Jorgensen v. McAllister

• Decision Date: 22 July 1921
• Court: Idaho Supreme Court
• Parties: MARY A. JORGENSEN and the SPOKANE & EASTERN TRUST CO., Trustee for the Estate of GEORGE LAUMAN, Deceased, Respondents, v. W. C. MCALLISTER, and the STATE OF IDAHO, Intervenor, Appellants

202 P. 1059

34 Idaho 182

MARY A. JORGENSEN and the SPOKANE & EASTERN TRUST CO., Trustee for the Estate of GEORGE LAUMAN, Deceased, Respondents, v. W. C. MCALLISTER, and the STATE OF IDAHO, Intervenor, Appellants

Supreme Court of Idaho

July 22, 1921

MINING CLAIM - SUFFICIENCY OF DESCRIPTION - CONFLICT BETWEEN MINERAL PATENT AND CLEAR LIST.

1. A description of a mining claim in a mineral patent by which the property may be identified with reasonable certainty by a competent surveyor is sufficient.

2. Where it is made to appear that part of a tract of land clear-listed to the state by the federal government for educational purposes had been already conveyed by the government to private parties by a mineral patent, such clear-list is void in so far as it purports to convey any part of such mining premises.

3. Held, that the evidence supports the findings of the lower court, and that the findings are sufficient to support the judgment.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Action to quiet title. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs awarded to respondents.

L. H Wheeler, G. W. Suppiger and Roy L. Black, Attorney General for Appellant.

The land in question was never before the Department of the Interior for decision as to character until the secretary rendered the judgment awarding it to the state. (U. S. Mining Regulations, p. 66; Department U. S. Regulations for Surveyors-General, p. 73, sec. 135, Lindley on Mines, 3d ed., sec. 104; secs. 2914, 5369, 5413, 5423, 5425, and 5325, C. S.; 2 Pom. Eq. Jur., secs. 680-682 (b); Slauson v. Goodrich Transp. Co., 99 Wis. 20, 74 N.W. 574, 40 L. R. A. 825.)

J. H. Forney, for Respondents.

The state of Idaho had not title whatever to the property involved in this controversy.

The state authorities in making the selection committed the error, and this error could not be attributed to the United States. The mere fact that the Secretary of the Interior approved the selection does not aid the defendants. (Weeks v. Bridgman, 159 U.S. 541, 16 S.Ct. 72, 40 L.Ed. 253; Garrard v. Silver Peak Mines, 82 F. 587-589; Milner v. United States, 228 F. 436, 143 C. C. A. 13.)

BUDGE, J. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

This is an action to quiet title to the Last Chance mica lode mining claim, and to restrain appellants from removing mica therefrom.

The record discloses that the mine in question, containing 15,273 acres, was located on unsurveyed public domain on Aug. 1, 1883, as Mineral Survey No. 674, Lot No. 37, in the Robinson mining district, Latah county; that the U.S. Land Office at Lewiston issued to Paul F. Mohr, George Lauman, and Mary, Pauline and Jennie Jorgensen, a receipt for payment in full for said claim on May 27, 1890; that a mineral certificate or patent was issued by the United States on Jan. 8, 1892, conveying the mining premises to the above-named parties, and was recorded in Latah county on Jan. 26, 1893; that Mary A. Jorgensen, having purchased the interests of Pauline and Jennie Jorgensen, is now the owner of an undivided three-fifths interest in the mine; that the estate of George Lauman, of which the Spokane & Eastern Trust Co. is trustee, is the owner of an undivided one-fifth interest, and that E. E. Rogers is the record owner of the remaining one-fifth interest.

It further appears that the south half of township 41 north, range 2 west, B. M., was surveyed in September, 1883, and the plat thereof filed Sept. 13, 1884; that on March 8, 1894, 11,323.57 acres of land in Idaho was clear-listed by the federal government to the state, as lands for state normal school purposes; that a segregation plat of sec. 22 of said township, upon which appears a portion of the Last Chance mine, was filed in the office of the Surveyor-General of Idaho, on Mar. 29, 1906; that on June 6, 1906, the state contracted to sell the SW. 1/4 SW. 1/4 of sec. 22, which was part of the lands clear-listed to the state, to Alexander Monroe; that Monroe assigned his contract to W. C. McAllister on June 14, 1917; and that about ten acres of the Last Chance mine is situated within said SW. 1/4 SW. 1/4 of sec. 22.

Respondents base their claim of title to the mining premises upon the location thereof in 1883, the receipt and the mineral patent. The state of Idaho bases its claim upon the clear-list of March 8, 1894, and appellant McAllister relies upon the contract between the state and Monroe and the assignment thereof to himself in order to establish his title.

Appellants contend that the land described in the mineral patent lies wholly outside the SW. 1/4 SW. 1/4 of sec. 22. The court...