Uinta Tunnel Min. & Transp. Co. v. Creede & Cripple Creek Min. & Mill. Co.

• Decision Date: 18 November 1902
• Docket Number: 1,762.
• Citation: Uinta Tunnel Min. & Transp. Co. v. Creede & Cripple Creek Min. & Mill. Co., 119 F. 164 (8th Cir. 1902)
• Parties: UINTA TUNNEL MIN. & TRANSP. CO. v. CREEDE & CRIPPLE CREEK MIN. & MILL CO.
• Court: U.S. Court of Appeals — Eighth Circuit

119 F. 164

UINTA TUNNEL MIN. & TRANSP. CO. v. CREEDE & CRIPPLE CREEK MIN. & MILL CO.

No. 1,762.

United States Court of Appeals, Eighth Circuit.

November 18, 1902

(Syllabus by the Court.)

A delay of more than five years, before applying for a reissue on the ground of inadvertence, accident, or mistake, invalidates the reissue, unless excused by special circumstances.

The Ewert reissue patent No. 11,607 (original No. 361,934), and the Jeavons reissue No. 11,601 (original No. 463,629), each relating to blue-flame oil stoves, are void for excessive and unexcused delay in applying for such reissues, and also for anticipation of the original patents by one or more of the Morrill patents, Nos. 44,548, 55,033, and 60,224.

The Blackford reissue patent No. 11,592 (original No. 518,305) for a vapor burner, claim 9, if it exhibits invention, is limited by the prior art to the specific structure claimed. As so limited, held not infringed.

The claimant of a tunnel site located across lode claims is not required by sections 2325, 2326, Rev. St. (U.S. Comp. St. 1901, pp. 1429, 1430), to file an adverse claim, when applications for patents of the lode claims are made, in order to protect his rights in those cases in which his interest in the lode claims is so uncertain, contingent, and intangible that it cannot be fairly litigated when the applications are made.

Patents of lode mining claims based on entries made after the location of a claim for a tunnel site across them are subject to the rights of the claimant of the tunnel site in cases in which his rights therein were so uncertain, contingent, and intangible that they could not be fairly litigated when the applications for the patents were made.

The judgments of the land department permitting entries of land and the patents based upon those entries bind all the parties to the proceedings which resulted in them and all those claiming interests acquired from such parties subsequent to the entries. But they do not estop those who were not, and were not required to be, parties to the proceedings from establishing from the customary evidence the truth relative to any fact material to their claims in any litigation between them and the holders under the patents.

Entries and patents of lode mining claims in proceedings to which a claimant of a tunnel site, located across them prior to the entries, was not, and was not required to be, a party will not estop him from establishing by the testimony of witnesses who know, and by other customary evidence, the fact that no discoveries of lodes or mines of mineral had been made in the lode claims before the claim for the tunnel site was located across them.

Certificates of location of mining claims are not conclusive evidence of the facts which they recite against parties who claim the land they describe adversely to their makers.

Gerald Hughes and Scott Ashton (Charles J. Hughes, Jr., on the brief), for plaintiff in error.

H. H Lee (C. S. Thomas, A. T. Gunnell, W. H. Bryant, T. M Patterson, E. F. Richardson, and H. N. Hawkins, on the brief), for defendant in error.

The writ of error in this case challenges the trial of an issue involving the rights of the respective parties to the action to the possession of the space within the bore of a tunnel where it passes through two lode mining claims beneath the surface of the earth. The Creede & Cripple Creek Mining & Milling Company was the plaintiff, and the Uinta Tunnel Mining & Transportation Company was the defendant, in the action below, and they will be so styled in this statement and in the opinion which follows. The plaintiff was the owner of two lode mining claims called the Ocean Wave and the Little Mary, which were entered for patent on August 5, 1892, and were patented on December 21, 1893. The plaintiff alleged in its complaint that these claims were duly located and discovered on January 2, 1892. The defendant was the owner of a claim to a tunnel site which extended through these lode claims beneath the surface of the earth, and which was located on January 13, 1892. It also owned certain lode claims which had been located on blind veins that had been discovered in the tunnel after the lode claims of the plaintiff had been patented. The mining claims of the plaintiff were between the portal of the tunnel and the defendant's lode claims, and the latter had driven its tunnel through the plaintiff's claim, and was using it as a way to bring to the surface of the earth the ore it was extracting from its blind veins. The real issue was whether or not the defendant had the right of way along the bore of its tunnel through the lode claims of the plaintiff, and the determination of this issue depended upon the priority of their respective claims. The plaintiff asserted that its claims were discovered and located on January 2, 1892. The defendant averred that its tunnel was located on January 13, 1892, and that no discovery of mineral in rock in place was made within the lode claims of the plaintiff until after its tunnel site was located. These averments of the defendant were striken from the answer, and the evidence which it offered to sustain them was rejected. Exceptions were taken to these rulings, and there was a verdict and judgment for the plaintiff.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

When the claim to a tunnel site has been located before the entry of the conflicting lode mining claims which have subsequently passed to patents, is the question whether discoveries of mineral in rock in place were made within the lode claims before the location of the claim to the tunnel site open to determination by means of evidence or testimony dehors the patents? This is the principal question presented by this record. If the query were whether or not it is competent to show by proof outside the receiver's receipts or the patents that there had been no location of the patented claims or no discovery of the lodes therein before they were entered for patent, there would be no doubt that a negative answer must be returned to the question for the reason that this is an issue between the parties to a proceeding before the land department which that tribunal necessarily considers and decides when it permits the entries of the lands, and its decisions of questions within its jurisdiction are impervious to collateral attack. King v. McAndrews, 111 F. 860, 863, 50 C.C.A. 29, 32. This was the question which the supreme court answered in Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U.S. 499, 502, 503, 510, 21 Sup.Ct. 885, 45 L.Ed. 1200; and while, if the language of the opinion in that case is carelessly read without knowledge of or reference to the question actually before the court, it may seem to be broader, a careful examination of the facts which the record there discloses demonstrates the proposition that the decision went no further. In that case the receiver's receipts on the lode claims of the appellee had been issued before the claim to the tunnel site was located. Page 502, 182 U.S., and page 887, 21 Sup.Ct., 45 L.Ed. 1200. In a proceeding between the lode claimants and the United States the land department had decided that mineral in place had been discovered within the claims and had permitted their entry. Subsequent to this decision and to these entries the owner of the claim to the tunnel site located it across the lode claims, and upon the trial offered to prove that there had been no discovery of mineral in place within those claims before they were entered. The trial court rejected the offer. The supreme court said: 'The ruling was right. The patents were proof of the discovery, and related back to the date of the locations of the claims. The patents could not be collaterally attacked. ' Thus, it may be seen that the only proposition there decided was that one who had initiated no claim upon lands when they were entered by other claimants could not subsequently collaterally attack the decision of the land department that there had been a discovery of mineral in place upon the claims at some time before they were entered.

Counsel for the plaintiff rely upon the decision and opinion in this case, and insist that it fairly sustains the rulings of the court below. But there are radical and controlling differences between the question presented in that case and the issue of law before us in the case in hand.

1. A judgment is binding upon the parties to the proceeding in which it is rendered and upon their privies. The parties to the judgments of the land department by which it allowed the entries of the lode claims in the case of the gold mining company were the United States and the owners of those claims. No other parties had or claimed any interest in the land at the time those entries were made. The judgments and the patents accordingly bound and estopped these parties and their subsequent assignees. They estopped all parties who initiated claims upon or interests in the lands under either of the parties to the proceeding subsequent to the judgments of the land department. The claimant of the tunnel site in that case initiated its claim under the United States, one of the parties to that proceeding, subsequent to the judgments. It was therefore a privy of the United States, and was estopped by the judgments of the land department from proving that no discoveries had been made upon the lode claims before these judgments were rendered. This is not the case in the action before us. The claim to the tunnel site was located on January 13, 1892. The judgments of the land department allowing the entries were rendered on August 5, 1892. At that time there were three parties interested in the land,-- the...