Southern Development Co. v. Endersen

• Decision Date: 30 August 1912
• Docket Number: 1,080.
• Citation: 200 F. 272
• Parties: SOUTHERN DEVELOPMENT CO. v. ENDERSEN.
• Court: U.S. District Court — District of Nevada

200 F. 272

SOUTHERN DEVELOPMENT CO. v. ENDERSEN.

No. 1,080.

United States District Court, D. Nevada.

August 30, 1912

Richard S. Miner, of Goldfield, Nev., and Lewers & Henderson, of Reno, Nev., for complainant.

Frank Hall, of Washington, D.C., and Mack & Green, of Reno, Nev for defendant.

FARRINGTON District Judge.

Complainant seeks to quiet its title to 320 acres of land in Esmeralda county, Nev. As the suit is heard on the bill and answer, the answer must be taken to be true in all respects.

It appears that the government of the United States, under an act of Congress approved June 16, 1880 (chapter 245, 21 Stat 287), granted to the state of Nevada 2,000,000 acres of land to be selected by the state authorities, and, when so selected, to be certified to the state by the Commissioner of the General Land Office, and approved by the Secretary of the Interior. Sections 2 and 3 of said act read as follows:

'Sec. 2. The lands herein granted shall be selected by the state authorities of said state from any unappropriated, nonmineral, public land in said state, in quantities not less than the smallest legal subdivision; and when selected in conformity with the terms of this act the same shall be duly certified to said state by the Commissioner of the General Land Office and approved by the Secretary of the Interior.

'Sec. 3. The lands herein granted shall be disposed of under such laws, rules, and regulations as may be prescribed by the Legislature of the state of Nevada: Provided, that the proceeds of the sale thereof shall be dedicated to the same purposes as heretofore provided in the grant of the sixteenth and thirty-sixth sections made to said state.'

Nearly seven years before, the Legislature had passed an act approved March 5, 1873 (St. 1873, c. 64), providing for the selection and sale of lands which had been or thereafter might be granted to the state by the general government. The land in question was and is a part of the 2,000,000-acre grant. It was duly selected and listed by the Nevada state land register to the Commissioner of the General Land Office. Thereafter the Commissioner, with the approval of the Secretary of the Interior, approved and certified the selections and listing to the state of Nevada as nonmineral land. F. A. Magee, Helen J. Pomeroy, and G. W. Baker thereupon made application and payment for the land, and took such steps as were necessary under the Nevada statute. On the 30th day of March, 1883, patents were issued to them by the state of Nevada. The method provided by law for transferring title of the government to the state and for the acquisition of the state's title by the patentee were strictly pursued. Complainant has acquired by deed all the rights of patentees.

It is averred in the answer that the lands in question now are, and always have been, mineral lands; that long prior to 1880 they were embraced within a well-known and regularly established mining district; that they were conveyed by the Land Department of the United States to the state of Nevada without any examination or exploration by said department or its officers to determine whether they were mineral or nonmineral; that the appearance and geological formation of said lands clearly disclose their mineral character, all of which was well known to complainant before the conveyances were executed; that miners and prospectors were working in and upon this and adjacent lands, and had disclosed valuable mineral deposits thereon at the time of said conveyances. In 1908 and 1909 defendant and his grantors entered said lands, and made thereon seven mining locations. In making these locations the federal and state statutes were strictly followed. No question is raised as to the regularity of the locations except, in this: that they were laid on land selected, listed, certified, patented, and conveyed as above stated. Defendant does not attempt to connect himself with any title or claim prior to the locations in 1908.

Defendant contends that title did not pass to any mineral land under the patents, whether the mineral was known or unknown at the time of selection; that there was no authority in the departmental officers of the government to pass any title to mineral land; that mineral land was not within the terms of the grant to the state, or within the terms of any grant from the state to complainant's grantees, and was not subject to any claim or appropriation, or open to purchase except under the mining acts of Congress. The government conveys its title to public lands in various ways. The most usual method is by patent, following a procedure calculated to thoroughly inform the Land Department as to the character of the land, the identity of the grantee, and his right under the law to purchase. In other cases, as in the one at hand, where no provision is made for patent, and the lands are not identified in the grant, selection is necessary.

The approval and certification to the grantee of a list of land so selected is the final act of transfer. In other cases, for example, the grant of the sixteenth and thirty-sixth sections of each township to the several states for educational purposes, there is no provision for either listing or patent. Such instruments are deemed unnecessary because Congress in the grant itself has identified the land conveyed with sufficient precision. Section 2449 of the Revised Statutes of the United States (vol. 6, Fed. Stats. Ann. 515 (U.S. Comp. St. 1901, p. 1516)) gives to a certified list, when it embraces land of the character contemplated by the act of Congress and intended to be conveyed thereby, the force and effect of a patent. This statute reads as follows:

'Where lands have been or may hereafter be granted by any law of Congress to any one of the several states and territories, and where such law does not convey the fee-simple title of the lands, or require patents to be issued therefor, the list of such lands which have been or may hereafter be certified by the Commissioner of the General Land Office, under the seal of his office either as originals or copies of the originals or records shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such act of Congress, and intended to be granted thereby; but where lands embraced in such lists are not of the character embraced by such acts of Congress, and are not intended to be granted thereby, the lists, so far as these lands are concerned, shall be perfectly null and void and no right, title, claim, or interest shall be conveyed thereby.'

From this statute the defendant concludes 'that it was never intended that these listings should be conclusive as to the character of the land listed,' and they convey no title to mineral land, whether the mineral was known or unknown at the time of selection.

What, then, was the effect of the certified lists to the state of Nevada under the grant of June 15, 1880? If the listings are never conclusive as to the character of the land listed, obviously the mineral or nonmineral character of the land is always an open question. A title which to-day is valuable because the land is apparently nonmineral to-morrow may become utterly void and worthless by reason of the discovery of mineral. Methods of extraction and reduction may be devised of such cheapness and efficiency as to render mining highly profitable on lands which, at the date of selection and listing, had and could have had no value for mineral purposes. The courts have never yielded to the argument that Congress intended to provide for titles so elusive.

In Shaw v. Kellogg, 170 U.S. 312, 332, 18 Sup.Ct. 632, 641 (42 L.Ed. 1050), there was no patent. The transfer of title was evidenced by departmental approval of survey, field notes, and plat, and the fact that the land had been segregated from the public domain and had become private property was noted on the maps in the Land Department, and reported to Congress. Mr. Justice Brewer said:

'We say 'lands then known to contain mineral,' for it cannot be that Congress intended that the grant should be rendered nugatory by any future discoveries of mineral. * * * It would be an insult to the good faith of Congress to suppose that it did not intend that the title when it passed should pass absolutely, and not contingently upon subsequent discoveries. This is in accord with the general rule as to the transfer of title to the public lands of the United States. In cases of homestead, pre-emption or townsite entries, the law excludes mineral lands, but it was never doubted that the title once passed was free from all conditions of subsequent discoveries of mineral.'

To the same effect, see Deffeback v. Hawke, 115 U.S. 392, 404, 6 Sup.Ct. 95, 29 L.Ed. 423; Roberts v. Southern Pacific Co., et al. (C.C.) 186 F. 934. In the last two cases there was an issue as to the validity of a United States patent in which occurred a reservation excluding all mineral lands from its operation, and a similar reservation was attempted in Shaw v. Kellogg, supra, but in each case the court held that the law authorized no such reservation, and that the Land Department could not in such a manner avoid its duty to determine the character of the land.

The following quotation is taken from Roberts v. Southern Pacific Co. et al., supra:

'The patent was the last step in the proceeding provided for by Congress, and was designed, as the statute expressly declares, to convey the government title to the grantee. Of what avail would such an instrument, intended for the peace and security of the holder, be if the antecedent facts upon which it is required to be based are open to subsequent inquiry and contestation by strangers to the title? As

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