Johnston v. Harrington

• Decision Date: 13 October 1892
• Parties: JOHNSTON v. HARRINGTON ET AL.
• Court: Washington Supreme Court

31 P. 316

5 Wash. 73

JOHNSTON v. HARRINGTON ET AL.

Supreme Court of Washington

October 13, 1892

Appeal from superior court, King county; I. J. LICHTENBERG, Judge.

Action by E. W. Johnston against Harrington & Smith to foreclose a mechanic's lien. Judgment for defendants. Plaintiff appeals. Reversed.

J. A. Stratton and Allen &amp Powell, for appellant.

Preston, Carr & Preston and W. R. Bell, for respondents.

ANDERS C.J.

The respondents were owners of a lot in the city of Seattle described in the complaint, on which they were erecting a building. They had contracted with one C. E. Crow for the stonework, and the appellant, Johnston, furnished Crow the stone for the building. This action was instituted by Johnston to foreclose a mechanic's lien on the premises for the stone so furnished. Crow was made a party defendant but had absconded before the action was brought, and service could not be had upon him. A trial upon the merits was had against the defendants, Harrington & Smith, resulting in a judgment for them, and plaintiff appealed. The appellant, Johnston, had filed a coal declaratory statement on certain public land of the United States, situated in Skagit county, and was in possession thereunder. He let a contract to one William Tinkham to develop this coal claim. Tinkham began to make an excavation to intersect whatever veins of coal there were on the land, and to level a place for machinery. In making the excavation, Tinkham blasted out stone suitable for building purposes, and sold it. Subsequently Tinkham sublet the contract to C. E. Crow, and agreed, for a stated price, to deliver the stone on board scows to Johnston, who transported it to Seattle, and sold it as building stone. Johnston supplied Crow, the contractor for Harrington & Smith, with stone for the building until he absconded, and continued to deliver stone for the building afterwards. The value of all the stone so furnished was $2,032.20, of which only $358.20 was paid. After finding substantially as facts all of the material allegations of the complaint, the court further found that the work done upon the said land was done in connection with the said stone quarry, and for the purpose of quarrying the said stone for sale. From the facts found the court concluded that neither Crow, Johnston, nor Tinkham had any right, title, or interest whatsoever to any portion of the stone mentioned and described in plaintiff's complaint, the same having been taken from the public lands of the United States, and dismissed the action, at the cost of the plaintiff.

The primary question in the case is, was Johnston the owner of the stone that went into the building of the respondents under the agreement with their agent and contractor, Crow? The learned counsel for the respondents assert in their brief that the title to the land from which the stone was taken was in the United States, that the stone was part of the land, and therefore contend that the appellant could have no ownership whatever in the stone; that, admitting that appellant's coal filing was made in good faith, he acquired no right, privilege, or license thereunder to quarry stone for sale. They argue that while he had the right to go upon the land in good faith, and prospect for coal, and, for that purpose, to sink shafts, drive tunnels, and make other explorations, he had no more right to quarry and sell stone than a timber, homestead, or pre-emption claimant would have to remove and sell the timber growing upon the land claimed by him; and they cite numerous cases in the federal courts to show that claimants under the land laws of the United States are not permitted to cut and sell timber growing upon their claims, for speculative purposes, before making final proof and entry. While not citing any case involving facts similar to those in the case at bar, they insist that upon principle the cases cited should be held applicable here. It must be admitted that the position of counsel is, to say the least, not without plausibility. It cannot be denied that the United States is the owner of the public lands within its territorial jurisdiction, including everything both above and below the surface; but whether the stone in controversy, as between these parties, after being severed and taken from the ground, belonged to the United States or to the appellant, can best be determined by ascertaining the claims of the former, as shown by its legislation, and the general policy it has adopted with reference to its mineral and other lands. The general government has always been, and still is, the owner of vast areas of land covered with timber of superior quality, and of immense value, much of which is remote from settlements and difficult of direct supervision, and yet so accessible as to be peculiarly subject to spoliation. For this reason it has deemed it for the best interests of the people at large to adopt stringent measures to prevent these lands from being denuded of their timber, and thus deprived, in many places, of almost their entire value. Congress has enacted laws making it a crime punishable by a heavy penalty to cut down or destroy the timber growing on the public domain, and many suits have been waged by the United States, in its courts, to recover the value of timber unlawfully taken from the public lands. But with regard to mineral lands the policy of the government has been different. Recognizing the fact that the precious metals and other valuable mineral substances are usually hidden beneath the surface of the earth, and that their discovery and extraction are nearly always the result of patient search and labor, and of large expenditures of money, congress has always tacitly permitted any person who desired to do so to enter freely upon the mineral lands, and not only search for the precious metals, but, if discovered, to dig them out, and appropriate them to his own use, without requiring him either to pay for them or the land from which they were taken.

Previously to the year 1866 the mineral lands of the United States were neither subject to sale nor to entry under any law of the United States. There was no law of congress authorizing any person to mine upon the public lands; and yet it is a well-known fact that millions of dollars' worth of minerals were taken from these lands by individuals and corporations who had no right whatever in the land itself. Soon after the discovery of gold in California, thousands and tens of thousands of sturdy citizens from all parts of the country wended their way, by slow and difficult marches, to that then far-off land, lured only by the hope of honest gain. The government, though aware of the fact, took no steps to intercept them, and sent no "special agents" to prevent its hidden treasures from being discovered and taken from its lands; nor did congress pass any law declaring the miner a trespasser; neither did the United States bring any suits to recover from the miner the fruits of his toil. After many years of acquiescence in free and unrestricted mining in the lands belonging to the government, congress in the year 1866 passed a law declaring the mineral lands to be free and open to exploration for minerals, and providing rules and regulations whereby title to the same might be obtained. It did not, however, restrict the previously recognized right to mine, nor attempt to...