South End Min. Co. v. Tinney

• Decision Date: 02 January 1894
• Docket Number: 1,373.
• Citation: 35 P. 89,22 Nev. 19
• Parties: SOUTH END MIN. CO. v. TINNEY et al.
• Court: Nevada Supreme Court

35 P. 89

22 Nev. 19

SOUTH END MIN. CO. v. TINNEY et al.

No. 1,373.

Supreme Court of Nevada

January 2, 1894

Appeal from district court, Lyon county; Richard Rising, Judge.

Ejectment by the South End Mining Company against Charles Tinney and others. There was judgment for plaintiff, and defendants appeal. Reversed.

The other facts fully appear in the following statement by BIGELOW, J.:

Action of ejectment to recover possession of a piece of mining ground, 1,100 feet in length by 400 feet in width, including the Comet ledge, to which the plaintiff alleges title in fee since March, 1888, and ouster by defendants in March, 1891 and to obtain an injunction perpetually enjoining the defendants from trespassing upon or removing ore from said mining ground. The answer denies the plaintiff's ownership, but admits that the plaintiff obtained a patent for the ground from the United States on March 29, 1888, and thereby acquired the legal title to the same, but sets up the following facts as avoiding the effects of this admission That in 1876 the plaintiff's grantors applied for a patent for the Comet mining claim, covering the ground in dispute, alleging it to have been located in 1872. That in 1878 the plaintiff abandoned its application for a patent abandoned the claim, ceased to possess or occupy the same and from that time up to 1888 failed to do the annual work or any work or labor thereon, by reason of which abandonment and failure the ground became subject to relocation. That on January 5, 1887, while the mine was in this condition, the defendants' grantors entered thereon, and located in accordance with the laws of the United States the Phoenix mining claim, covering a portion of the Comet claim, and defendants and their grantors have ever since remained in possession thereof, in strict compliance with the mining laws, and have expended in its development some $6,000. That on the 13th of April, 1888, they made a strike of ore therein, and thereupon the plaintiff "reorganized, and resumed the prosecution of its said application for patent, and without the knowledge of the defendants or their grantors, and without posting or publishing any other or further notice of application for patent, procured the register and receiver to sell said Comet mining claim to plaintiff, and to issue a certificate of the purchase thereof; and, in order to induce said register and receiver to accept payment and issue said certificate of purchase, and for the purpose of inducing the government of the United States to sell and patent said mining claim to plaintiff, procured and caused to be presented to and filed in the office of said register and receiver of the United States land office false and fraudulent affidavits and testimony, showing and tending to show that the annual labor and improvements had been made by plaintiff upon the said Comet mining claim and location between the date of location, to wit, 1872, and the date of such proof and certificate of purchase; said plaintiff well knowing that said affidavits and proofs were false and fraudulent." The answer also set up the statute of limitations founded upon an adverse possession of more than two years. Upon motion the court below granted judgment for the plaintiff upon the pleadings, holding that the answer failed to state facts constituting any defense to the action.knowledge, fraudulently obtained a patent to such claim. Held, that plaintiff was a trustee of the title to such claim for defendants.

R. M. Clark and E. D. Knight, for appellants.

W. E. F. Deal, for respondent.

BIGELOW J., (after stating the facts.)

The complaint in this action has a double aspect. It states--First, a cause of action in ejectment; and, secondly, an equitable cause of action to obtain an injunction to restrain certain trespasses threatened by the defendants. To these the answer attempts to plead, among other things, an equitable defense. Of the right of the defendants to set up an equitable defense to an action for the possession of lands there can be no question, and as to this defense the case is to be tried in the same manner and upon the same principles that would apply to an original bill in equity, brought for the same purpose. Pom. Rem. & Rem. Rights, § 87 et seq.; Bohall v. Dilla, 114 U.S. 47, 5 S.Ct. 782; Quinby v. Conlan, 104 U.S. 420; Estrada v. Murphy, 19 Cal. 248, 273; Hollinshead v. Simms, 51 Cal. 158; Treadway v. Wilder, 8 Nev. 93; Dutertree v. Shallenberger, 21 Nev. 507, 34 P. 449; Suessenbach v. Bank, 5 Dak. 477, 41 N.W. 662.

2. As judgment was rendered against the defendants upon the pleadings, the question is whether the answer states any defense, and I pass to a consideration of whether, in the light of equitable principles, it presents facts which entitle the defendants to defeat the action, founded, as it is, upon the legal title. It will be noticed that when the plaintiff ceased the prosecution of its application for a patent, and abandoned the mine, it had not paid for the ground, nor obtained a final certificate of purchase from the receiver of the land office. This failure prevents it from having obtained such vested rights as relieved it from the necessity of doing the annual assessment work, and distinguishes the case from Benson Mining, etc., Co. v. Alta Mining, etc., Co., 145 U.S.

428, 12 S.Ct. 877, and Deno v. Griffin, 20 Nev. 249, 20 P. 308, where it was held that by reason of completed patent applications and payment the requirement of doing the work no longer existed. Section 2324, Rev. St. U.S., provides that, until a patent issues, not less than $100 worth of labor shall be performed or improvements made upon a claim during each year, and upon failure to do so the claim shall be open to relocation in the same manner as though no location had ever been made. The courts have held a patent certificate issued upon final payment to be equivalent to a patent, but until then abandonment, or a failure to do the annual work, subjects the claim to relocation. Sickels, Min. Dec. 371, 384; Copp, Min. Lands, 255, 296; Ferguson v. Mining Co., 18 Copp, Landowner, 39. Then, by reason of this abandonment and forfeiture, the Comet became subject to relocation, and while in this condition the defendants and their grantors relocated a portion of it under the name of the "Phoenix". The answer shows that this relocation was made strictly in accordance with the mining laws, and there is no contention that it was not in all respects sufficient, nor that the defendants have not since fully complied with the laws in keeping up their title. Under these circumstances, up to the time the patent was issued to the plaintiff, they were vested with both the legal and equitable title to the ground as fully as it is possible to obtain such title by a location of a mine upon the mineral lands of the United States, upon which no patent has been obtained. As will be shown hereafter in another connection, this vested in them, even as against the United States, the full beneficial ownership of the claim, which could only be lost by a failure upon their part to comply with the mining laws. Suppose that prior to the issuance of this patent to the plaintiff it had brought this action, can there be any question that it would have been decided in favor of the defendants? There can be but one answer to this, and this shows that it is only by reason of the bare legal title, obtained by this patent, that it now has any standing, even in a court of law. Then the naked fact is that, while the defendants were the full beneficial owners of this property in accordance with the laws of the United States, without notice to them, and without their knowledge, the plaintiff has, by fraud and trickery practiced in the land office, obtained a patent therefor; and the question is whether this fraud has been so well perpetrated, and is so well intrenched in the law, that even a court of equity can afford the defendants no remedy. I am happy to say that in my judgment such is not the case, and, further, that any system of laws that would not afford a remedy under such circumstances would be unworthy a civilized people. The publication and posting of the notices which the mining law requires to be made upon applications for patent had been made long prior to the time that the defendants located the Phoenix claim. An adverse claim must be filed during the 60 days that these notices are given, and it was consequently impossible for them to file an adverse claim to the application. Their rights date from 10 years subsequent to this. Had their ownership dated from any time prior to the publication of the notices, they would, of course, have been required to adverse the application in the land office, or they would have lost all right in the ground. But the law does not require impossibilities, and the fact that they did not and could not do so cuts no figure in the case. Subsequent to this, the plaintiff lost all ownership in the ground, and the defendants obtained their title; and it is upon this situation that the case must be decided.

3. Having established, at least to my own satisfaction, that previous to the patent the mine was the property of the defendants. I proceed to consider whether by reason of that patent they have lost all right therein which can be protected by a court of equity. It is doubtful, although in my view quite immaterial, whether the plaintiff was guilty of any fraud upon the United States in the proceedings in the land office such as would justify the annulling and setting aside of the patent, in that the fact that they had done the annual labor is not one of the conditions of obtaining a patent; but this does not matter, and I shall not pause to consider it. Obtaining a patent to the defendants' mine was,...