United States v. Etcheverry

• Decision Date: 30 January 1956
• Docket Number: No. 5173.,5173.
• Citation: 230 F.2d 193
• Parties: UNITED STATES of America, Appellant, v. Paul ETCHEVERRY and John Etcheverry, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

230 F.2d 193 (1956)

UNITED STATES of America, Appellant, v. Paul ETCHEVERRY and John Etcheverry, Appellees.

No. 5173.

United States Court of Appeals Tenth Circuit.

January 30, 1956.

Roger P. Marquis, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., Donald E. Kelley, U. S. Atty., Denver, Colo., and Elizabeth Dudley, Washington, D. C., on the brief), for appellant.

Eugene H. Mast, Grand Junction, Colo., for appellee.

Before MURRAH and PICKETT, Circuit Judges, and MELLOTT, District Judge.

PICKETT, Circuit Judge.

The United States brought this action against the defendants, Paul Etcheverry and John Etcheverry, to recover damages for alleged trespass on certain lands of the public domain in Colorado, and to enjoin further trespass. The Kerogen Oil Company, a corporation, was in possession of the lands by virtue of valid placer mining claims. The defendants leased the lands from the Kerogen Oil Company for grazing purposes and grazed cattle and sheep thereon during the years 1951 and 1952. On July 1, 1953, the Kerogen Oil Company made application for a patent to the mining claims, which was allowed upon payment of the required purchase price, and a final certificate was issued January 8, 1954, showing it to be entitled to a patent. The United States concedes that after the issuance of the final certificate, it was not entitled to a restraining order. This appeal is from a judgment denying the recovery of damages for trespass prior to the issuance of the final certificate.

Two questions are presented: (1) Does the owner of a valid mining claim have the right to lease or to use the surface of the claim for the grazing of livestock not incident to the mining operations; and (2) After the United States accepts payment and issues a final certificate or a patent to mining claims, may it recover damages for trespass committed prior to the issuance of the final certificate or patent but during the time the land was held under a valid mining location?

30 U.S.C.A. § 22 provides that "all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall 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 * * * 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."

After a valid mining location is made, 30 U.S.C.A. § 26 gives to the locator "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, * * *."

The law is well settled by innumerable decisions that when a mining claim has been perfected under the law, it is in effect a grant from the United States of the exclusive right of possession to the same. It constitutes property to its fullest extent, and is real property subject to be sold, transferred, mortgaged, taxed, and inherited without infringing any right or title of the United States. Ickes v. Virginia-Colorado Development Corp., 295 U.S. 639, 55 S. Ct. 888, 79 L.Ed. 1627; Wilbur v. U. S. ex rel. Krushnic, 280 U.S. 306, 50 S.Ct. 103, 74 L.Ed. 445; Clipper Mining Co. v. Eli Mining & Land Co., 194 U.S. 220, 24 S.Ct. 632, 48 L.Ed. 944; St. Louis Mining & Mill Co. v. Montana Mining Co., 171 U.S. 650, 19 S.Ct. 61, 43 L.Ed. 320; Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735.

Although Section 22 declares that all valuable mineral deposits belonging to the United States shall be free and open to exploration and purchase, there is no specific provision in the statute which gives to a locator the right to use the lands for purposes of profit or to lease lands for purposes other than for exploration and production of minerals. In all the cases above cited, where broad language was used in connection with the exclusive right of possession by the locator, the controversy arose over the legality of mining claims or the right of possession of the claim for mining purposes. The right of the locator to use the surface for purposes other than for mining, or the right to dispose of timber, grass or other materials on or under the surface of the lands was not under consideration. We construe these cases to hold that the exclusive possession of the surface of the land to which the locator is entitled is limited to use for mining purposes.

We are satisfied that under the statute the mere location of a mining claim gives to the locator only the right to explore for and mine minerals, and to purchase the land if there has been a compliance with the provisions of the statute. As against third parties, the locator or his assigns have exclusive right to use the surface of this land, but as against the United States, his right is conditional and inchoate. Shiver v. United States, 159 U.S. 491, 16 S.Ct. 54, 40 L.Ed. 231. The land is no longer a part of the public domain so far as the minerals are concerned, and it is not open to relocation until the rights of a former locator have terminated.

In Teller v. United States, 8 Cir., 113 F. 273, 280, the facts as to the mining claim and the alleged trespass were the same as those in the instant case except that timber, not grass, was sold by the locator. The court recognized the public policy of making gratuitous grants to citizens of the possessory right of mineral claims, but it was stated that the United States "has not seen fit to give away the land containing the minerals, but, on the contrary, has adopted the policy of selling the same to the locator, if he desires to...