Hawke v. Deffenbach

• Decision Date: 16 February 1885
• Citation: 22 N.W. 480,4 Dakota 20
• Parties: Hawke v. Deffenbach. Same v. Edwards.
• Court: North Dakota Supreme Court

22 N.W. 480

4 Dakota 20

Hawke v. Deffenbach.

Same v. Edwards.

Supreme Court of Territory of Dakota

February 16, 1885

On appeal from First judicial district, county of Lawrence. On demurrers to answers.

EDGERTON C. J., dissenting.

Albert Allen, for appellants. Adoniram J. Plowman, (with whom wasEdwin Van Cise,) for respondents.

CHURCH J.

These cases, with the one following, [Pierce v. Sparks. post, 491,] are typical of a series of cases involving the title to a large amount of valuable property in the mining towns of the Black Hills. The two now under consideration present the same essential conditions, and will be so treated; the facts hereinafter given being those especially pertaining to the one first mentioned. The case of Pierce v. Sparks presents some different features, which will be separately considered. The actions were for ejectment. The plaintiff averred title in fee-simple to lands embracing the premises in controversy by virtue of a patent from the United States conveying said lands to him as a placer mining claim. The entry by defendant Deffenbach is alleged to have been made on or about July 1, 1878, with full notice of plaintiff's claim, and after service of written notice not to enter or make any improvements. The answer, denying each and every allegation of the complaint, except as thereinafter stated, set up--First, facts, hereinafter more particularly stated, under which defendant claims an equitable right to a decree that plaintiff holds the premises in trust for him; praying specifically that he be decreed to convey to the defendant said premises in controversy excepting and reserving to the plaintiff in such conveyance the right to mine and extract the precious metals from said premises, provided that in so doing the plaintiff shall not materially injure, endanger, or interfere with the buildings and improvements thereon, and the necessary occupation of the premises by defendant. Second, the same and additional facts by way of counter-claim, under which it is prayed "that in the event it should be determined that the plaintiff is the owner and entitled to the possession of said premises then that the value of the land, aside from the value of the improvements thereon, and also that the separate value of the improvements, be specifically found, and that the defendant have judgment for the value of his said improvements."

The answer also contained the usual prayer for further relief. To each branch of these answers, which were substantially the same in both cases, general demurrers were filed. The demurrers were sustained, with leave to answer over; but the defendants electing to stand on the order sustaining the demurrer, judgments were entered for the plaintiff, in which by stipulation without prejudice, the damages for detention, and for use and occupation, were assessed at one dollar each. From these judgments these appeals are taken.

Recurring now more specifically to the case of Deffenbach. Upon the first branch of the case, in which the main question involved is the title to the premises in controversy, these facts may, for the purposes of the demurrer, be considered as admitted: First. That on February 28, 1877, the day upon which the treaty opening the Black Hills for settlement went into effect, a considerable tract of land, embracing the premises in question, was settled upon and occupied, by a population of some 2,000 people, for purposes of business and trade, and other municipal purposes, and laid out into lots, blocks, streets, and alleys, comprising the town of Deadwood, and that the premises in question, as one of the lots so laid out, then were and ever since have been occupied and possessed for municipal purposes by the defendant or those under whom he claims. Second. That on November 20, 1877, plaintiff made an application to the United States land-office at Deadwood for a patent for a certain placer claim, embracing these premises, and that on January 31, 1878, plaintiff duly entered said land at that office for said patent, paid the price, and received the usual receipt. Third. That plaintiff's placer claim was not located or claimed by plaintiff or any other person until after the selection, settlement upon, and appropriation of the land as aforesaid for town-site purposes. Fourth. That on July 29, 1878, the said town-site of Deadwood, embracing within its limits the plaintiff's placer claim, was entered at the same land-office by the probate judge of Lawrence county, under the provisions of the town-site act of 1867, in trust for the use and benefit of the occupants thereof, including the defendant. Fifth. That thereafter, a controversy having arisen between the plaintiff, in common with other persons similarly situated, and said probate judge, as trustee for said town-site occupants, as to their respective rights to a patent for these lands, the commissioner of the general land-office, April 10, 1879, ordered a hearing before the Deadwood land-office, between the parties, which hearing was restricted by the order of the commissioner to the single question of the mineral or non-mineral character of the land, and that, although the defendant and other beneficiaries under said trust offered at the hearing to prove, and did prove, their prior selection, use, and occupation of said land for town-site purposes, and no dispute was made as to the facts in this respect, yet the local land-officers, and subsequently, upon appeal, the commissioner, and finally the secretary of the interior, excluded such proof from consideration; and having determined from the evidence adduced that the land was valuable for minerals, canceled the entry made by the probate judge, in so far as it included these lands, and granted a patent to the plaintiff, pursuant to his said application and entry, which patent was issued January 31, 1882.

It was held by the learned secretary under whose decision the patent issued, that, it having been established that these lands were valuable for minerals, being placers, they "were not subject to town-site entry; and to that extent"--that is, to the extent that it embraced such lands--"the town-site entry of Deadwood should be canceled;" and, further, that "the surface being absolutely required for the full enjoyment of the lands by either placer or town-site owners, it is not competent to insert clauses of reservation in the town-site or mineral patents." This last ruling was made in response to a claim made on behalf of the town-site occupants, that, instead of canceling any part of the town-site entry, a patent should be issued for the whole, containing a reservation protecting "valid mining claims and possessions," and that patents should be issued to the plaintiffs and other mineral claimants, containing reservations or exceptions protecting the surface proprietorship of the town-site occupants. If this decision was correct, it disposes of that branch of the case now under consideration.

This determination presumptively establishes plaintiff's right to the ground in controversy, and, unless it appears from the facts averred in the answer that the land department, in granting that patent, committed some error of law whereby the defendants' rights were prejudiced, that presumption is conclusive. The patent is evidence of a perfected right established by the final adjudication of the tribunal erected for the especial purpose, and carries with it the presumption that every requisite prescribed by law for the acquisition of title has been duly performed. Smelting Co. v. Kemp, 104 U.S. 636; Steel v. Smelting Co. 106 U.S. 447, S. C. 1 S.Ct. 389, and cases cited.

It will be observed, as implied in this proposition, that, in order to avail himself of any error which may have been committed by the department, the defendant must show some legal or equitable right in himself; such that if the error should be corrected he would be entitled to the land in controversy. Cases above cited; also, Johnson v. Towsley, 13 Wall. 72. Such an error, the defendant claims, was committed by the department in restricting the hearing, upon the controversy above referred to, to the question of the mineral or non-mineral character of the land, and in ignoring the proof submitted of the prior occupancy of the premises for town-site purposes; and the defendant, therefore, claims that the plaintiff should be adjudged to hold the premises as his trustee, and decreed to convey the same to him accordingly. The propriety of this species of relief, in a proper case, may be conceded. It is in accordance with the doctrine of numerous cases in the state and United States courts. Stark v. Starrs, 6 Wall. 418; Quinby v. Conlan, 104 U.S. 420. Its applicability to the present case is the main ground for contention.

Passing by, for the present, the question whether the defendant could, in this indirect way, acquire a title, for town-site purposes, to land not in fact embraced within the limits of any patented town-site, or whether the desired relief should not be sought in the name of the probate judge as trustee for all of the town-site occupants, I proceed to consider the main question arising upon this demurrer. The policy of the government to reserve from sale and from the operation of ordinary grants, general and special, its mineral lands, has been declared in so many statutes, and by so many adjudications of the supreme court of the United States, that it is unnecessary, at this time, to enter upon an extended review of the history of its legislation in this regard. One or two citations will be sufficient to show with what emphasis the policy referred to has been declared. In the case of U. S. v. Gratiot, 14 Pet. 538, decided in 1840, the court say: "It has been the policy of the...