Mt. Rosa Min., Mill. & Land Co. v. Palmer

• Decision Date: 08 February 1899
• Citation: 56 P. 176,26 Colo. 56
• Parties: MT. ROSA MINING, MILLING & LAND CO. v. PALMER.
• Court: Colorado Supreme Court

56 P. 176

26 Colo. 56

MT. ROSA MINING, MILLING & LAND CO. v. PALMER.

Supreme Court of Colorado

February 8, 1899

Appeal from district court, El Paso county.

Action by J. S. Palmer against the Mt. Rosa Mining, Milling & Land Company to quiet title. There was a judgment for plaintiff and defendant appeals. Reversed.

A. T Gunnell, Wm. C. Robinson, and George L. Hodges, for appellant.

B. F. &amp W. S. Montgomery, Bruce Glidden, and J. H. Maupin, for appellee.

Charles Cavender, John M. Maxwell, and John A. Ewing, amici curiae.

GODDARD J.

This is an action instituted by the appellee, plaintiff below against appellant, the Mt. Rosa Mining, Milling & Land Company, defendant below, to quiet his title to two lode mining claims situate within the exterior boundaries of a certain tract of land conveyed to appellant by a government patent, as placer mining ground. Upon the trial, it was admitted that the lode claims were formally and regularly located as provided by law, except as to the discovery of mineral therein; that affidavits in lieu of labor, for the years subsequent to their location, were properly filed by the owners; that by proper conveyances the plaintiff became, and was, the owner of whatever title had been acquired by virtue of such locations. It was further agreed that the placer owned by the defendant was located some time prior to the location of the lode claims; that the application for a patent was not made until after their location; that the defendant, through proper conveyances, was the owner of the placer. The only questions of fact that remained in dispute were whether or not a vein or lode was discovered and known to exist in the Handy Andy and Newman claims, within the boundaries of the Mt. Rosa placer, at the time appellant applied for patent for such placer, on August 18, 1892. The court, though sitting in the exercise of its equity jurisdiction, called a jury, to which it submitted these questions. Their answers were in the affirmative, and were adopted by the court as a part of its findings; and thereupon, and from a consideration of all the evidence introduced, the court found that the facts established were substantially these: That the grantors of plaintiff, on March 18 and April 5, 1892, entered upon the land included within the exterior boundaries of the Mt. Rosa placer, and located, respectively, the Handy Andy and Newman lode mining claims, upon discoveries of mineral bearing rock in place, within the boundaries of said claims, and subsequently performed all acts necessary to complete a valid location of said claims; that, by duly executed and recorded deeds of conveyance, plaintiff became vested with all right, title, and interest in and to the same; that on November 7, 1892, the Mt. Rosa Mining, Milling & Land Company made application, in the proper United States land office, for a patent for the Mt. Rosa placer mining claim, and on April 24, 1893, the patent therefor was issued, and it thereby became, and is still, seised of all the right, title, and interest to the tract of land described therein. The court also found, as conclusions of law, that the Handy Andy and Newman lode mining claims, respectively, had been duly discovered, located, and recorded, within the exterior boundaries of the tract of land described in the Mt. Rosa placer patent, before the time of said application; that the ground described in said lode mining claims was excepted out of the land described in, and conveyed by, the placer patent; that the plaintiff was, at the time of the commencement of this action, and still is, entitled to the possession of the ground described therein; and entered judgment in favor of plaintiff for the possession of the ground in dispute, enjoining defendant from asserting any interest adverse thereto, and for costs. To reverse this judgment, the company brings the case here on appeal.

Error is predicated upon the refusal of the court to give certain instructions, asked for by appellant, defining what constitutes a lode or vein of mineral, under the statute. We think this subject was properly covered by the instructions given, and that therein the court gave the generally accepted definition; and also stated the necessary conditions that would constitute it a known lode, under section 2333, Rev. St. U.S. The evidence not being preserved in the bill of exceptions, we must presume it was sufficient to sustain the answers of the jury and findings of the court that lodes were discovered and known to exist within these respective locations prior to the application for patent. But counsel for appellant contend that, notwithstanding this, appellee cannot maintain this action, for two reasons: First, because, appellant having made a valid location of the ground as a placer claim, it was entitled to the exclusive possession thereof, and the entry of plaintiff's grantors thereon was wrongful, and no possessory right to the lodes was acquired thereby. Second, that if, notwithstanding such wrongful entry, valid locations of the lodes were made, the title thereby acquired is not sufficient to support an action to quiet title.

It is undoubtedly true that, when a locator perfects a valid location to a lode or placer mining claim, he is entitled to the exclusive possession and enjoyment of the lands located for all purposes granted by the act of congress. In the case of a lode location, the land located is segregated from the public mineral domain of the government, and the grant confers upon the locator the exclusive right of possession and enjoyment of the surface, and any lode the top or apex of which is within its surface boundaries (Rev. St. U.S. § 2322); and, so long as he complies with the requirements of the act, he can protect his possession of the surface of his claim, as well as such lodes, from invasion by any subsequent lode or placer locator. Manuel v. Wulff, 152 U.S. 505, 14 S.Ct. 651; Armstrong v. Lower, 6 Colo. 393; McFeters v. Pierson, 15 Colo. 201, 24 P. 1076; Seymour v. Fisher, 16 Colo. 188, 27 P. 240; Belk v. Meagher, 104 U.S. 279; Gwillim v. Donnellan, 115 U.S. 45, 5 S.Ct. 1110. On the other hand, those provisions of the statute that give the locator of a placer the right to locate and patent all other forms of mineral deposit included within the surface boundaries of his claim expressly except therefrom veins of quartz or other rock in place, known to exist within its limits. Rev. St. U.S. §§ 2329, 2333. Such lodes, therefore, are not the subject of a placer grant; and a placer location does not operate to confer the title or possession thereof upon the placer claimant, or withdraw them from subsequent location by others. In other words, the placer location gives a qualified possession of the ground located; that is to say, it confers upon the owner the exclusive right of possession of the surface area, for all purposes incident to the use and operation of the same as a placer mining claim, and all unknown lodes or veins, but does not give right of possession to known lodes or veins within its limits. The right to the possession of such lode or veins can be acquired only by locating them as lode claims. 1 Lindl. Mines, § 413; Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 Land. Dec. Dep. Int. 95; Reynolds v. Mining Co., 116 U.S. 687, 6 S.Ct. 601. It has been uniformly held that a patent for a placer claim does not convey title or right of possession to the patentee to any lodes known to exist therein at the date of application; that, if he desires to obtain such title and possession, he must comply with the provisions of section 2333, and patent them as lode claims. In Reynolds v. Mining Co., supra, Justice Miller, who delivered the opinion of the court, speaking upon this subject, said: 'We are of opinion that congress meant that lodes and veins known to exist when the patent was asked for should be excluded from the grant, as much as if they were described in clear terms. It was not intended to remit the question of their title to be raised by some one who had or might get a better title, but to assert that no title passed by the patent in such case from the United States. It remains in the United States at the time of the issuing of the patent, and in such case it does not pass to the patentee. He takes his surface land and his placer mine, and such lodes or veins of mineral matter within it as were unknown; but, to such as were known to exist, he gets by that patent no right whatever.' Since a patent conveys to the placer locator no other or different rights than those acquired under the location, it inevitably follows, from the doctrine thus announced, that he has no possession, and acquires no right to any lodes known to exist within his claim, by virtue of his placer appropriation. In Aurora Lode v. Bulger Hill & Nugget Gulch Placer, supra, Secretary Smith, in discussing the rights acquired by the placer locator, said: 'Such a location, in and of itself, does not establish any right in the claimant under it to the superficial area within its boundaries, except as a placer claim or mine. Of its own force, it cannot operate to give title to or property rights in any veins or lodes within its boundaries. True, a placer mining claim...