Seymour v. Fisher

• Decision Date: 21 May 1891
• Citation: Seymour v. Fisher, 16 Colo. 188, 27 P. 240 (Colo. 1891)
• Parties: SEYMOUR v. FISHER et al. FISHER et al. v. SEYMOUR.
• Court: Colorado Supreme Court

27 P. 240

16 Colo. 188

SEYMOUR v. FISHER et al.

FISHER et al. v. SEYMOUR.

Supreme Court of Colorado

May 21, 1891

Cross-appeals from district court, Lake county; L. M. GODDARD, Judge.

Action in chancery by Jennie A. Fisher and Nicholas Finn, trustee against G. M. Sevmour, to declare a trust in favor of plaintiffs in a certain mining claim patented by defendant.Decree granting the relief sought in part, and denying it in part.Both parties appeal.Reversed.

Both of these appeals are from the same decree in the court below.By stipulation they are considered and determined together.In 1880, Mrs. Fisher and Nicholas Finn, trustee, etc., were the owners of the 'American Flag,' a mining location near Leadville.Messrs. Bloss, Ilginfritz, and Herbert were likewise owners of a conflicting mining location known as the 'Little Tiger;' Seymour and Mrs. Fisher were co-owners with other parties in the 'General Shields,' a mine adjacent to the foregoing properties.Some time during the summer of 1880 the latter parties met and conversed freely with reference to the 'General Shields,' having some talk also about the 'American Flag,' and in correspondence between them afterwards when Mrs. Fisher had returned to Tennessee, the 'American Flag' was mentioned.Mrs. Fisher asserts that she made Seymour her agent to sell this claim.Seymour denies such agency.In October, 1880, Bloss, Ilginfritz, and Herbert made a contract in writing with Seymour whereby he was to patent the 'Little Tiger' in his own name, and then deed one-half of the property to them.In pursuance of this contract, an amended location certificate of the 'Little Tiger' was filed, changing the name to the 'Tiger,' and surveying in a large additional portion of the 'American Flag.'Patent was obtained without the knowledge of Mrs. Fisher or Finn; and in 1881they brought suit against Seymour for the purpose of having him declared a trustee holding title to that portion of the 'American Flag' included in the 'Tiger' patent for them.From the decree in their favor as to half of the property Seymour appealed; from the decree against them as to the other half of the property, viz., that deeded to Bloss, Ilginfritz, and Herbert, in pursuance of Seymour's contract before patenting, they appealed.The remaining essential facts sufficiently appear in the opinion.

Taylor & Ashton, for plaintiff.

S.D. Walling and Rucker & Ewing, for defendant.

HELM C.J., ( after stating the facts as above.)

The complaint on which this cause was tried is framed upon the theory of a constructive trust.Relief is sought on the ground that Seymour, who was defendant below, holds the legal title, conveyed to him by patent, to a large part of the 'Tiger' lode, in trust for the benefit of plaintiffs.The leading question to be considered is, did the failure of plaintiffs to institute adverse proceedings in the land-office on behalf of the 'American Flag' location, and to contest by suit defendant's claim to a patent of the 'Tiger' lode, operate to waive or forfeit their prior rights in the conflicting ground, if such rights they had?

1.The first contention of plaintiffs' counsel is that, regardless of the statutes providing for adverse contests and suits, and notwithstanding the failure of his clients to proceed thereunder the single conceded fact of a valid and subsisting location of the 'American Flag' during the 'Tiger' patent proceedings is decisive of the present controversy.He asserts that the territory embraced in the 'American Flag' location was so segregated from the public domain as to be absolutely protected from patent by any other party, though plaintiffs made no effort to invoke the benefit of the statutes mentioned.No proposition connected with the disposal of mineral land is more conclusively established than that such land, when held under a valid mining location, is no longer subject to exploration and entry.The locator thereof is entitled to the present exclusive possession and use as against all the world, including even the United States, which prior to patent retains the legal ownership.Gwillim v. Donnellan, 115 U.S. 45, 5 S.Ct. 1110.A stranger going thereon for the purpose of discovering veins, of cutting and removing timber, or of otherwise interfering with the locator's possession and use, is a trespasser.The interest acquired by compliance with the mining statutes is, until a failure to perform annual labor, or until abandonment in some other way, for most purposes, as valuable and effective as if the title had actually passed by patent.Such interest, in this state, is subject to taxation, and is liable to levy and sale under execution in satisfaction of the owners' debts.It has been designated by the supreme court of the United States a 'grant' of the present exclusive right to possession.Gwillim v. Donnellan, supra.The foregoing legal propositions lend support to counsel's contention.His able argument predicated thereon would possess great force were it not for the statutes relating to adverse proceedings.The different laws providing for the locating and patenting of mines are to be considered together, and the enactments giving the miner certain exclusive rights to mineral claims which he has located in compliance therewith must be construed in connection with the adverse provisions alluded to.It is a matter of such grave importance as to become the settled policy of the general government that all controversies relating to conflicting mining claims be, so far as possible, adjudicated prior to patent.The statutes providing for adverse proceedings in the land-office and adverse suits in the courts conclusively recognize this importance and express this policy.They do not deprive the locator of his interest, nor do they necessarily lessen its completeness and value.They simply point out a particular method by which he is to assert his priority and maintain his advantage.The government, being the paramount owner of the soil, gives the prior claimant fair and adequate notice that he must assert his interest in a certain prescribed manner.If he does not avail himself of the proceedings thus provided for him, the superior advantages obtained by virtue of his priority of discovery and compliance with the location statutes may be lost.Failing to invoke the statutory remedy given, and permitting his adversary to secure a patent covering his location of a part thereof, he will be treated in law as having voluntarily waived his prior and superior rights.Lee v. Stahl, 9 Colo. 208, 11 P. 77.The existence of a valid and subsisting location of the 'American Flag' at the time of the patenting of the 'Tiger' lode, even if the priority of such location be conceded, did not ipso facto protect plaintiffs.The principal purpose of adverse proceedings is to determine just such controversies as arise upon conflicting claims of this kind.Plaintiffs' prior valid location, if such they had, did not exonerate them from the duty of invoking the remedy given by the adverse statutes.

2.The foregoing views proceed upon the theory that all requirements of patent statutes relating to notices have been fairly complied with; and where, therefore, if the complaining party has failed to avail himself of the statutory adverse provisions, the fault is chargeable to himself, or at least cannot be imputed to the patentee.But if, by reason of the fraudulent conduct of the patentee, the would-be contestor is kept in ignorance of the pendency of patent proceedings, and is thus prevented from availing himself of the statutory remedy, a court of equity may, in our judgment, interfere.Let it be carefully borne in mind that in this branch of the discussion we do not consider a case where there has been adverse proceedings and a contest before the land department we refer to a case where such contest and hearing have been prevented by the fraud of the patentee, whereby the complaining party, without fault on his part, is kept in ignorance of the application for title till the patent issues.Great consideration is given to the decisions of the land department in all matters there passed upon antecedent to patent, and the necessity for instituting contest proceedings has been strenuously insisted upon.But we have authority fairly supporting the foregoing view concerning judicial cognizance of injuries arising from such frauds as the one mentioned.'In those cases[cases where conflicting claims between private parties involve the effect to be given to the determination of officers of the land department with reference to the public domain] it has indeed been held, as claimed, that if the executive officer has made a mistake of law in his administration, if he has exercised power without authority of law, if his determination has been procured by the fraudulent practices of one party upon the officer or upon the opposite party, or if the officer has himself fraudulently decided in favor of one and against the other, a court of justice will give effect to the rights of the parties as between themselves, notwithstanding the errors and the frauds alleged and shown.The principle is 'that the decision of the officers of the land department, made within the scope of their authority, upon questions of this kind, is in general conclusive everywhere, except when reconsidered by way of appeal within that department; and that as to the facts on which their decision is based, in the absence of fraud or mistake, that decision is conclusive even in courts of justice when the title afterwards comes in question; but that in this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions.'' Craig v. Leitensdorfer, 123...