Loney v. Scott

• Decision Date: 13 December 1910
• Citation: 57 Or. 378,112 P. 172
• Parties: LONEY et al. v. SCOTT.
• Court: Oregon Supreme Court

112 P. 172

57 Or. 378

LONEY et al. v. SCOTT.

Supreme Court of Oregon

December 13, 1910

Appeal from Circuit Court, Umatilla County; H.J. Bean, Judge.

Suit by Samuel Loney and others against Joseph C. Scott. Decree for plaintiffs, and defendant appeals. Decree modified.

The N.W. 1/4 of the N.E. 1/4, and the N.E. 1/4 of the N.W. 1/4 section 8, Tp. 5 N.R. 30 E., W.M., in Umatilla county, which includes the land in controversy in this suit, together with 183 sections of adjacent lands, was by the Secretary of the Interior, on August 16, 1905, temporarily withdrawn "from any form of disposition whatever under the first form of withdrawal" for irrigation works in connection with the Umatilla project, as provided in section 3 of the act of June 17, 1902, c. 1093, 32 Stat. 388 (U.S.Comp.St.Supp.1909, p. 597). Section 3 of that act provides for two classes of withdrawals: (1) "The Secretary of the Interior shall *** withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act." (2) He is authorized to "withdraw from entry *** any public lands believed to be susceptible of irrigation from said works." Those withdrawn under the first form are lands that may possibly be needed in the construction and maintenance of irrigation works, while those included in the second form are lands which may possibly be irrigated from such works.

The land in controversy here was by order of the Secretary of the Interior restored to public entry on March 2, 1907. On January 7, 1907, the plaintiffs, the Knights, attempted to locate three placer mining claims in section 8, Tp. 5 N., R 30 E., W.M., in Umatilla county, Or., adjacent to and parallel with the right of way of the Oregon Railway &amp Navigation Company through that section; these claims being the land in controversy. They posted a notice of location upon each of the claims and staked the same in the manner required by law--1500 by 600 feet. Placer claim No. 1 is described as in section 8, Tp. 5, range 30 N., W.M. "commencing at corner stake No. 1 at the south boundary line of the right of way of the O.R. & N. Co., thence," etc. The other two claims are described by reference to No 1. The notices were duly recorded in the records of Umatilla county, Or.

Plaintiffs also allege the performance of assessment work each year on each claim, as required by law, and the conveyance by the Knights to plaintiff Loney of an undivided one-third interest in the claims. It is further alleged that the claims are valuable for the mineral they contain, viz., large deposits of building sand and placer deposits of gold. It also appears that, under the provisions of certain acts of Congress, passed in the years 1864 and 1870, a patent was issued by the United States to the Northern Pacific Railway Company, dated March 1908, for the N.W. 1/4 of the N.E. 1/4, and the N.E. 1/4 of the N.W. 1/4, section 8, Tp. 5 N., R. 30 E., W.M., as a lieu land selection, and on May 15, 1908, the railway company conveyed the same to defendant; that about one-half of placer claim No. 2, and about two-thirds of claim No. 3 are situated upon the 80 acres above described. Defendant relies upon the United States patent to the railway company and his deed from the railway company as evidencing his title, and further contends that plaintiff could not make a valid location of the mining claim while the land was withdrawn from entry; also, that sand is not such a mineral as can be the subject of a mining location; that, conceding all that plaintiffs claim, they have no standing in equity, for the reason that defendant's patent cannot be attacked by them, unless they have a right to the title from the United States.

Defendant Joseph Scott on June 8, 1907, made the nonmineral affidavit, required under the United States statute, upon the application of the railway company for the land, in which he says: "That there is not, within the limits of said land, any known vein or lode of quartz or other rock in place bearing gold, silver, ***; that there is not, within the limits of said land, any known deposit of coal, or any known placer deposit, oil, or other valuable mineral; *** that no portion of said land is claimed for mining purposes under the local customs or rules of miners or otherwise, except that part of said land is claimed under placer filings, which said filings do not state what minerals said lands contain; that said land is essentially nonmineral in character, unless sand suitable to be used in building constitutes a mineral." The railway company made its application to the United States Land Office for the land on June 12, 1907, being the first day on which such application could be made after the land was restored to entry.

The defendant brought an action against plaintiffs for the possession of the land, and they filed this complaint as a cross-bill in such action, in which they ask that the law action be permanently stayed, and that the legal title which defendant has to that portion of the premises embraced in the mining claims be decreed to be held by him in trust for plaintiffs herein. Decree was rendered for plaintiffs, and defendant appeals.

C.C. Gose and C.H. Carter, for appellant.

S.A. Lowell and G.W. Phelps, for respondents.

EAKIN, J. (after stating the facts as above).

There are several important questions involved in determining plaintiff's right to relief in this suit. First: It is contended by defendant that plaintiffs could not make a valid location upon land withdrawn from settlement. Withdrawals for forest reserves expressly reserve to the prospector all mineral deposits for mining exploration and location; but withdrawals made by the Secretary of the Interior, under the act of June 17, 1902, c. 1093, 32 Stat. 388 (U.S.Comp.St.Supp.1909, p. 597), providing for irrigation projects, if made under the first form, that is, for "irrigation works," are not subject to mining locations, as they are intended, as permanent reservations for governmental use, and amount to a legislative withdrawal. Frisbie v. Whitney, 9 Wall. 187, 19 L.Ed. 668; Yosemite Valley Case, 15 Wall. 77, 21 L.Ed. 82; Shepley et al. v. Cowan et al., 91 U.S. 330, 338, 23 L.Ed. 424. While lands withdrawn under the second form, viz., for irrigation purposes under such project, are disposed of thereunder only for homesteads, and all lands open to homestead settlement are also open to exploration and location for mineral deposits. 35 Land Dec.Dep.Int. 216; Albert M. Crafts, 36 Land Dec.Dep.Int. 138. The language of section 3 of the act under consideration, relating to withdrawals under the first form, provides that the Secretary of the Interior "shall restore to public entry any of the lands so withdrawn when in his judgment such lands are not required for the purposes of this act." There were withdrawn, under this provision, for irrigation works, about 183 sections, which may be reasonably presumed to be far in excess of what may be required for that purpose, and portions thereof, including the land above described, were, in fact, soon thereafter restored to the public domain while plaintiffs were in possession of the placer claims. It appears that the Interior Department, under a former statute, providing for withdrawals for irrigation projects, which provides that the reservoir shall be restricted to and contain only so much land as is actually necessary for its construction, held that a mineral entry, based on a location made after withdrawal of the land for a reservoir site, conferred no right, but may be suspended, and, if subsequently restored to entry, the location may proceed to patent. See, also, Prescott & Arizona Central Ry. Co., 13 Land Dec.Dep.Int. 47; Newton F. Austin, 18 Land Dec.Dep.Int. 4; Noonan v. Caledonia Min. Co., 121 U.S. 393, 7 Sup.Ct. 911, 30 L.Ed. 1061. But we do not deem it necessary to determine that question as, under the view we take of the case, the possession by plaintiffs of the ground as mining claims, at the time of the application by the railway company for a patent therefor, is sufficient to defeat its action for...