Silver Bow Mining & Milling Co. v. Clarke

• Decision Date: 07 January 1885
• Court: Montana Supreme Court
• Parties: SILVER BOW MINING & MILLING CO. v. CLARKE and others.

5 Mont. 378

SILVER BOW MINING & MILLING CO.

v.CLARKE and others.

Supreme Court of the Territory of Montana.

Filed January 7, 1885.

Appeal from Silver Bow county.

W. W. Dixon, for respondent.

Knowles & Forbis, for appellants.

WADE, C. J.

This is an action in the nature of ejectment, in which the respondent seeks to recover the possession of a certain mining-claim location, known as the “Pawnbroker Lode Claim,” situate in Summit Valley mining district, Silver Bow county, claimed by appellants as a part of the Butte town-site. There was but little controversy at the trial as to the facts, which are, in substance, as follows: That the Pawnbroker mining claim was located and claimed on the sixteenth day of November, 1875, on what was then the public and unappropriated mineral lands of the United States; that at the time of such location and claim the grantors of plaintiff had discovered, within the limits of said claim, a vein or lode of quartz, in place, containing silver and other valuable deposits, with at least one well-defined wall; that at the time of such location the same was distinctly marked on the ground, so that its boundaries could be readily traced, and a notice of the claim posted on the ground; and that within 20 days after said discovery and location a declaratory statement, in due form of law, was filed and recorded in the proper county, and a duplicate thereof posted at discovery shaft on said claim at the time of said location; that said location and claim were made under the act of congress of May 10, 1872, and the laws of the territory; that there was not, at the time of said location and claim, or since, any local rules, laws, customs, or regulations of miners in force in Summit Valley mining district, and that the location and claim of the Pawnbroker claim was in all respects regular, and according to the laws of the United States and the territory of Montana, and everything necessary was done to make the same a valid mining location and claim at that time; that the locators and their grantees, as to work on said claim, and in all other respects, complied with the law, so as to preserve whatever title to said claim was acquired by said location; that in the month of May, 1878, an application, in due form of law, for a patent was made for said Pawnbroker mining claim, under and by virtue of the location thereof made November 16, 1875; that notice of said application was given as provided by law; that no protest or adverse claim was made thereto; that upon said application a patent dated January 15, 1880, was issued for said Pawnbroker mining claim, which is the patent mentioned in the answer and replication, and under which respondent claims; that said patent contained a clause “excepting and excluding from said patent all town-site property rights upon the surface, and all houses, buildings, lots, blocks, streets, alleys, or other municipal improvements on the surface of said Pawnbroker mining claim;” that the proceedings upon the application for the patent for the Butte town-site mentioned in the answer and replication were in due form of law, and that no protest against or adverse claim to any part of the Pawnbroker claim, which was embraced in said town-site patent, was made against or to said application by any one claiming title to the Pawnbroker claim; that the defendants have and own all the right and title which was acquired by law, or could be legally conveyed by the probate judge, under the patent to the probate judge for the Butte town-site, dated September 26, 1877, in and to all those portions of the surface ground of the Pawnbroker mining claim which are embraced within the limits of said town-site patent; that said patent contains in it a provision as follows, to-wit: “No title shall be hereby acquired to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws of congress;” that the Pawnbroker claim, described in the complaint herein, was at the time of the issuance and date of said town-site patent, and before and since, a valid mining claim and possession, held under existing laws of congress,-to-wit, under the act of May 10, 1872,-and the laws of Montana territory, by the grantors and predecessors in interest of the plaintiffs.

Under this state of facts, was any title or right of possession to the Pawnbroker mining claim, or any part thereof, conveyed or passed by the town-site patent, or by any deed made by the probate judge in pursuance thereof? What are the rights of the respective parties to the land and premises in dispute? These rights must be determined by an interpretation of the acts of congress in relation to the acquisition of title to the public mineral lands, and to town-sites situate on the public lands, which statutes are as follows:

Rev. St. U. S. § 2386: “When mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof; but nothing contained in this section shall be so construed as to recognize any color of title in possessors for mining purposes as against the United States.”

Section 2387 provides for the entry of town-sites on the public lands in trust for the use of the occupants thereof.

Sec. 2392: “No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession, held under existing laws.”

Sec. 2318: “In all cases, lands valuable for mineral shall be reserved from sale, except as otherwise expressly directed by law.”

Sec. 2319: “All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found, to occupation and purchase, by citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs and regulations of miners in the several mining districts, so far as the same are applicable, and not inconsistent with the laws of the United States.”

Section 2320 regulates the size of mining claims, and provides, among other things, that no claim shall extend more than 300 feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than 25 feet on each side of the middle of the vein at the surface. Section 2322 provides that the locators of all mining locations hereafter made on any mineral vein, lode, or ledge, “shall have the exclusive right of possession and enjoyment of all surface ground included within the lines of their locations.” Section 2324 regulates the manner of locating, recording, marking the boundaries of the claim, and the amount of work necessary to hold possession of the claim. Section 2325 points out how a patent to a mining claim may be obtained; and section 2326 provides for filing an adverse claim, and the proceedings to determine the right of possession to the ground in dispute.

These are parts of our system of pre-emption laws providing for the sale and acquisition of title to the public mineral lands and other lands belonging to the United States, and, as they concern the same subject-matter, they are in pari materia, and must be construed together, and effect must be given to each section and provision of the law so far as possible.

Prior to 1866 it had been the settled policy of the government, in disposing of the public lands, to reserve the mines and mineral lands for the use of the United States. Prior to that date the uniform reservation of mineral lands from survey, from sale, from pre-emption, and from all grants, whether for railroads, public buildings, or other purposes, fixed and settled the policy of the government in relation to such lands. Mining Co. v. Consolidated Min. Co. 102 U. S. 167;U. S. v. Gratiot, 14 Pet. 526;Morton v. Nebraska, 21 Wall. 660. Prior to that date it was impossible for an individual to acquire title to the mineral lands. Though the government had, in various ways, recognized the possessory rights of miners on the public mineral lands, and their rules and regulations in relation thereto, yet it was always careful not to part with its title. The act of 1865, § 2386, above quoted, was a recognition of both the possessory rights of the miners on the public mineral lands, and the authority and validity of the local rules and regulations in relation thereto, while yet the government had no intention of parting with its title to such lands. This statute must be construed with the others bearing upon the same subject; but in arriving at its true meaning, and to give to it its proper effect, account must be taken of the object sought to be attained by its passage, and the situation, conditions, and circumstances surrounding the subject-matter at the time. If this statute was designed, as it seems to have been, to protect the mere possessory rights of miners on the public mineral lands, as those rights were defined by local authority, while the government had no intention of parting with its title, and while the miners were technically trespassers upon the public domain, under other conditions and surroundings, and in the presence of other rights and interests that would arise where the government had provided by law for the absolute sale and disposal of the mineral lands, and had parted with its title in pursuance thereof, the statute might have no application. It did not contemplate a condition of things where the government had granted to the miner the right of possession, and the right to purchase the mineral lands he occupied in pursuance of law. But, though the government had made no sale, and the miner no purchase, and held his mineral vein by...