Multnomah Min., Mill. & Development Co. v. United States

• Citation: 211 F. 100
• Decision Date: 05 January 1914
• Docket Number: 2265.
• Parties: MULTNOMAH MINING, MILLING & DEVELOPMENT CO. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

211 F. 100

MULTNOMAH MINING, MILLING & DEVELOPMENT CO. v. UNITED STATES.

No. 2265.

United States Court of Appeals, Ninth Circuit.

January 5, 1914

A. G Elston, of Spokane, Wash., for appellant.

Oscar Cain, U.S. Atty., and Edmond J. Farley, Asst. U.S. Atty both of Spokane, Wash.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The appellant had acquired patents to two placer claims aggregating 257 acres of land, the locations having been made in 1901 and 1902, and the patents having been issued on October 31, 1904. One was known as the Peabody claim, and the other as the Wickham claim. The Peabody claim extends about a mile on both sides of the Nespelem river, just above its juncture with the Columbia river, and the Wickham claim lies to the northwestward thereof, and the main portion of both lies about 70 feet above the Columbia river. In the Peabody claim the Nespelem river has a fall of 170 feet. The appellee brought a suit to set aside the patents on the ground of fraud, alleging that said lands were not mineral lands, that no mineral in paying quantities had ever been discovered thereon, and that the patents had been obtained upon false affidavits. The appellant denied the allegations of fraud and denied its knowledge of any fraud in the acquisition of the patents. Upon these issues the court below found for the appellee, and decreed that the patents be canceled.

The testimony is voluminous and conflicting upon the issues of fraud. We find it amply sufficient, however, to sustain the decree of the court below. Impartial and competent witnesses who were employed by the government to inspect the land of these placer claims, made careful investigation, and found no evidence of mineral sufficient to justify exploitation or development. The witnesses for the appellant were the officers and employes of that company. They testified to having found small quantities of flake and 'flour' gold, and in one instance a small piece of gold which they call a 'nugget,' but which in some mining districts would be called coarse gold, but the extremely scant quantities found, and the testimony adduced, only tend to confirm the conclusions reached by the witnesses for the government. There is doubtless in the land in controversy a small quantity of fine gold, such as may be found in all the lands along the Columbia river from its headwaters to the ocean. But the proof is convincing that no gold in paying quantities has been discovered on these claims. If the land included in these placer claims was mineral land, or contained mineral sufficient to justify mining, that fact was capable of demonstration. The suit to set aside the patents was brought in March, 1908. The testimony of the appellant was taken in July, 1909. In the interval between those dates there was ample time for the development and ascertainment of the mineral value of the land. For one month in that interval, the appellant did operate a sluice box, at which three men worked, but the quantity of gold produced was so inconsiderable as to indicate the futility of further operation. We have carefully considered the contention of the appellant that while the ground may not be operated at a profit by panning or sluicing, it might be...