GWILLIM V. DONNELLAN

• Court: United States Supreme Court
• Citation: 115 U. S. 45
• Decision Date: 04 May 1885

Gwillim v. Donnellan

Argued April 1, 1885

Decided May 4, 1885

115 U.S. 45

N ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF COLORADO

Syllabus

In proceedings under Rev.Stat. §§ 2325, 2326 to determine adverse claims to locations of mineral lands, it is incumbent upon the plaintiff to show a location which entitles him to possession against the United States as well as against the other claimant, and therefore when plaintiff at the trial admitted that that part of his claim wherein his discovery shaft was situated had been patented to a third person, the court rightly instructed the jury that he was not entitled to recover any part of the premises, and to find for defendant.

These were proceedings under Rev.Stat. §§ 2325-2326 to determine adverse claims to a mineral location. The facts are stated in the opinion of the Court.

Page 115 U. S. 46

MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.

This is a suit begun July 7, 1881, under Rev.Stat. § 2326 to determine the rights of adverse claimants to certain mining locations. Donnellan and Everett, the defendants in error here and also the defendants below, were the owners of the Mendota claim or location, and Gwillim, the plaintiff in error here, and the plaintiff below, the owner of the Cambrian. The two claims conflicted. The defendants applied, under Rev.Stat. § 2325 for a patent of the land covered by their location, and the plaintiff filed in due time and in proper form his adverse claim. To sustain this adverse claim the present suit is brought, which is in form an action to establish the right of the plaintiff to the premises in dispute and to the possession thereof as against the defendants on account of a "prior location thereof as a mining claim in the public domain of the United States."

The question in the case arises on this state of facts:

Upon the trial, the plaintiff gave evidence tending to show what Isaac Thomas, on the 16th of May, 1878, discovered in the public domain, and within the premises described in the complaint, a vein of rock in place, bearing gold and silver, and sunk a shaft to the depth of ten feet or more, to a well defined crevice, and located the premises under the name of the "Cambrian Lode," and performed all the acts required by law for a valid location. The plaintiff got his title from Thomas. In the answer of the defendants, they set up title under the Mendota claim, located, as they allege, November 19, 1878. The plaintiff, in presenting his case to the jury, stated in effect that after the location of the claim by Thomas and before his conveyance to the plaintiff, one Fallon instituted proceedings to obtain a patent from the United States for another claim, including that part of Thomas' claim wherein was situated the

Page 115 U. S. 47

discovery shaft sunk by him; that no adverse claim was interposed, and Fallon accordingly entered his claim and obtained a patent therefor; and, before any new workings or developments done or made by Thomas upon any part of his claim not included in this patent, the defendants entered therein and located the same as a mining claim in the public domain. Upon this statement, the court

"ruled that inasmuch as that part of the claim of said Thomas, wherein was situated his discovery shaft, had been patented to a third person, the plaintiff was not entitled to recover any part of the premises, and instructed the jury to find for the defendants."

This instruction is assigned for error.

Thomas made his location as the discoverer of a vein or lode within the lines of his claim. He made but one location, and that for fifteen hundred feet in length along the discovered vein. All his labor was done at the discovery shaft. There was no claim of a second discovery at any other place than where the shaft was sunk.

Section 2320 Rev.Stat. provides that

"A mining claim located after the 10th of May, 1872, . . . shall not exceed one thousand five hundred feet in length along the vein or lode, but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located."

§ 2322 gives

"the locators of all mining locations, . . . so long as they comply with the laws of the United States and with the state, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title . . . the exclusive right of possession and enjoyment of all the surface included within the lines of their locations and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface location."

The location is made on the surface, and the discovery must be of a vein or lode the top or apex of which is within the limits of the surface lines of such location. A patent for the land located conveys the legal title

Page 115 U. S. 48

to the surface, and that carries with it the right to follow a discovered vein, the apex of which is within the limits of the grant downwards, even though it may pass outside the vertical side lines of the location. The title to the vein depends on the right to the occupancy or the ownership of its apex within the limits of the right to the occupation of the surface. This right may be acquired by a valid location and continued maintenance of a mining claim, or by a patent from the United States for the land.

To keep up and maintain a valid location 0 worth of labor must be done, or improvements made, during each year until a patent has been issued therefor. § 2324.

By § 2325, it is provided that a patent may be obtained for land located or claimed for valuable deposits. To accomplish this, a locator, who has complied with all the statutory requirements on that subject, may file in the proper land office an...