Rosenthal v. Ives

• Decision Date: 07 February 1887
• Citation: 12 P. 904,2 Idaho 265
• Parties: ROSENTHAL ET AL. v. IVES ET AL. And LANSDALE ET AL.; v. IVES ET AL
• Court: Idaho Supreme Court

12 P. 904

2 Idaho 265

ROSENTHAL ET AL. v. IVES ET AL. And LANSDALE ET AL.; v. IVES ET AL

Supreme Court of Idaho

February 7, 1887

MINING CLAIM-ADVERSE CLAIM-RIGHT TO PATENT-SHOWING TO BE MADE.-In an action brought under section 2326 of the Revised Statutes of the United States, and the act of 1887, amendatory thereof in support of an adverse mining claim, it is not enough that one claimant should show a superior right or title, as against the other, but one must show a clear right, as against the government, to a patent from the United States to the claim in dispute or some part thereof, before either party can prevail in the action.

ALIENS CANNOT LOCATE CLAIM.-Under the acts of Congress only citizens of the United States and persons who have declared their intention to become such can acquire any right by location upon mineral lands of the public domain.

FINDINGS-MUST ALLEGE AND PROVE CITIZENSHIP.-In an action between claimants to determine the right of possession to a mining claim the plaintiffs must allege and show all the qualifications necessary to entitle them to purchase, among which must be included an allegation that the plaintiffs are citizens, or have declared their intention to become such, and when the action is tried to the court alone all these facts must be found, whether admitted by the pleadings or not.

SAME.-As there was an omission to find in these cases that plaintiffs were citizens, or had declared their intention to become such, held, that the judgment should be reversed and the causes remanded, with direction to the court below to find on this question from the evidence taken at the trial, if sufficient, and if not, upon such evidence as may be adduced and proceed to render judgment accordingly.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Reversed and remanded, with directions.

Charles W. O'Neill, for Appellants.

The consolidation and trial of the two causes as one case was unauthorized by law and improper, even with the consent of parties. (Code, sec. 713; Wallace v. Eldredge, 27 Cal. 498.) Actions brought pursuant to section 2326 of the Revised Statutes of the United States are virtually applications for a patent for the ground in controversy; and it is incumbent upon a party to such action to show every fact essential to the initiation and perfection of any right claimed by him under the act of May 10, 1872, and to entitle him to the possession of the ground, not only against the defendant, but against the general government. (Golden Fleece etc. Min. Co. v. Cable Consol. etc. Min. Co., 12 Nev. 312; McGinnis v. Egbert, 8 Colo. 41, 5 P. 652; Mining Co. v. Brown, 10 Saw. 243, 21 F. 167; Gelcich v. Moriarty, 53 Cal. 217; Jackson v Roby, 109 U.S. 440, 3 S.Ct. 301; Gwillim v. Donnellan, 115 U.S. 45, 5 S.Ct. 1110; Steel v. Mining Co., 18 Nev. 80, 1 P. 448.) The performance of annual labor is necessary to hold a placer claim. (Carney v. Mining Co., 65 Cal. 40, 2 P. 734.) An alien can neither locate, possess, nor acquire title under patent to the mineral land of the United States. (Tibbitts v. Ah Tong, 4 Mont. 536, 2 P. 759; Chapman v. Toy Long, 4 Saw. 28, Fed. Cas. No. 2610; Golden Flcece etc. Min. Co. v. Cable Consol. etc. Min. Co., 12 Nev. 312.) The possessory right to the mineral lands of the United States may be acquired, in the absence of local rules, by a bare compliance with the act of Congress. (Golden Fleece etc. Min. Co. v. Cable Consol. etc. Min. Co., 12 Nev. 312.)

William H. Claggett, for Respondents.

The consolidation of the two causes was proper. (Code Civ. Proc., sec. 713; Cariaga v. Dryden, 29 Cal. 308; Code Civ. Proc., sec. 196.) A finding is not necessary on any fact that is expressly admitted, or not denied in the pleadings. (Swift v. Muygridge, 8 Cal. 445; Fox v. Fox, 25 Cal. 588; Taylor v. Palmer, 31 Cal. 256.) The laws of the United States do not require $ 100 to be annually expended upon a placer claim. (U. S. Rev. Stats., sec. 2324.) Forfeiture and a relocation thereunder must be specially pleaded. (Morenhaut v. Wilson, 52 Cal. 268; Water Co. v. Mooney, 12 Cal. 534; Richardson v. McNulty, Blanch. & W. Lead. Cas. 225, notes; Pralus v. Mining Co., 35 Cal. 35.) The law of 1866 was intended to extend to the customary law of the miners the legal protection of the government. (Broder v. Water Co., 101 U.S. 276; Basey v. Gallagher, 20 Wall. 683; Jennison v. Kirk, 98 U.S. 456, 457.)

BRODERICK J. Hays, C. J., and Buck, J., concurring.

OPINION

BRODERICK, J.

These actions were commenced in support of the adverse claims made by the plaintiffs against the issuance of patents to Ives and Silverthorn to the Idaho Bar claim, in Shoshone county, Idaho. The two cases were, by consent of the parties, consolidated, and tried by the court without a jury. The court found and adjudged that Ives and Silverthorn were, as against the plaintiffs in each of said cases, the owners of, and entitled to the possession of, a certain portion of the claim, which was described in the judgment; that the plaintiffs in the Lansdale case were the owners of, and entitled to the possession, as against the defendants, of that portion of the Idaho Bar claim more than eighty rods distant from the west line thereof, which conflicted with the lower half of the Murray location; that the plaintiffs in the Rosenthal case were the owners of, and entitled to the possession, as against the defendants, of all the area in conflict with the upper half of the Murray location; that Ives and Silverthorn be enjoined and restrained from asserting or claiming any right, title, interest, or estate in any of the two parcels herein adjudged to be the property of the plaintiffs in the consolidated cases, respectively, and from prosecuting their application for a United States patent to any portion of said parcels of land.

From this judgment Ives and Silverthorn appeal to this court, and assign as error: 1. That the consolidation and trial of the two cases as one was unauthorized by law, and improper, even with the consent of the parties; 2. That the findings do not show that Murray (one of the original locators) was a citizen of the United States, or had declared his intention to become such, nor that the plaintiffs in either of said cases were citizens of the United States, or had declared their intention to become such; 3. That the findings fail to show that the plaintiffs in either of said cases, or their predecessors in interest, ever complied with the requirements of section 2324 of the Revised Statutes, and the several acts amendatory thereof, as to performing the annual labor required by those acts, during A. D. 1884; 4. The finding that there was a mining custom in force, at the date of the Ives location, limiting all placer claims in that locality to eighty rods in length to each locator; that no exceptions to this custom were allowed by the custom itself; that the Ives location was made in violation of this custom, and was void as to the excess in length beyond eighty rods from its beginning point.

We will notice these questions in their order.

The consolidation of the cases below for the purposes of the trial, by the consent of the parties, is certainly no ground for reversal. The defendants were the same in both cases, and the questions involved the same. The consolidation and trial as one case saved costs to all the parties, and, if the order was error, it was without prejudice. At least, there has been no claim here that any prejudice resulted therefrom. In such a case a party should not be heard to complain here of that to which he assented in the court below.

The second question, as to the omission to find that Murray or the plaintiffs in either of the cases were...