Talbott v. King

• Decision Date: 07 January 1886
• Citation: 6 Mont. 76
• Parties: TALBOTT and others v. KING and others. (Appeal of GWIN and others.) (Appeal of BAKER.) (Appeal of MORRIS.)
• Court: Montana Supreme Court

6 Mont. 76

TALBOTT and others

v. KING and others.(Appeal of GWIN and others.)(Appeal of BAKER.)(Appeal of MORRIS.)

Supreme Court of the Territory of Montana.

Filed January 7, 1886.

Appeal from Second district, Silver Bow county.

Knowles & Forbis, for appellants.

W. W. Dixon, for respondents.

WADE, C. J.

These cases, which were argued together and involve the same question, may well be determined by one decision. The actions are in the nature of ejectment, in which the plaintiffs below and respondents here seek to recover the possession of the “Smoke-house Quartz-lode Mining Claim,” situate in Summit Valley mining district, Silver Bow county. They claim title and right of possession by virtue of a patent dated March 15, 1881, issued in pursuance of a location, as they contend, made April 16, 1875. The appellants claim title to a portion of the ground included in the Smoke-house patent under and by virtue of a patent for the Butte town-site, issued September 26, 1877, to the probate judge of Silver Bow county, in trust for the occupants of said town. The patent for the Smoke-house location contains the following exception:

“Excepting and excluding, however, from these presents, all town property rights upon the surface; and there are hereby expressly excepted and excluded from the same all houses, buildings, structures, lots, blocks, streets alleys, or other municipal improvements on the surface of the above-described premises not belonging to the grantees herein, and all rights necessary or proper to the occupation, possession, and enjoyment of the same.”

And the town-site patent contained the following:

“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.”

The plaintiffs offered in evidence the patent for the Smoke-house location, which was objected to for the reason that the exception contained in such patent excludes all town lots from the grant thereby made; and that it was necessary for the plaintiffs to show that the property in controversy was not one of the lots on the Smoke-house lode claim which was excepted from the grant. The patent was received in evidence. The defendants excepted, and this is the first assignment of error.

The only reason why a patent may be issued for a quartz-lode mining claim is that the ground has been previously located according to law. Such a location gives the person making the same the right to the exclusive possession and enjoyment of all the surface ground included within the lines of his location. This is a provision of the statute, and the rights thereby conferred cannot be encroached upon while the statute remains in force. In the case of Silver Bow M. & M. Co. v. Clark, 5 Mont. 378,S. C. 5 Pac. Rep. 570, we held that such an exception in a patent for a mining claim was void, for the reason that the location of a claim according to law had the effect of a grant from the government to the locator of the right to the exclusive possession and enjoyment of all the surface ground included within the lines of this location, and that the patent was but the perfecting and consummation of the title conveyed by the location. In that case we said:

“The principles enunciated in these cases apply with much force to a case where the land-office, without authority of law, inserts an exception into the granting part of a patent, whereby the title of the patentee is defeated. The Pawnbroker mining claim, at the time of the issuance of the patent therefor, was a valid claim and possession under existing laws of congress, and the patentee was entitled to the exclusive possession and enjoyment of all the surface ground thereof. There was no law depriving him in any manner of the right to such possession. He had purchased the property and paid for it, and was entitled to a conveyance of the full and complete title. As between individuals, he stood in a position to compel such a conveyance. There was no law authorizing the land department to except the surface ground from the conveyance, or in any other manner to abridge the title of the purchaser; and in so doing it exceeded its authority, and its act to that extent is void and of no effect upon the property conveyed. An exception that is void leaves the patent to stand as though it contained no such exception.” 5 Mont. 425, 426;S. C. 5 Pac. Rep. 582.

A valid location is equivalent to a contract of purchase. The right to occupy and purchase means the right to acquire a full title. The mineral lands are declared open to occupation and purchase. The location, together with the necessary work, is the purchase, and the patent is the evidence of the title so acquired. The location, therefore, has the effect of a grant from the government to the locator; and this grant cannot be defeated or abridged by an unauthorized exception contained in the patent, for the patent must always be in accordance with and the consummation of the grant evidenced by a valid location.

It is contended, however, that the act of congress of March 3, 1865, (Rev. St. U. S. § 2386,) limits the title to the locator of a mining claim, under the act of congress of May 10, 1872, (Rev. St. U. S. § 2319,) to the necessary use of the ground located for mining purposes. The act provides as follows:

“Where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to the town lots to be acquired shall be subject to such recognized possession, and the necessary use thereof.”

This statute was enacted at a time when it was the settled policy of the government not to sell its mineral lands, and when it was impossible for an individual to acquire title to such lands. Even then, when mineral veins were held and possessed by virtue of mere local rules and regulations, and when the title could not be acquired, the title to the town lots under the town-site act were subject to the necessary possession and use of the mine-owner. Even then, when the government did not propose to part with its title to the mineral lands, the possessory title to the mine, such as it was, is made superior to that of the lot-owner under the town-site act. That act gave to the mine-owner all the title he had, made the lot-owner's title subject to it, and is not at all inconsistent with the act of 1872, which opens the public mineral lands to exploration and purchase, and gives to the locator the full title when its terms have been complied with.

The patent for the town-site of Butte was issued September 26, 1877. The location of the Smoke-house claim was made April 16, 1875. On the trial the appellants offered to prove that in 1866 all of the premises included in the Smoke-house location had been surveyedfor a town; that streets had been marked out and town lots designated in such survey; and that the ground in controversy in this action was, in 1866, laid out as a town lot, and was then actually occupied and possessed by appellants' grantors as a town lot; and has been occupied continuously by appellants and their predecessors in interest from 1866 to the present time as a town lot and for town purposes; and that since 1866 the town of Butte has been actually settled and occupied as a town-site by a number of people; that at times before the location of the Smoke-house lode claim there had lived, and were living, within the bounds of the Butte town-site several hundred people, many of whom had resided upon the premises now known as the “Smoke-house lode Claim;” and that at the time of the location of said Smoke-house lode claim it embraced within its boundaries a large portion of the settlements of said town of Butte.

The introduction of this evidence was objected to for the reason that no rights can be acquired by settlement upon the public domain for town-lot purposes as against the United States or its grantees; that, under the laws of the United States, mineral lands are not open to settlement for town-sites, but all such mineral lands are reserved; that defendants and their grantors having accepted, and now claiming title under, the Butte town-site patent with a reservation therein authorized by law, no title was thereby acquired to any valid mining claim or possession, or to any mine of gold, silver, cinnabar, or copper, cannot now claim title as against any valid existing mining claim, but are estopped so to do; that any right or claim defendants or their grantors may have had to the premises in controversy by prior occupation of the Butte town-site should have been set up by adverse claim to the application for the Smoke-house lode patent in the United States land-office; and that defendants, having failed to set up any such adverse claim, are now precluded from asserting the same,-which objections were sustained, and this action of the court is also assigned as error.

Did the occupation of the ground included within the boundaries of the Smoke-house location from 1866, up to the date of its location in 1875, and subsequent thereto, as set forth in the proposed testimony, and the issuance of the town-site patent in 1877, subject and limit the title conveyed by the Smoke-house location and the patent issued in pursuance thereof, and cause such title thereby to become simply a title to the necessary use of the ground located for mining purposes, and for such purposes only? The mere possession of the mineral lands without a discovery conveys no title. The occupation of the mineral lands as and for the purposes of a town lot, is of no effect, as against a valid mining claim location, and no rights or equities flow therefrom. The statute expressly forbids the acquisition of title to any mine, mining claim, or possession by virtue of such occupation, and a town-site patent issued in pursuance thereof. The appellantsclaim title by virtue of a patent which provides, as required by law, that no...