Richmond Mining Co of Nevada v. Rose

CourtUnited States Supreme Court
Citation5 S.Ct. 1055,29 L.Ed. 273,114 U.S. 576
Decision Date04 May 1885

Thos. Wren and Walter H. Smith, for plaintiff in error.

A. T. Britton, J. H. McGowen, A. B. Browne, and C. J. Hillyer, for defendants in error.


This is a writ of error to the supreme court of Nevada. The case presents a conflict of mining claims. The contest began in the state district court for the county of Eureka, Nevada, by defendants in error filing in that court, as plaintiffs, a petition against the Richmond Mining Company. To save repetition and confusion, the parties will be mentioned in this opinion as they are throughout the record, and as they actually were in the state courts, namely, Rose and others as plaintiffs, and the Richmond Mining Company as defendant. This petition or complaint was filed October 21, 1873. A demurrer was filed to it by the defendants November 1st, and an answer November 26th. The complaint alleged that plaintiffs were, and ever since January 20, 1872, had been, the owners of the UncleSam mining claim, ledge, lode, and deposit of mineral-bearing rock in the Eureka Mining District, county of Eureka, and state of Nevada, on the western slope of 'Ruby Hill.' A minute description of the claim is then given, with courses and distances with reference to the shaft. It is then alleged that the defendant, unjustly and adversely to plaintiffs, claims an estate in fee in said premises, and has filed in the United States land-office an application for a patent thereto, under the name of the 'St. George Ledge and Mine.' Plaintiffs, therefore, pray judgment that defendant be barred from all estate o interest in the premises, or any part thereof, or any right of possession. The answer of defendant, filed November 26, 1873, denies any claim to plaintiffs' location, except as it is covered by their claim, the St. George, which does cover a small part of it. As to so much of plaintiffs' claim as is covered by the St. George it asserts a superior right.

The next pleading is an amended answer of the defendant, which sets out the fact that since the commencement of the suit defendant has acquired title by patent from the United States to all that portion of the mining ground in controversy covered by the application for the patent for the St. George claim. This amended answer was filed April 20, 1881, which is seven years and a half after the first or original answer. In September, 1881, the case was tried before the court without a jury, and a judgment was rendered, from which plaintiffs appealed to the supreme court. That court modified the judgment of the court below materially in favor of plaintiffs, and to that judgment the Richmond Mining Company, the defendant below, prosecutes this writ of error. The judge of the district court of the state made a full finding of the facts in the case on which he rendered judgment, and on those facts the case was heard and decided in the supreme court of the state, and so it must be here. According to this finding the plaintiffs sunk their shaft on a mineral lode, staked and marked out their claim, gave due notice of it, and did the necessary work on it to perfect their right to the mine. In all this they were prior in point of time to the operations of defendant on their St. George claim. It may, therefore, be assumed that unless some of the objections to the claim of plaintiffs set up by defendant are valid, the judgment of the state court must stand. We shall examine these objections in such order as seems convenient.

1. The one much, if not chiefly, relied on is that the claim covers 800 lineal feet of the lode; when, there being only three locators, both by the act of congress and the local laws of that mining district, only 200 feet could be appropriated to each locator, and therefore this excess of 200 feet over the 600, which these three could locate, renders the whole claim void. The law, however, allowed to each locator who was the discoverer of the vein on which the location was made, 200 feet additional for his merit as discoverer. We hardly think it needs discussion to decide that the inclu- sion of a larger number of lineal feet than 200, renders a location, otherwise valid, totally void. This may occur, and often must occur, by accident of the surveyor, or other innocent mistake, where there exists no intention to claim more than the 200 feet. Must the whole claim be made void by this mistake, which may injure no one, and was without design to violate the law? We can see no reason, in justice or in the nature of the transaction, why the excess may not be rejected and the claim be held good for the remainder, unless it interferes with rights previously acquired. It appears by the facts found that 140 feet of the east end of plaintiffs' location is lost to them by the superior right of the Tip Top claim, leaving only 60 feet of excess; and this, if it were necessary, might be excluded by the government at the other or western end of the claim when it comes to issue the patent; which would leave plaintiffs only the 600 feet in one body, in regular form. This also would interfere with no prior rights, and would give plaintiffs the benefit of their claim to the extent of 200 feet for each locator. But, if it were necessary, we should agree with the supreme court of Nevada that Rose, one of the plaintiffs, was entitled to an additional 200 feet, as discoverer of the vein on which the claim is located. At the time this location was made there were many claims asserted for veins discovered in Ruby Hill, and most of the claimants believed that they were in each instance the discoverer of a new vein or lode. Rose entertained the same belief when he made his claim, and therefore asserted his right to 200 additional feet along this vein as discoverer. It was supposed some five or six years after this, and after Rose and his companions had spent their money and labor in developing their mine, that the whole Ruby Hill deposit was one zone or lode of great width, and it has been held in the Erueka Case, 4 Sawy. 302, that, though there were many small, detached fissures or veins, distinct from each other, composing this zone, it is, within the meaning of the act of congress concerning locations, to be treated as one lode or vein.

But Rose, or his vendor, Phillips, was the discoverer of this vein within the lode, and as such asserted in good faith his right to an addition 200 feet. We do not see any reason, within the spirit of the law, where the claim as discoverer injures no one at the time it is made, and it has been made in good faith in the reliance on the actual discovery of one of these constituent veins, and acted on for five years before knowledge of any mistake, it should not justify the claim for the 200 feet as discoverer.

2. The next objection to be noticed is that the court should have held that the patent obtained by defendant from the United States, which covered all that defendant claimed, should prevail, as it conveyed the legal title. This proposition goes to the merits of the case, and, if sould, covers the field of controversy. Its soundness depends on the statutes of the United States, and mainly on sections 6 and 7 of the act of congress of May 10, 1872, (17 St. 92,) which are embodied in the Revised Statutes in sections 2325 and 2326. By the first of these sections the applicant for a patent for a mining claim is required to file with his applicat on the evidence of his right to it, and the register is to cause a publication of the application to be made for 60 days, during which time any adverse claimant to any part of the location described in this application is required to give notice of contest by filing a protest in the land-office.

As no question is raised in this case that defendant filed his claim properly, and plaintiffs made due protest within the 60 days, and as the controversy arises out of the subsequent proceedings under the next section, that is copied here in full:

'Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days...

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