession of placer mining claims. The bill alleges that the defendant is asserting an estate and interest in said lands under a precedent location, made by him, under the mining laws, and his grantors, in 1890, and that in 1891 the defendant filed his application in the land office for a patent to said lands. The bill then alleges that the claim of the defendant is ineffectual, because it includes nonmineral lands; because the defendant had not discovered mineral deposits, and failed to mark his locations upon the ground, as also to perform the annual work required by the statute in each of the years from 1891 to 1896, and failed to comply with the laws and local regulations respecting possessory titles to such lands, with the further averment that about January 1, 1892, the defendant abandoned his claim and any right to the possession of the lands. The bill further avers that on February 3 1897, the complainant filed in the proper land office his protest and notice of adverse claim to the application for patent, which protest was pending therein at the time of the institution of this suit; that the purchase price for said land has not been paid nor tendered, and no patent had issued therefor. The prayer of the bill is that the defendant be required to set out his claim, that he be enjoined from asserting any adverse claim against complainant, that the complainant's title be quieted and established, and that he be adjudged entitled to the possession and peaceable enjoyment of the lands. To this bill the defendant appeared and filed a double plea in the nature of a demurrer and plea to the jurisdiction, raising the questions that the matters complained of are not cognizable in a court of equity; that the bill does not contain any equity entitling the complainant to relief; and, further, that it appears from the bill that the matter in controversy between the complainant and the defendant is pending in the land-office department, which has full jurisdiction over the subject-matter, and precludes the jurisdiction of the United States court. The circuit court sustained the demurrer and the plea, and dismissed the bill. To reverse this decree the complainant prosecutes this appeal.

We are not advised by the record on what particular ground the court below based its decision. The chief reliance of counsel for defendant for upholding the decree is that the mere possessory title to the land, as disclosed by the bill, is not sufficient to support a suit to quiet the title. The case of Frost v. Spitley, 121 U.S. 552, 7 Sup.Ct. 1129, is mainly relied upon to support this contention, in which it was, in effect, held that a bill in equity to quiet title cannot be sustained, either under general equity jurisprudence or under the statute of Nebraska, by one having an equitable title only. In that case the interest of the complainant was obtained under an execution, which was a mere equitable interest, the legal title being outstanding, and the purchase money not having been paid. All the purchaser acquired under the execution sale was the interest of the defendant in execution, and a right to the legal title on payment of the money. It was of such condition that the court said that:

'Under the jurisdiction and practice in equity, independently of statute, the object of the bill to remove a cloud upon the title and to quiet the possession of real estate is to protect the owner of the legal title from being disturbed in his possession, or harassed by suits in regard to that title; and the bill cannot be maintained without clear proof of both possession and the legal title. * * * A person out of possession cannot maintain such a bill, whether his title is legal or equitable, for, if his title is legal, his remedy at law by action in ejectment is plain, adequate, and complete, and, if his title is equitable, he must acquire the legal title, and then bring ejectment.'

But the court further observed:

'It is possible that one who holds land under a grant from the United States, who has done everything in his power to entitle him to a patent (which he cannot compel the United States to issue to him), and is deemed the legal owner so far as to render the land taxable to him by the state in which it lies, may be considered as having sufficient title to sustain a bill in equity to quiet his right and possession.'

The statute of Nebraska then in force authorized an action to be brought 'by any person or persons, whether in the actual possession or not, claiming title to real estate against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest and quieting the title to said real estate. ' Gen. St. Neb. 1873, p. 882. The court held that the term 'the title,' as used in this statute, more than that he is in possession, or that he has the title to the premises. He must claim, and, of consequence, prove, 'title to the real estate.'

As applied to ordinary claims to real estate in nonmining states or territories like the state of Nebraska, the rule is general that to entitle the claimant to maintain an action to quiet title he must be the owner of the title to the land. But in respect to claims to mining lands in our Western states and territories, beginning with the discoveries of the precious metals in California in 1848, followed up with subsequent explorations and discoveries, a system of mining customs, usages, and rights has developed, taking the form and sanction of prescriptive laws of universal recognition, which national and state legislatures later crystallized into written statutes. Mr. Justice Field, by reason of his early and long connection with the origin and growth of this unwritten law of the Pacific slope, both on the state and federal bench, has been recognized as high authority touching this branch of American jurisprudence. In Jennison v. Kirk, 98 U.S. 453, speaking of the necessity of rules and customs constituting the very foundation of proprietary rights in mining property, he said that:

'A series of wise judicial decisions had molded these regulations and customs into a comprehensive system of common law, embracing not only mining law, properly speaking, but also regulating the use of water for mining purposes. The miner's law was part of the miner's nature. He had made it, and he trusted it and obeyed it. He had given the honest toil of his life to the discovery of wealth, which, when found, was protected by no higher law than that enacted by himself under the implied sanction of a just and generous government.'

Again, this learned judge said:

'In every district which they occupied they framed certain rules for their government, by which the extent of ground they could severally hold for mining was designated, their possessory right to such ground secured and enforced, and contests between them either avoided or determined. These rules bore a marked similarity, varying in the several districts only according to the extent and character of the mines; distinct provisions being made for different kinds of mining, such as placer mining, quartz mining, and mining in drifts or tunnels. They all recognized discovery, followed by appropriation, as the foundation of the possessor's title, and development by working as the condition of its retention. And they were so framed as to secure to all comers, within practicable limits, absolute equality of right and privilege in working the mines. Nothing but such equality would have been tolerated by the miners, who were emphatically the lawmakers, as respects mining upon the public lands in the state. The first appropriator was everywhere held to have, within certain well-defined limits a better right than others to the claims taken up; and in all controversies except as against the government he was...