Minnesota Mining Co. v. National Mining Co.

• Decision Date: 13 January 1863
• Citation: 11 Mich. 186
• Court: Michigan Supreme Court
• Parties: The Minnesota Mining Company v. The National Mining Company

11 Mich. 186

The Minnesota Mining Company v. The National Mining Company

Supreme Court of Michigan

January 13, 1863

Heard November 28, 1862; November 29, 1862,

Error to the District Court of the Upper Peninsula, for the county of Ontonagon. The case is sufficiently stated in the opinion.

Judgment of the District Court of the Upper Peninsula for the county of Ontonagon, affirmed, with costs.

S. T Douglass and T. Romeyn, for plaintiffs in error.

A. W Buel, for defendants in error.

Christiancy J. Martin, Ch. J. and Manning, J.,concurred. Campbell, J. did not sit in this case.

OPINION

Christiancy J.:

This was an action of ejectment, brought by the plaintiffs below (plaintiffs in error) to recover a portion of section sixteen in township fifty north of range thirty-nine west, in the Lake Superior land district.

The plaintiffs claim under a patent from the United States, issued April 9th, 1852, purporting to convey the lands in question (together with a large amount of lands on other sections in the same township, not here in controversy). By the evidence in the case, this patent appears to have been issued upon a pre-emption purchase under the act of March 1st, 1847: 9 U.S. Stat. at Large, p. 146. The patent recites that full payment has been made according to the provisions of this act, and the act of September 26, 1850, reducing the minimum price of the mineral lands. The act last referred to has no bearing upon any question raised in this case. The patent contains an express reservation of "any right which the State of Michigan may have in and to" the lands on section sixteen mentioned in the patent, "under or by virtue of the provisions of the first section of the act of Congress of the 23d day of June, 1836, entitled "an act supplementary to the act entitled an act to establish the northern boundary line of the State of Ohio, and to provide for the admission of the State of Michigan into the Union on certain conditions."

By this act (which, being accepted by the State, became an irrevocable ordinance, binding as well upon the Federal Government as the State), it is provided, that "section numbered sixteen in every township of the public lands, and when such section has been sold or otherwise disposed of, other lands equivalent thereto and as contiguous as may be, shall be granted to the State for the use of schools."

The plaintiffs' counsel insist that, until the sixteenth section has been identified by survey of the public lands, the title of the State can not attach to the specific lands; that the Federal Government have therefore the power to dispose of portions of the public domain, before such surveys have been made, and that if it turn out, upon survey, that section sixteen has been thus disposed of, the obligation of the Federal Government to the State is fully performed by giving to the State other lands equivalent thereto: he admits however that if not thus disposed of, the title of the State would attach at once upon the completion and return of the surveys.

Upon this theory, and to show that the United States had made an inchoate disposition of these lands which was binding upon them, and that the rights of the parties under whom the plaintiffs claim had attached before the survey, and that the lands were thus taken out of the operation of the grant to the State, the plaintiffs, on the trial, proved that the lands were not duly surveyed and the survey returned until the autumn of the year 1847: That on the 5th day of August, 1844, a written permit was given by the mineral agent of the United States, to Joseph L. Hempstead, under whom plaintiffs claim, to dig for ores, etc. That a selection for the purpose of mining being duly made under this permit, of a tract including the land in question, the secretary of war, on the sixteenth day of September, 1845, gave to said Hempstead a written lease of the land for three years from that day.

It is admitted by the plaintiffs' counsel that this lease (like all other similar leases of the mineral lands in the Lake Superior copper mining district, executed by the secretary of war), was entirely invalid at the time of its execution, being executed without authority of law. But it is insisted that, while the term which it purported to create was still unexpired, this lease (with other similar leases) was ratified and confirmed by the act of Congress of March 1, 1847, already alluded to. It was shown upon the trial that the lands in question were, in November, 1849, reported by the geological surveyor of the United States, to the secretary of the interior, as mineral lands. And it is insisted that, by this act of 1847, a right of preemption was given to the lessee and his assigns to enter and purchase these lands at any time during the continuance of the lease, by showing a full compliance with its conditions and terms. The plaintiffs also sought to show that they had made the necessary application and proof, before the proper officers, to entitle them to the pre-emption under the act; and though made after the expiration of the lease, they have undertaken to show that they did all that it was competent for them to do; that the delay was caused by the government, and that the lease was extended until the entry was completed.

For the purposes of the present case, it may be admitted that the plaintiffs had fully complied with the...