Mullan v. United States

• Citation: 118 U.S. 271,30 L.Ed. 170,6 S.Ct. 1041
• Parties: MULLAN and another v. UNITED STATES. 1 Filed
• Decision Date: 10 May 1886
• Court: United States Supreme Court

118 U.S. 271

6 S.Ct. 1041

30 L.Ed. 170

MULLAN and another v. UNITED STATES.¹

Filed May 10, 1886.

Asst. Atty. Gen. Maury and W. W. Morrow, for the United States.

Walter H. Smith, for appellants, John Mullan and another.

WAITE, C. J.

This is a suit brought by the United States to vacate and annul the title of John Mullan and Francis Avery to the N. 1/2 section 8, township 1 N., range 1 E., Mount Diablo meridian, listed by the secretary of the interior on the third of January, 1871, to the state of California as a school indemnity selection, on the ground that when the selection was made, and when it was listed, the land was coal land, and so known to be, both by the officers of the state who made the selection, and by Mullan and Avery when they afterwards acquired title from the state. The facts are these:

The land in question lies in the midst of a coal-bearing district, and has upon it a valuable coal bed. It is rugged and broken, and of very little if any value for agricultural purposes. As early as 1861 the Black Diamond Coal Mining Company took possession of it, and opened a coal mine. The company erected, at great expense, upon this and adjoining land, all the necessary works for mining, hoisting, and shipping the coal, and continued its operations on the property extensively from the time it entered into possession until evicted, in 1877, at the suit of Avery. Its possession was open and notorious, and the principal market for its coal was in San Francisco, or with persons trading there. There was also located on this and adjoining property quite a large mining town, which sometimes had more than 1,000 inhabitants. The lands in the township were surveyed and divided into sections in March, 1864, under the direction of the United States surveyor general. In the progress of these surveys the mines were found, and to some extent indicated on the plats, which contained abundant evidence of the coalbearing character of this particular tract. On the thirteenth of May, 1865, Frank Barnard, an officer or agent of the Black Diamond Coal Mining Company, applied to the locating agent of the state of California, under the provisions of a statute of the state entitled 'An act to provide for the sale of certain lands belonging to the state,' approved April 27, 1863, to purchase these lands, and to have them located under the authority of an act of congress of March 3, 1853, c. 145, § 7, (10 St. 247,) in lieu of an equal quantity of school lands which had in some way been lost to the state. In accordance with this application the location was made for the use of Barnard on the thirtieth of June, 1865, and approved by the state surveyor general on the eleventh of August. Barnard, however, did not pay for the land, and consequently his title under the location was never perfected. On the twenty-third of August, 1868, while the Black Diamond Company was in possession, and actually working its mine, Mullan applied to the surveyor general of California to purchase the land from the state as land which had before been selected as school section indemnity. The surveyor general at first objected because the land was coal land. After some conversation on the subject, in which Mullan was told that the lands were in the neighborhood of the Mount Diablo coal mine, and were probably coal lands, his application for the purchase was accepted, he insisting that the lands were state lands, and that the register of the land-office had acknowledged the right of the state to make the selection. This acceptance was on the twenty-fifth of August, 1868, and afterwards, on the twenty-seventh of April, 1869, the surveyor general made a formal certificate, of which the following is a copy:

'STATE OF CALIFORNIA, OFFICE OF SURVEYOR GENERAL,

'SACRAMENTO, twenty-seventh April, 1869.

'I hereby certify that, in accordance with the provisions of an act entitled 'An act to provide for the management and sale of the lands belonging to the state,' approved March 28, 1868, I have located, as a portion of the school lands, 320 acres of public land in the county of Contra Costa, at the request and for the use of John Mullan. Said land is described as follows: N. 1/2 of sec. 8, T. 1 N., R. 1 E., Mount Diablo meridian. Taken in lieu of E. 1/2 of sec. 16, T. 2 N., R. 8 W., Mount Diablo meridian. This location has been made by me in the name and for the benefit of the state of California, at the U. S. land-office for the San Francisco district, in the city of San Francisco, and with the consent of John F. Swift, register of said district, bearing date the twenty-eighth day of May, A. D. 1865, and the same is entered and numbered upon my register of locations. The said location is hereby approved, and the treasurer of Contra Costa county shall receive in payment therefor, from John Mullan, one hundred and one 65-100 (101.65) dollars, within fifty days from the date of the surveyor general's approval, being twenty per cent. of the purchase money, and interest on the balance in advance, at the rate of ten per cent. per annum from the date of the approval of the location in the surveyor general's office.

JOHN W. BOST, Surveyor General.'

Afterwards, on the twenty-first of May, Mullan having made the advance payment, a certificate of purchase was executed and delivered to him. The selection was at some time reported to the general land-office, and on the third of January, 1871, listed, with other tracts, by the secretary of the interior, to the state, 'subject to any interfering rights that may exist in them.' On the twenty-eighth of March, 1871, Mullan got from Avery $1,000, and assigned the certificate of purchase to him as collateral security, at the same time agreeing that on the sale of the land Avery might retain one-sixth of the purchase money, and also the $1,000, and interest. At the same time he also executed to Avery a formal assignment of all and every his right or cause of action against the Black Diamond Coal Company for taking coal from the premises. Afterwards, Avery paid the state the balance due on the purchase money, and received a state patent for the land on the fifth of April, 1871. Mullan had resided in San Francisco for at least a year before he made his application for the purchase, and was engaged in real-estate business. A very had also resided there from December 3, 1868, and, from his testimony, appears to have been familiar with operations of the character of those in which Mullan was engaged. Not long after Avery got his patent he brought suit against the Black Diamond Company to recover possession of the property, and $1,350,000 for the value of coal taken from it. This suit resulted in a judgment in his favor, on the sixth of June, 1877, for the land and $1,500 damages. He then brought another suit to recover the value of coal taken from the land during the pendency of the former one, in which he claimed damages to the amount of $3,000,000. After the first suit was begun the coal company applied to the general land-office for a recall of the listing of the land to the state, but, on an examination of the matter, this was refused on the fourteenth of March, 1872. After the second suit was brought the attorney general, on the application of the company, authorized a bill to be filed in the name of the United States to set aside the title of the state, 'upon the understanding that any and all costs and expenses in the matter shall be defrayed by the applicants, and that the proceeding shall be subject to the direction and control of the attorney general, in order that the interests of the government may be fully protected, and justice done to any and all parties interested.' Under this authority the present bill was...