Hebert v. Bond
| Citation | 56 S.D. 220,228 N.W. 185 |
| Decision Date | 10 December 1929 |
| Docket Number | 5325 |
| Parties | FRANK HEBERT, Respondent, v. FRANK C. BOND and Carl A. Hunter, (RARE MINERALS CO., Intervener), Appellants. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County, SD
#5325—Affirmed
Turner M. Rudesill, Bangs & Wood, Rapid City, SD
Attorneys for Appellant.
W. G. Rice, Deadwood, SD
George E. Flavin, Rapid City, SD
Attorneys for Respondent.
Opinion Filed Dec 10, 1929
Plaintiff brought this action to quiet title in himself to a lode mining claim in Pennington county. Frank C. Bond and Carl A. Hunter were named as defendants. Thereafter the Rare Minerals Company came into the case as intervener. From that time on, Bond and Hunter appear to have dropped out of the case and the Rare Minerals Company took the place of defendants, and in this opinion the plaintiff, Hebert, will be referred to as plaintiff and the Rare Minerals Company as defendant.
The evidence shows: That, on or about the 10th day of March, 1886, the plaintiff, a citizen of the United States, went upon the unsurveyed and unappropriated mineral lands of the United States and made a discovery of mineral-bearing rock, to wit, tin ore in place. He thereupon performed all the acts and things requisite and necessary to constitute the location and appropriation of a good and valid mining claim, and named the same Tin City lode mining claim, 150 feet in width on either side of the middle of the said lode or vein and running 900 feet in a northerly direction and 600 feet in a southerly direction from the center of his discovery shaft. Thereafter, and on the 21st day of April, 1886 plaintiff recorded in the office of the register of deeds in Pennington county a location certificate of the said lode mining claim. That, during all of the time from and after the location of the said Tin City lode and down to the commencement of this action, plaintiff by and through himself, his agents and lessees, performed the necessary development work requisite to maintain his ownership and right of possession to the said mining claim.
On or about the 10th day of February, 1919, plaintiff entered into a written contract with one W. N. Hunter, who was acting for and on behalf of defendant, whereby plaintiff agreed to sell and convey to said Hunter the said Tin City mining claim for a consideration of $30,000, to be paid to plaintiff according to the terms of the said contract. Immediately after the execution of the said contract, defendant entered upon the said mining claim and proceeded to make preparations to mine and ship the ore therefrom. Thereupon one Mary McDermott, claiming to be the owner of the said ground by virtue of a homestead patent issued to her by the United States government, claimed to be the owner of the said mining claim, and drove defendants from the said premises.
The facts relative to the McDermott claim appear to be as follows: Some time on or about the month of July, 1886, she built a dwelling house on a small tract of ground along the creek bottom, and adjacent to the said Tin City lode, that was susceptible of being used for farm and gardening purposes. It is not claimed that she filed a homestead claim in the Land Office, if at all, until some time after 1900. It is not shown or attempted to be shown that she claimed any specific tract of ground or that she had in any manner marked the boundaries of any tract of land or had a survey made of any tract of land, and she could not have made a claim by government subdivisions of the land because it is a matter of public record of which the court will take judicial notice that the township in which said homestead is situated was not surveyed until after the month of November, 1897. Neither does she appear to have had any clear idea of the location of the land she was claiming, because, when she made final proof in 1904, she applied for and received a patent to the N 1/ 2 NE 1/4 of section 22, the SE 1/ 4 SE 1/4 of section 15, and the SW 1/ 4 SW 1/4 of section 14, all in township 2 south of range 4 east. The Tin City lode is situated in the west half of the NE 1/4 of section 22, about two-thirds thereof being in the NW 1/ 4 NE 1/4 of said section. She was not satisfied with the tract described in the patent, and in 1912 she surrendered the same for cancellation, and in lieu of the said tract applied for and received a patent to the N 1/ 2 NE 1/4 and the NE 1/ 4 NW 1/4 of section 22 and the SE 1/ 4 SE 1/2 of section 15 in said township. In 1916 she surrendered this latter patent for cancellation and applied for and received a patent to the W 1/ 2 NE 1/4 and the S 1/ 2 SW 1/4 of section 22 of said township. This tract included the whole of the Tin City lode.
During all of the time from 1886 down to the commencement of this case Mrs. McDermott was well acquainted with the plaintiff; she was familiar with the Tin City lode, knew of the mineral character of the same, and knew of the development work that was being done thereon by plaintiff. In fact, she obtained permission from plaintiff to plow up and use a small portion of the south end of the Tin City claim; and down to the month of March, 1919, she never asserted any claim, nor intimated to any one that she claimed any part of the Tin City lode. As late as August, 1918, she told one of the witnesses who was on the ground doing some surveying for a lessee of plaintiff that the Tin City lode was Hebert’s ground, and that she made no claim to it, and plaintiff testified that as late as March, 1919, Mrs. McDermott admitted to him that he owned the said ground.
In regard to the assertion of ownership by Mrs. McDermott, the trial court made the following finding of fact:
“That on the 17th day of February, 1919, the plaintiff, The Rare Minerals Company, a corporation, being in possession of the said Lode Mining Claim under the said contract and the said plaintiff, Frank Hebert, being then temporarily absent from the State of South Dakota, the said Mary E. McDermott, for the first time, made claim to the title and possession of the lands embraced within the limits of the said Lode Claim, and that thereupon the officers of the plaintiff [intervener] The Rare Minerals Company, a corporation, made careful search and investigation of the source and condition of the title thereto and became informed and well knew that the said patents and each thereof were procured by said Mary E. McDermott to be issued to her by certain false and fraudulent representations by her made to the land department of the United States of America and its officials and were procured and issued by false imposition and mistake in the following particulars, to wit: That the lands included in the said patents and embraced within the limits of the said Tin City Lode Mining Claim were and are mineral in character and not agricultural and were and are valuable for the mineral contained therein and were and are of no value as agricultural lands, and that said Tin City Lode Mining Claim contains valuable deposits of tin and mica, that the said Mary E. McDermott was not at the time of the issuance of the said patents or any thereof, or at the time of her applications to enter said lands, or at any other time in possession of the lands embraced within the limits of the said Tin City Lode Mining Claim or any part thereof, and at all of the times last mentioned the said lands so embraced within said mining claim were not vacant or unoccupied lands of the United States of America, and were not subject to homestead entry, and that notwithstanding the said facts the said Mary E. McDermott falsely and fraudulently represented as aforesaid that the lands were agricultural and not mineral in character and that the same were vacant, unoccupied and unappropriated lands of the United States of America, in the possession of her, the said Mary E. McDermott, and well knew that at all of the times hereinbefore mentioned the said Tin City Lode Mining Claim was well and notoriously known as a mining claim and the lands therein as mineral in character, and as a property which with reasonable development would become valuable as a mine; and that at said time, to wit: on or about the 17th day of February, 1919, the plaintiff, The Rare Minerals Company, a corporation, and its officers became informed and well knew that the said Mary E. McDermott had acquired and received the said patents and the title to the lands herein described and embraced within the limits of the said Tin City Lode Mining Claim by means of the false and fraudulent representations made by her and by imposition upon the officers of the land department of the United States and the defendant, Frank Hebert and by gross mistake on the part of the said officers as to character of said lands so embraced within the limits of the said Tin City Lode Mining Claim, and the rights of the defendant, Frank Hebert, thereto.”
At the close of the trial, judgment was entered decreeing, among other things, that the plaintiff, Frank Hebert, was and at all times since on or about the 10th day of March, 1886, had been, the owner and entitled to the possession of the said Tin City lode mining claim; that the said lode mining claim then was, and at all times since the said 10th day of March, 1886 had been, a valid and existing lode mining claim under and by virtue of the laws of the United States of America, and that the title of the said Frank Hebert therein and thereto was good and valid as against all persons except only the United States of America and the rights of the Rare Minerals Company under and by virtue of the contract of sale entered into by and between the said Frank Hebert and the Rare Minerals Company during the month of February, 1919. From this judgment the Rare Minerals Company appeals.
In its brief, appellant says that “the principal, if not the only debatable question...
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