Sparrow v. Strong

• Decision Date: 01 December 1865
• Citation: 18 L.Ed. 49,70 U.S. 97,3 Wall. 97
• Parties: SPARROW v. STRONG
• Court: U.S. Supreme Court

70 U.S. 97

18 L.Ed. 49

3 Wall. 97

SPARROW v. STRONG.

December Term, 1865

SPARROW brought an action in the nature of an ejectment in the District Court for the first judicial district of Story County, Newada Territory, to recover an interest in a Mining Claim, a sort of interest very common in the argentiferous Territory just named.

The case was tried before a jury upon a considerable body of evidence, and a verdict having been given for the defendant, a judgment in the nature of a judgment in ejectment was regularly rendered by the court upon it.

Subsequently, a motion for new trial was made. A statement embodying all the evidence was drawn up and agreed to by counsel, and upon this statement and some affidavits tending to show surprise on the trial, and new evidence discovered after trial, the motion was argued before the District Court. It was overruled, and from the overruling order an appeal was taken, on the 15th November, 1862, to the Supreme Court of the Territory, under an act of the Territorial legislature authorizing such appeals.

On the 16th of March, 1863, the Supreme Court gave judgment in the cause as follows:

'On appeal from the District Court of the first judicial district in and for Story County.

'Now, on the day, this cause being called, and having been argued and submitted and taken under advisement by the court, and all and singular the law and the premises being by the court the seen and fully considered, the opinion of the court herein is delivered by Turner, C. J. (Mott, J., concurring), to the effect that the judgment below be affirmed.

'Wherefore it is now ordered, considered, and adjudged by the court here, that the judgment and decree of the District Court of the first judicial district in and for Story County, be and the same is affirmed with costs.'

From this judgment of the Supreme Court of Nevada a writ of error was taken here; the affidavit filed being the ordinary one, that 'the value of the property in dispute' exceeded $2000. The record did not show any bill of exceptions.

A rule of this court (the ninth), requires that when a writ of error shall be brought to it from any judgment or decree rendered thirty days before the commencement of the term—which this writ was—it shall be the duty of the plaintiff 'to docket the cause and file the record thereof with the clerk of this court, within the first six days of the term.' In the present case the writ of error was properly sued out, August 14, 1863, returnable to the next term of the court; and was regularly served. A citation was also served returnable to the same term. After the writ, citation, and record were filed and the cause docketed, a motion to dismiss the case was made and argued at the last term:

1. Because the record was not filed in time by the plaintiff in error.

2. Because the interest in controversy was not capable of a money valuation; and, therefore, not of the value, within the meaning of the statute, of one thousand dollars, the amount necessary to give jurisdiction to this court.¹

To understand the force or want of force of this second objection it is necessary to state, on the one hand, that the Territory of Nevada from which the case came, was formerly part of the province of Upper California, and belonged first to old Spain, afterwards to Mexico, and was acquired by the United States only in 1848, by treaty;² and that our government, as yet, had made no grants of its public lands there or of any rights in them. Of course no one could hold anything by patent or other formal grant from this government, in which, subject to prior private rights, everything still remained vested. On the other hand, it is to be stated that in the treaty referred to³ it is admitted that previously to our acquisition of it, the ceded territory had been settled to some extent by the authority of pre-existing governments, and that all rights thus existing are made inviolable. In fact, immense estates in California—a part of the acquired territory—rest on the titles derived from the 'former governments.'⁴

Congress had also established, in March, 1861, when Nevada, previously a part of Utah, was made a Territory by itself, a government for that Territory; having a legislature with the usual powers of these bodies in the Territories; and this legislature had acted on the development of the mines as a subject more or less within its competence.

Independently of this, however, a special kind of law—a sort of Common Law of the miners—the offspring of a nation's irrepressible march—lawless in some senses, yet clothed with dignity by a conception of the immense social results mingled with the fortunes of these bold investigators—had sprung up on our Pacific coast; and presented, in the value of a 'Mining Right,' a novel and peculiar question of jurisdiction for this court.⁵ at the last term and at this on the three several points as follows:

I. As to the time at which the record was filed and the cause docketed. The language of the ninth rule is imperative. It is a general rule and as obligatory while in force as a statute. The record, confessedly, was not filed within the first six days of December Term, 1863. It was therefore not filed as the rule exacts, and the writ should be dismissed on this ground.

II. As to the value of the subject in controversy. The affidavit, which is filed in the case, declares indeed that 'the property in dispute' is of the value of two thousand dollars; a sum sufficient, we admit, to give the jurisdiction. But the matter in dispute is a 'Mining Claim.' The land in which the mine exists belongs still to the General Government. It has never been surveyed nor brought into market. No pecuniary value can be attached to the possession by a claimant of anything of which the ownership is in another person. In this case the possession is one amounting in strict law to a trespass; at best, to a tenancy at will of the government. It may be terminated at any moment. Its value depends upon the course which the government may pursue in asserting or omitting to assert its right of ownership. Whatever the occupant may hope for or even expect; whatever the government may in the benignant course of its dealings see fit hereafter to do by such a person, it is plain that he has neither right, title, interest, claim, nor demand in or to the property in suit. Such an estate, or no-estate as it more truly is, cannot be estimated in the sense which the law requires to give jurisdiction. Is not Lownsdale v. Parish,⁶ in this court much in point? There the matter in dispute was a piece of real estate in Oregon Territory, which Territory then happened to be claimed by the United States and by Great Britain, at once; the subjects of the two governments, occupying the region only by virtue of a treaty between the two nations. How the title might ultimately be settled and to which government the land might finally pass, was, of course, a matter resting in speculation; dependent upon what the two governments might or might not do; just as here what the one government may or may not do. This court there held that the title to the subject of controversy was not capable of estimate in the sense required by law to give jurisdiction to this court.

III. On the last point—the point on which the case stands over—'Is the judgment a final one?' However the matter may be disguised, or the mind misled by the technical words, 'judgment,' 'decree,' &c., and the old-fashioned formula of 'seen,' 'fully considered,' &c., used in the record, it is obvious that the judgment, or decree which has been affirmed, is but the judgment and decree ordering a new trial; nothing else. In other words, that the terms 'judgment,' and 'decree,' are, in Nevada Territory, and under its peculiar system of law—which makes the granting or refusal of a new trial the subject of review in an appellate court applied to the affirmance of the order of the District Court overruling the motion for a new trial. It is not worth while to be so lost in the technique of the law—in the verbality of clerical 'entries'—as to forget 'that words are the daughters of earth and things the sons of heaven.'

It seems that there was no 'assignment of errors.' The judgment was probably affirmed for want of one. But as the record stands, this court rests in ignorance of the ground on which the judgment proceeded; and the case stands here simply as a writ of error to bring before this court for revision the decision of the Supreme Court of Nevada, upon a motion for a new trial. Need we say that this tribunal will not review decisions on points resting purely in the discretion of the court below? It was but at the last term⁷ that this court declared, with what seemed to be a special emphasis, and a warning not to bring such cases here, that 'its decision has always been that the granting or refusal of a new trial is a matter it cannot review.'

Messrs. O'Connor and Billings, contra.

The CHIEF JUSTICE now delivered the opinion of the court, on all three of the points.

The first ground taken in favor of dismissing the writ of error, to wit, that the record was not filed in time by the plaintiff in error, is untenable. The writ was regularly sued out on the...