Hand v. Cook

• Citation: 92 P. 3,29 Nev. 518
• Decision Date: 17 October 1907
• Docket Number: 1,700.
• Parties: HAND et al. v. COOK et al.
• Court: Supreme Court of Nevada

92 P. 3

29 Nev. 518

HAND et al. v. COOK et al.

No. 1,700.

Supreme Court of Nevada

October 17, 1907

Appeal from District Court, Lincoln County.

Action by Carlton H. Hand and others against John R. Cook and others, to recover possession of certain mining lands, and damages for ore extracted therefrom by defendants. From a judgment adverse to defendants, they appealed. Reversed, and new trial granted.

Talbot C.J., dissenting.

T. J Osborne and Thos. Marioneaux, for appellants.

F. R McNamee, for respondents.

NORCROSS J.

This is an action brought by the plaintiffs in the court below to recover possession of certain mining ground known as the "Triangle," "Last Shange" and "Bellevue" mining claims, situate in the Ely mining district, Lincoln county, Nev., and damages for ore extracted therefrom by defendants.

It is admitted by the defendants that the premises in controversy were on the 1st day of January, 1903, valid and subsisting mining claims, and the property of the plaintiffs and the defendant Lynch. It was admitted that plaintiffs failed to perform on the ground in controversy the annual labor required for the year 1903, and that on January 1, 1904, the defendant Cook, who was then what is commonly called a "deputy United States mineral surveyor," went upon the premises in controversy and located a claim 600 feet wide by 1,500 feet long, and called the same the "Yuba East," which embraced the whole of the said Triangle, Bellevue, and Last Shange mining claims. It was also conceded by the plaintiffs that in the making of the said location all acts were done and performed which were necessary under the law to effect a valid location of the ground in controversy, and that the said Yuba East claim was a valid location, and was the property of the defendant Cook, unless Cook was disqualified from making a valid location of the premises by virtue of the fact of his authority under the laws of the United States to survey mining claims, or unless he was disqualified from locating the premises by virtue of certain alleged contractual relations between him and the plaintiffs, growing out of a certain lease upon the premises, and certain alleged promises by the defendant Lloyd (claimed to be a copartner with Cook) to perform the assessment work for the plaintiffs for the year 1903. The questions as to the alleged disqualification of Cook to locate the ground by virtue of the lease, or by virtue of any contract by his alleged partner Lloyd to perform the assessment work for the plaintiffs were decided by the trial court against the contention of the plaintiffs. All the issues of fact and of law were decided for the defendants, except that the trial court concluded, as matter of law, that the location of the premises by the appellant John R. Cook was void, for the reason that at the time of making the location he was a person who then held a license under the government of the United States to survey mining claims in the state of Nevada. The only question, therefore, presented upon the appeal is the right of a deputy United States mineral surveyor to locate a mining claim while holding a commission from the surveyor general of the United States to survey mining claims. It is contended, and has been so held by certain rulings of the General Land Office, that such deputy United States mineral surveyor falls within the prohibition contained in section 452 of the Revised Statutes of the United States. It is therefore further contended that such a surveyor is disqualified from locating a mining claim, and that any attempted location by him is void.

The section in question reads as follows: "Sec. 452. The officers, clerks and employés in the General Land Office are prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public land; and any person who violates this section shall forthwith be removed from his office." It will be observed that the section in question imposes a penalty or forfeiture or both, and therefore under all the authorities must be strictly construed. The section quoted is one of the 16 sections of the Revised Statutes of the United States, comprising chapter 3, "The General Land Office," and which, in turn, is a part of title 11, "The Department of the Interior." The first section of the chapter, relating to the "General Land Office" (Rev. St. U.S. § 446), provides that there shall be in the Department of the Interior a Commissioner of the General Land Office, who shall be appointed by the President, etc. The next section (section 447) provides that there shall be an officer called the "Recorder of the General Land Office," to be appointed by the President, etc. The next section (section 448) provides that there shall be in the General Land Office a principal clerk of the public lands and a principal clerk on private land claims, to be appointed by the President, and that they shall perform such duties as may be assigned to them by the Commissioner of the General Land Office. The next section (section 449) provides that there shall be a principal clerk of the surveys, who shall be appointed by the President. He shall direct and superintend the making of the surveys, etc. The next section provides that the President shall appoint a secretary, whose duty it shall be to sign patents, etc. The next section (section 451) authorizes appointment of an assistant secretary. The act specifies the salary of each of such officers. Having provided for the appointment of the foregoing officers, the next section (the one upon which this case turns) prohibits the officers, clerk, and employés in the General Land Office from purchasing the public lands, under penalty of loss of employment. Section 2207 of the Revised Statutes of the United States, under title 32, "The Public Lands," c. 1, provides for the appointment by the President of a surveyor general for certain states and territories therein mentioned, of which Nevada is one. Section 2319, Rev. St. U.S. (chapter 6 of same title), provides: "All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States." Section 2334, Rev. St. U.S., contained in the last-mentioned chapter, provides: "The Surveyor General of the United States may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims. The expenses of the survey of vein or lode claims, and the survey and subdivision of placer claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Commissioner of the General Land Office shall also have power to establish the maximum charges for surveys and publication of notices under this chapter; and, in case of excessive charges for publication, he may designate any newspaper published in a land district where mines are situated for the publication of mining notices in such district, and fix the rates to be charged by such paper; and, to the end that the Commissioner may be fully informed on the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by such applicant for publication and surveys, together with all fees and money paid the register and the receiver of the land office, which statement shall be transmitted, with the other papers in the case, to the Commissioner of the General Land Office." The foregoing, we think, include all such portions of the Revised Statutes of the United States to which reference need be made in order to reach a solution of the question here presented. If we understand the position of counsel for respondents, and that taken by the lower court, as well as by some of the decisions of the Land Office, section 452 of the Revised Statutes should be construed to mean substantially as follows: The officers, clerks, and employés of the General Land Office are disqualified from, directly or indirectly, purchasing, or becoming interested in the purchase of, any of the public land, and any and all acts and things done in the way of an attempt to purchase or become interested in the public land are void. Any person who so attempts to purchase or become interested in the public land shall forthwith be removed from his office.

It is contended upon the part of respondents that the foregoing not only embraces substantially the intention of Congress in enacting the section in question, but that a deputy United States mineral surveyor, appointed under the provisions of section 2334, supra, is an officer, clerk, or employé in the General Land Office. The main positions taken by counsel for appellants upon the legal questions presented in this case are as follows: "(1) The statute (section 452, Rev. St. U. S.) does not affect the validity of a purchase of public lands by the persons named by it, but the sole consequence of a purchase by them is loss of employment. (2) If the validity of a purchase is affected, it is only affected in the same manner that a purchase by an agent from his principal at common law was affected, namely, it is merely voidable, and...