Old Dominion Copper Min. & Smelting Co. v. Haverly

Decision Date25 May 1907
Docket NumberCivil 971
Citation11 Ariz. 241,90 P. 333
PartiesOLD DOMINION COPPER MINING AND SMELTING COMPANY, Plaintiff and Appellant, v. NELLIE HAVERLY, Defendant and Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the District Court of the Fifth Judicial District, in and for the County of Gila. Frederick S. Nave Judge. Reversed and remanded, with direction to enter judgment for plaintiff.

In 1883 one Andre Maurel went upon unoccupied public land of the United States in Gila county, Arizona, and in conformity with the laws then in force staked out and located a tract of one hundred and sixty acres of land, and filed in the public records of the county a notice that he had settled upon and improved the said premises, with a view of availing himself of the homestead or pre-emption laws of the United States. Some years thereafter a man named Tidwell built a house upon unoccupied public land immediately south of Maurel's premises, as designated by his corner stakes and boundary line, and a daughter of his named Nellie, who lived with him afterward married a man named Haverly, and continued to live in the same house. In 1900 one William J. Roberts located a lode mining claim south of Maurel's homestead premises including within its surface boundaries the ground on which the Haverly house was standing. In December, 1900, Roberts gave a quitclaim deed to Mrs. Haverly, releasing and quitclaiming the surface ground on which the house was standing, but especially reserving the minerals and rights of mining under said surface. In 1901 a government survey was extended over these lands, and at once thereafter Maurel entered the land as a homestead, and applied for patent. The survey established the south line of the legal subdivisions practically covered by the possessory right theretofore held by Maurel, some distance south of the line established by Maurel in 1883, and, when entry and application for patent was made, it was made by the legal subdivisions as established by the government survey, and included within its external boundaries the mining claim located by Roberts, on which were the house and premises occupied by the said Nellie Haverly. Nellie Haverly and the grantee of Roberts (who had sold the mining claim) contested the issuance of a patent to Maurel for that part of the land covered by the mining claim on the ground that the land was mineral, and not agricultural, and therefore could not be patented as a homestead, and that it had been, prior to the homestead entry, segregated from the public domain by the mineral location of Roberts. The officers in the local United States Land Office decided against the contestants, and on appeal to the Commissioner of the General Land Office their decision was affirmed, and, on further appeal to the Secretary of the Interior, the decision of the commissioner was affirmed, after which the final receiver's receipt for the homestead entry was, on July 7, 1904, given to Maurel, and a patent for the land was, on the second day of May, 1905, issued to him. On the thirteenth day of April, 1905, Maurel sold and conveyed to the appellant herein the south part of said homestead premises, and on the eighteenth day of April, 1905, the appellant brought an action in ejectment against Nellie Haverly and others for the possession of the Haverly house and premises. The other defendants disclaimed, and Nellie Haverly filed her answer May 31, 1905, in which she admitted the corporate character of the plaintiff, and denied its ownership of the premises in dispute, and further denied that she wrongfully withheld possession thereof from plaintiff, or was wrongfully or unlawfully in possession of the same. On December 19, 1905, when the case came on for trial, Nellie Haverly filed an amended answer. In paragraphs 6 to 14, inclusive, of the amended answer, she alleged the location of the premises by Maurel in 1883, his holding the same as a possessory right thereafter as hereinbefore stated, and that the premises thus held did not include the premises occupied by her; the location of the mining claim in 1899 by Roberts, and his quitclaim deed to her of the surface ground occupied by her house; the mineral character of the land, and Maurel's knowledge of such mineral character; the knowledge of the plaintiff of these facts at the time it became Maurel's grantee; the extension southward of the south line of Maurel's premises, in 1901 after the survey, to the south boundary line of the legal subdivisions in which such possessory right had been located, and the inclusion thereby within the boundary lines of the said homestead entry of the premises in dispute after their location as a mining claim by Roberts; the occupancy of the premises by her, and the value of the improvements thereon. On the same day this amended answer was filed the plaintiff filed and presented a motion to strike out paragraphs 6 to 14, inclusive, on the ground of the irrelevancy of the allegations contained in said paragraphs to any issue in the action, and also a general demurrer to them on the ground of their insufficiency to constitute a defense. The motion and the demurrer were on the same day argued, and the court denied the motion, and overruled the demurrer. Plaintiff then filed its motion for a continuance, supported by the affidavit of Maurel, grantor of the land, to the effect that the premises in dispute were included in the homestead patent issued by the United States to the affiant on May 2, 1905; that both Nellie Haverly, the defendant, and J. C. Evans, mentioned in the defendant's answer as the grantee of Roberts, had contested said homestead entry for said land in the United States Land Office; that in said contest Nellie Haverly relied upon the same claim set up by her in paragraph 9 of her answer filed in this case, and said Evans relied upon the mineral location referred to in defendant's answer, being the same land that was attempted to be located by Roberts, the grantor of said Evans and Haverly, under which location the defendant claims in this action her right and title to the premises in dispute; that in said contest case the officers of the land office rendered separate decisions based upon the evidence then and there produced, which decisions were adverse to the contestants, and which are conclusive upon the said Nellie Haverly as against her contention in said amended answer that the lands covered by said mineral claims are mineral lands, and that said decisions were afterward confirmed by the Commissioner of the General Land Office and by the Secretary of the Interior; that certified copies of the decisions of the land office are material as evidence in this case, and if plaintiff is given time to receive said copies, it will prepare and file a plea in bar to this portion of defendant's answer; that due diligence has been used to obtain said certified copies; that plaintiff was informed by wire that the certified copies were then being prepared in the United States Land Office; that the same could not be received in time to be used at the trial unless the case be continued for a term of days sufficient to enable plaintiff to receive them from the land office at Phoenix; and that such testimony cannot be obtained from any other source. The court overruled and denied the said motion for continuance upon the ground that under the holding of the supreme court of Arizona in Kansas City M.M. Co. v. Clay, 3 Ariz. 326, 29 P. 9, such decisions could not be within the jurisdiction of the land office, and that it seemed clear that the court would have to exclude this testimony, if offered, whereupon the case was immediately called for trial, a jury was impaneled, and upon their verdict a judgment was rendered for the defendant, a motion for a new trial was denied, and an appeal has been brought to this court.

George J. Stoneman, and Herring & Sorin, for Appellant.

The homestead patent issued by the United States to Andre Maurel conveyed the legal title, and is impregnable to collateral attack. Quinby v. Conlon, 104 U.S. 420, 26 L.Ed 800; Barden v. Northern Pac. R.R. Co., 154 U.S. 288, 14 S.Ct. 1030, 38 L.Ed. 992; Heath v. Wallace, 138 U.S. 573, 585, 11 S.Ct. 380, 34 L.Ed. 1063; French v. Fyan, 93 U.S. 169, 23 L.Ed. 812; Noble v. Union River Logging Co., 147 U.S. 167, 13 S.Ct. 271, 37 L.Ed. 123; Erhardt v. Hogaboon, 115 U.S. 67, 5 S.Ct. 1157, 29 L.Ed. 346; Steel v. St. L. Smelting & Refining Co., 106 U.S. 447, 1 S.Ct. 389, 27 L.Ed. 226; St. L. Smelting & Refining Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; United States v. Winona & St. P.R. Co., 67 F. 948-957, 15 C.C.A. 96.

The decisions of the land department upon matters of fact, such as the character of the land for which a patent is sought, are, in the absence of fraud, conclusive and binding upon the courts of the country. Shaw v. Kellogg, 170 U.S. 312, 18 S.Ct. 632, 42 L.Ed. 1050; Barden v. Northern Pac. R. Co., supra; Johnson v. Drew, 171 U.S. 93, 18 S.Ct. 800, 43 L.Ed. 88; Heath v. Wallace, supra; Catholic Bishop Nesqually v. Gibbon, 158 U.S. 155, 15 S.Ct. 779, 39 L.Ed. 931; Steel v. Refining Co., 106 U.S. 447, 1 S.Ct. 389, 27 L.Ed. 226; United States v. Budd, 144 U.S. 154, 12 S.Ct. 575, 36 L.Ed. 388; Lee v. Johnson, 116 U.S. 48, 6 S.Ct. 249, 29 L.Ed. 570; Vance v. Burbank, 101 U.S. 514, 25 L.Ed. 929; Moss v. Dowman, 176 U.S. 413, 20 S.Ct. 429, 44 L.Ed. 526; Carter v. Thomson, 65 F. 329; Gardner v. Bonestell, 180 U.S. 362, 21 S.Ct. 399, 45 L.Ed. 574; Quinby v. Conlan, supra; Buena Vista Petroleum Co. v. Tulare Oil & Min. Co., 67 F. 226; Scott v. Lockey Inv. Co., 60 F. 34; Black on Judgments, sec. 530; Jeffords v. Hine, 2 Ariz. 162, 11 P. 351; Ferry v. Street, 4 Utah, 521, 7 P. 712, 11 P. 571; Wiseman v. Eastman, 21 Wash. 163, 57 P. 398.

E. J. Edwards, for Appellee.

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2 cases
  • Bowen v. Chemi-Cote Perlite Corp.
    • United States
    • Arizona Court of Appeals
    • January 24, 1967
    ...entry.' (Emphasis added) Kansas City M. and M. Co. v. Clay, 3 Ariz. 326, 334, 29 P. 9, 12 (1892). In old Dominion Copper Mining & Smelting Co. v. Haverly, 11 Ariz. 241, 90 P. 333 (1907), our Supreme Court carefully differentiated between the exclusive jurisdiction of the Land Department, wh......
  • Bowen v. Chemi-Cote Perlite Corp.
    • United States
    • Arizona Supreme Court
    • October 20, 1967
    ...by the mining laws of Congress. Lily Mining Co. v. Kellogg, 27 Utah 111, 74 P. 518 (1903); see also, Old Dominion, etc., Smelting Co. v. Haverly, 11 Ariz. 241, 90 P. 333 (1907). The procedure for obtaining title to mineral land by way of a patent application is set forth in section 29, 30 U......

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