Tibbitts v. Tong

• Decision Date: 31 August 1882
• Parties: TIBBITTS and others v. AH TONG and others.
• Court: Montana Supreme Court

4 Mont. 536

TIBBITTS and others

v.AH TONG and others.

Supreme Court of the Territory of Montana.

August Term, 1882.

The right to locate and the right to possess a mining claim go together; they are part of the same grant, and neither can exist without the other. If, therefore, the grant by assignment or conveyance fails upon an alien, incapable of making a location, his possession is of no consequence, the possession being transferred to one who, under the statutes, is incapable of becoming a purchaser from the government. Such possession being part and parcel of the purchase is illegal, and is equivalent to an abandonment, and opens the ground to location and possession by any qualified person. The alien cannot become the government's grantee, and cannot become so in a roundabout way, by being the grantee of the government's grantee.

Appeal from Deer Lodge county, Second district.

GALBRAITH, J., dissents.

Knowles & Forbis, for appellants.

J. C. Robinson, for respondents.

WADE, C. J.

The question presented by this appeal arises from the following facts: On the eleventh day of April, 1880, James McDonald and others, who were citizens, owned and were in possession of certain places, mining claims situate in the Pioneer mining district, Deer Lodge county, under locations before that time duly made, and on that day, for a valuable consideration, sold and conveyed the same to the defendants, who are alien Chinamen, who went into the possession thereof under and by virtue of such sale, and have ever since possessed, worked, and mined the same; and while they were so working and mining said ground the plaintiffs, who are citizens, on the ninth day of April, 1881, duly located the same, and now claim to be the owners, and entitled to the possession thereof. Hence, the question, are the plaintiffs entitled so to own and possess the ground by virtue of their location, notwithstanding the location by the defendants' grantors, and the purchase and possession by the defendants? In other words, can an alien take and hold the possessory title to an unpatented mining claim which has been conveyed to him by a citizen, as against another citizen who has located and demands possession of the same, or does such conveyance have the effect to so restore the claim to the public domain as to authorize its location and possession by a citizen? If this question were to be determined as at common law, its solution would be without difficulty. That law authorized an alien to purchase and to hold real estate as against every one except the government, and the government could not divest him of his title or interest therein except upon inquest of office found, which was an inquiry by the king's officers or commissioners, before a jury, concerning the king's title or rights of possession to lands or tenements, goods or chattels. Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 619, 620;Governeur's Heirs v. Robertson, 11 Wheat. 348;Elmendorff v. Carmichael, 3 Litt. (Ky.) 472; S C. reported in 14 Amer. Dec. 86, and note; 2 Bouv. Law Dict. tit. “Inquest of Office.” The doctrine of the common law, however, is inapplicable, since the question must be determined by an interpretation of the act of congress opening the mineral lands of the United Statesto wxploration, occupation, and purchase. That act provides: “All valuable mineral deposits in lands belonging to the United States, b 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 or rules of miners in the several mining districts, so far as the same are applicable, and not inconsistent with the laws of the United States.” Rev. St. § 2319.

We have upon several occasions held that a location under this section of the law carries with it the grant of an easement from the government to the persons making the location in the ground located. Smith v. Robinson, 1 Mont. 14; Belk v. Meagher, 3 Mont. 79. The easement so granted by virtue of a location, in pursuance of the law, is the right to the possession, and the right to purchase when the law has been fully complied with. The location is the foundation of the possessory title, and possession under it, as required by the law and the local rules and customs, keeps the title alive. The government holds the superior title in trust for the person so holding the possessory title until by complying with the law he may acquire the full title.

But this easement or grant to the locator cannot be severed or divided. Being made up of the right to the possession and the right to purchase, if the right to the possession fails, the right to purchase is gone; and if the right to purchase is defeated, the right to the possession cannot be maintained. So, therefore, the person making the location, and his grantees, who only succeed to his rights, must have the capacity both to possess and to purchase, otherwise the grant of the government becomes divested and the ground again open to location. There cannot be such a location under the law as entitles the locator or his assignees to the possession without the right to purchase, nor to purchase without the right of possession. Possession and the right to purchase go together; they are parts of the same grant, which is a unity, and which becomes vested by the act of location. Therefore, the right to the possession cannot be transferred to any person who is incapable of causing his possessory right or title to ripen into a full title by purchasing from the government. Such a person could not so occupy and possess; he could not so comply with the law, and the local rules and customs, as to preserve his right to the possession, because such right can only be kept alive by being linked to the right to purchase. Possession under a location is preliminary to a purchase, and can only be of that character. It is one step in the process by which the government parts with its title to the purchaser. And so he who takes possession under a location, or he to whom such possession is transferred, must be capable of becoming a purchaser from the government, for such possession is a part of the purchase. If, therefore, possession is transferred to one who, under the statutes, is incapable of becoming a purchaser from the government, such possession, being part and parcel of the purchase, is illegal, and such transfer of possession is equivalent to abandonment, and opens the ground to location and possession by any one capable of making and holding the same.

The term “occupation,” as used in the statute, is equivalent to possession. The right to occupy is the right to possess and to hold. The right to locate is included in the right to occupy, and incident to a location is the right of possession. But the right of occupation and purchase is limited to citizens, and to those who have declared their intention to become such. Therefore, an alien cannot occupy or possess under the grant from the government. If he cannot take by purchase, he cannot hold by possession, for they both require the same capacity and are parts of the same right. If he cannot occupy so as to become a purchaser, he cannot so as to hold the possessory title.

The locator of a mining claim is the assignee of the United States so long as he complies with the conditions imposed by the law. And this relation must be kept up when the claim is transferred. He to whom the possessory title is assigned, is always the assignee of the United States, hence he must be such a person as may sustain that relation, and hence such a person as might establish the relation in the first instance; in other words, such a person as might make a location. The argument that a location is a grant, and that after a grant the claim granted does not belong to the United States, and therefore cannot be granted again, would be legitimate and forcible were it not for the fact that the grant, which is evidenced by a location, must be kept in being by possession; and, as we have already seen, this possession being preliminary to and one of the steps towards acquiring title by purchase from the government, must be by a person authorized to make such a purchase.

These views are not unsupported by authority. In the case of Chapman v. Toy Long it is held that “the license contained in section 2319, supra, to explore, occupy, and purchase any of the lands of the United States containing mineral deposits, is confined to citizens of the United States, and to those who have declared their intention to become such. The defendants, being aliens, are not within the purviewof the law, and, by an almost necessary implication, are prohibited from the exercise of the rights conferred by it.” 4 Sawy. 28. In the case of Golden Fleece Co. v. Cable Con. Co. 12 Nev. 322, the court holds as follows: “As to the first point, it is clear that an alien who has never declared his intention to become a citizen is not a qualified locator of mining ground, and he cannot hold a mining claim, either by actual possession or by location, against one who connects himself with the government title by compliance with the mining law.”

The case of Territory v. Lee, 2 Mont. 124, is referred to as an authority in favor of respondents. That case involved the validity of an act of the legislature entitled “An act to provide for the forfeiture to the territory of placer mines held by aliens;” and it was held that the territory had no interest in claims held by aliens or others, and no title thereto, but that by the operation of this act of the legislature the territory became the owner of the possessory title to such claims, and authorized to sell the same for its own use, so that by the force of this statute it became the owner of property in...