United States v. Copper Queen Consolidated Mining Co.

• Decision Date: 28 March 1900
• Docket Number: Civil 690
• Parties: UNITED STATES OF AMERICA, Plaintiff and Appellant, v. THE COPPER QUEEN CONSOLIDATED MINING COMPANY, a Corporation, Defendant and Appellee
• Court: Arizona Supreme Court

60 P. 885

7 Ariz. 80

UNITED STATES OF AMERICA, Plaintiff and Appellant, v. THE COPPER QUEEN CONSOLIDATED MINING COMPANY, a Corporation, Defendant and Appellee

Civil No. 690

Supreme Court of Arizona

March 28, 1900

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. George R. Davis Judge. Affirmed.

The facts are stated in the opinion.

Robert E. Morrison, U.S. District Attorney, and Thomas D. Bennett Assistant U.S. District Attorney, for Appellant.

The defendant was required to show that Ross was a citizen and a bona fide resident. Northern Pacific Ry. Co. v Lewis, 162 U.S. 366, 16 S.Ct. 831; United States v Legg, Compilation of Timber Laws, 1897, p. 63; United States v. Tipton, Compilation of Timber Laws, 1887, p. 55.

William Herring (Sarah H. Sorin, of Counsel), for Appellee.

The strict rule invoked by plaintiff and set forth in the instructions to the jury given at its request, that in order to constitute "mineral lands" the land must be shown to contain mineral of commercial value, -- that it must be land which it will pay to mine by the usual modes of mining, -- is a rule which applies only to contests of parties claiming the land for different purposes, and which is not applicable in determining what lands are subject to location and entry as mineral lands, under the mining laws of the United States, or determining what lands are mineral lands within the meaning of the statute of June 3, 1878. Migeon v. Montana Cent. Ry. Co., 77 F. 240; Book v. Justice Min. Co., 58 F. 124; Shreve v. Copper Bell Min. Co., 11 Mont. 309, 28 P. 315.

A bona fide resident of the territory of Arizona is expressly authorized to cut timber on the public mineral lands, and it is immaterial whether the evidence discloses that such resident was also a citizen or not. United States v. Smith, 11 F. 487, 8 Saw. 101; United States v. Eureka and P.R. Co., 40 F. 419; United States v. Richmond Min. Co., 40 F. 415.

The act of Congress of June 3, 1878, does not empower the secretary of the interior to prescribe rules and regulations which limit or abridge the privileges conferred by that statute, and any rule or regulation of the secretary of the interior in relation to cutting timber on the public mineral lands which impairs the license granted by that act is unconstitutional and void. The interpretation placed upon the public-land acts by the secretary of the interior is not binding upon the courts. Wisconsin Cent. R. Co. v. Forsythe, 159 U.S. 61, 15 S.Ct. 1020; Northern Pac. R. Co. v. Colburn, 164 U.S. 383, 17 S.Ct. 98; Lake Superior Ship R. and I. Co. v. Cunningham, 155 U.S. 354, 15 S.Ct. 103; Irvine v. Marshall, 20 How. 567; United States v. Murphy, 32 F. 376; United States v. Dickson, 15 Pet. 141.

The question as to the existence of mineral in the lands upon which the timber was cut and the question of its quantity and value were matters of fact for the determination of the jury. As to the character of the land, their verdict is conclusive. United States v. Edwards, 38 F. 812; Book v. Justice Min. Co., 58 F. 106; Blue Bird Min. Co. v. Largey, 49 F. 289; Iron Silver Min. Co. v. Mike & Starr G. and S. Min. Co., 143 U.S. 394, 12 S.Ct. 543; United States v. Saucier, 5 N. Mex. 569, 25 P. 791.

OPINION

SLOAN, J.

-- The United States, on March 6, 1895, brought suit in the district court of the first judicial district against one D. D. Ross and the Copper Queen Consolidated Mining Company, a corporation, to recover the sum of $183,070.50, the value of certain timber alleged to have been wrongfully cut and removed from the public lands of the United States by said defendants. A trial was had in November, 1895, which resulted in the disagreement of the jury, whereupon the further trial of the case was continued until the twenty-fifth day of May, 1898, when the plaintiff was granted leave to file, and did file, an amended complaint, which, omitting the title of the court and the cause, was as follows: "(1) The defendant the Copper Queen Consolidated Mining Company is a corporation organized and existing under and by virtue of the laws of the state of New York, and doing business in the county of Cochise, territory of Arizona. (2) That said defendant wrongfully cut and caused to be cut and removed from the surveyed and unsurveyed public lands of the United States of America a large quantity of timber, to wit, five millions nine hundred and five thousand five hundred feet of timber. (3) That said timber was by the defendant wrongfully cut and caused to be cut from the following surveyed and unsurveyed public lands of the United States of America, to wit: That certain land lying in a canon in the Chiricahua Mountains in, east of, and adjacent to townships seventeen and eighteen south, ranges twenty-nine and thirty east of Gila and Salt River base and meridian, about sixty miles southeast from the town of Willcox, on the Southern Pacific Railway, and on what is known as 'Rock Creek,' all in the county of Cochise, territory of Arizona. (4) That the value of the timber so wrongfully cut and caused to be cut and removed from the said public lands of the United States of America was the sum of thirty-one dollars per thousand feet, and of the aggregate value of one hundred and eighty-three thousand seventy and fifty one-hundredths dollars ($183,070.50) lawful money of the United States of America. (5) That all of said timber aforesaid wrongfully cut and caused to be cut and removed from the surveyed and unsurveyed public lands aforesaid by defendant belonged to and was the property of the United States of America, and all said timber was cut, removed, taken by, delivered to, and used and consumed by defendant Copper Queen Consolidated Mining Company. (6) That at the time the timber aforesaid was wrongfully cut, caused to be cut, removed, taken by, delivered to, and used and consumed by the defendant from the lands aforesaid, the said lands were surveyed and unsurveyed public lands of the United States of America, and defendant well knew that said timber was the property of the United States, and was wrongfully cut, caused to be cut, removed, taken by, delivered to, and used and consumed by defendant Copper Queen Consolidated Mining Company. Wherefore plaintiff prays judgment against defendant for the sum of one hundred and eight-three thousand seventy and fifty one-hundredths dollars ($183,070.50) lawful money of the United States of America, and for its costs and disbursements in this action incurred." To the amended complaint the defendant company filed its answer, denying that it had cut or removed, or caused to be cut or removed, the timber, or any of the timber, mentioned in the complaint; and further denying that the said timber, or any part of it, was cut upon the surveyed public lands of the United States; but alleging that one Daniel D. Ross, formerly made defendant in the action, but since deceased, cut and removed, and caused to be cut and removed, from the unsurveyed public lands of the United States lying in a canon in the Chiricahua Mountains, known as "Rock Creek," and within the county of Cochise, the quantity of timber mentioned in the complaint; that this timber was sold and delivered to it by said Ross at the town of Bisbee, in said territory, and was used and consumed by it wholly for mining and other domestic purposes within the territory. The answer further alleged that Ross cut and removed said timber from the public mineral lands of the United States under the authority of the act of Congress of June 3, 1878; that said Ross, at the time he so cut and removed said timber, was a citizen of the United States of America, and that at the time both the defendant and said Ross were bona fide residents of the territory; that the portion of the said Chiricahua Mountains from which said timber was cut and removed was not subject to entry under the existing laws of the United States, except for mineral entry; that said land from which said timber was cut was within the organized mining districts, and was in the vicinity of and adjacent to valuable known and recognized mines, and was and is mineral land within the meaning of said act of Congress. The cause was tried to a jury upon the amended complaint and answer, and a verdict found for the defendant. The United States appeals from the order overruling its motion for a new trial and...