United States v. Ickes, 7023.

• Decision Date: 27 May 1938
• Docket Number: No. 7023.,7023.
• Parties: UNITED STATES ex rel. UNITED STATES BORAX CO. v. ICKES, Secretary of Interior.
• Court: U.S. Court of Appeals — District of Columbia Circuit

68 App. DC 399, 98 F.2d 271 (1938)

UNITED STATES ex rel. UNITED STATES BORAX CO. v. ICKES, Secretary of Interior.^*

No. 7023.

United States Court of Appeals for the District of Columbia.

Decided May 27, 1938.

Samuel Herrick and Philip F. Herrick, both of Washington, D. C., for appellant.

Nathan R. Margold, Solicitor, Department of the Interior, Frederick Bernays Wiener, Jackson E. Price, and Harry M. Edelstein, all of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

STEPHENS, Associate Justice.

This is an appeal from a decree of the District Court of the United States for the District of Columbia dismissing the petition of the United States Borax Company, relator-appellant, hereafter referred to as appellant, for a writ of mandamus directing the appellee, Harold L. Ickes, Secretary of the Interior, to cause to be issued and delivered to the appellant a patent of the United States for 80 acres of land in California. The appellant asserted, under the mining laws of the United States, a right of patent to this land as a placer mining location. It appears that a rule was issued by the District Court against the appellee to show cause why a writ of mandamus should not issue, and that the appellee filed a return to the rule and an answer to the petition for mandamus. To this return and answer the appellant demurred. After a hearing upon the demurrer, the same was overruled. The appellant elected to stand upon the demurrer, whereupon the petition was dismissed and this appeal taken.

The facts in the case are as follows: Under the mining laws of the United States, "all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase. . ."¹ "Claims usually called `placers,' . . . shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims . . ."² As a result of this provision a further enactment — that "no location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim located."³ — is applicable to placer claims. Donnelly v. United States, 228 U.S. 243, 266, 33 S.Ct. 449, 57 L.Ed. 820, Ann.Cas. 1913E, 710 (1913). In respect of placer claims the mining laws also provide that "no location of a placer-claim . . . shall exceed one hundred and sixty acres for any one person or association of persons,"⁴ and that "no such location shall include more than twenty acres for each individual claimant. . ."⁵

Under these statutes one Widdess and seven others, as an association of persons, took steps, commencing in May, 1925, to locate in California a 160 acre tract of land referred to as the Big Keen No. 2 placer claim. To this end Widdess drilled a well, referred to as Well No. 47, in May and June of 1925, and found what was described as "seams of blue shale containing a trace of boric acid." On January 7, 1927, Widdess and his associates deeded such rights as they had in respect of this tract to the appellant. On March 8 of the same year, the appellant made an admittedly valid discovery of borax on the tract in a well referred to as Well No. 62; on July 13, it filed an application in the United States Land Office at Los Angeles, California, for a patent to the entire tract of 160 acres. Omitting reference to intermediate proceedings not here material, this application was ultimately disallowed by the appellee, except as to 20 acres immediately surrounding the discovery in Well No. 62. This disallowance was upon the three grounds that: four of Widdess' associates were not bona fide, so that the area available for location and patent was in any event not greater than 80 acres; the "trace of boric acid" assertedly found in Well No. 47 did not fulfil the legal requirements for discovery, so that at the time of the conveyance to the appellant on January 7, 1927, there had been no perfected location; when the valid discovery of March 8, 1927, was made, in Well No. 62, there was but one individual claimant, the corporation appellant, and that it was as such entitled to but 20 acres. The question whether four of Widdess' associates were bona fide is out of the case; there is now no contention on the part of the appellant that it is entitled to more than 80 acres. Also — and properly — there is no serious contention that the discovery in Well No. 47 was valid.⁶ There remains as the sole substantive question that of the correctness of the third ground upon which the appellee based his disallowance, except in respect of 20 acres, of the application. That question may be otherwise stated as follows: Is the transferee of an association placer claim of more than 20 acres, who, after the transfer, makes a discovery, entitled to a patent to more than the 20 acres immediately surrounding the discovery? There is a further question concerning the propriety, under the circumstances of the case, of the remedy of mandamus.

Attacking the position of the appellee in refusing a patent for the entire 80 acres, and the decision of the trial court in refusing to issue a writ of mandamus, the appellant urges the following considerations and authorities, which we discuss seriatim:

1. A prospector's possession of public mineral land prior to discovery is entitled to protection against forcible, fraudulent or clandestine intrusion, and this right of possession is transferable. This is the law. Union Oil Co. v. Smith, 249 U.S. 337, 39 S.Ct. 308, 63 L.Ed. 635 (1919); Rooney v. Barnette, 200 F. 700, 710 (9 Cir., 1912). Appellant contends that from this proposition it follows that the transferee of an association has after transfer exactly the right that the transferor had, to wit, the right to perfect through a single discovery the entire tract entered by the association, rather than the mere 20 acres immediately surrounding the discovery. We think this does not necessarily follow. To reach this conclusion from the premise stated is to beg the substantive question involved.

2. The appellant urges that the California courts have passed on the substantive question under discussion and that their rulings have been contrary to the conclusion reached by the appellee and the trial court. The appellant cites Miller v. Chrisman, 140 Cal. 440, 73 P. 1083, 74 P. 444, 98 Am.St.Rep. 63 (1903), and Merced Oil Mining Co. v. Patterson, 153 Cal. 624, 96 P. 90 (1908). In Miller v. Chrisman, one Barieau and seven others, as an association of persons, in 1895 entered upon a 160 acre tract of public land in California for the purpose of developing oil. Barieau claimed in the same year to have seen seepage oil upon the tract and asserted this to be a discovery. On December 24, 1896, Barieau and his associates conveyed to Miller. On December 31 of the same year, Miller executed a purported abandonment of the tract, but later on the same day took possession again on behalf of himself and seven others, as an association. On the following day, January 1, 1897, the defendants, A. Y. and H. T. Chrisman, entered upon the tract. Their entry, however, was not, as was ultimately determined, in good faith, and they did no work upon the land and made no discovery. On July 31, 1897, Miller's associates conveyed their rights to him. Miller then leased the tract and in October, 1897, his lessee made a valid discovery. Finally on December 22, 1898, one Fewel entered upon the tract. His entry, however, was at night and, as ultimately found, clandestine and fraudulent. Suit was brought by Miller against the Chrismans to quiet title; Fewel intervened. No issue was raised in the California courts by the Chrismans as to the right of Miller to validate by the discovery of October, 1897, the location of the entire 160 acre tract. The Chrismans' position was that Miller's abandonment was fictitious and fraudulent, in that it was intended to accomplish an avoidance of assessment work required upon a location perfected by a valid discovery. This contention the Supreme Court of California disposed of in Miller's favor by holding that the sighting of seepage oil by Barieau did not constitute a valid discovery, and that therefore no location had been perfected prior to Miller's abandonment and re-entry, so that no duty of assessment work had arisen; the court held therefore that the re-entry of Miller after abandonment was valid and the Chrismans' entry invalid. The issue as to the perfection of location of the entire tract by the discovery of October, 1897, by Miller's lessee, that is, after Miller's associates had conveyed to him, was raised by Fewel. In disposing of this the Supreme Court of California held first that Fewel's entry, because "fraudulent, surreptitious, and clandestine," could not be the basis of any right. But the court also ruled against Fewel and in favor of Miller by holding that Miller could perfect the location of the entire 160 acres by the discovery of October, 1897. On this subject the court, speaking through Henshaw, J., said:

". . . the law expressly provides that if one of the co-locators abandons his claim or interest, by refusing to bear his proportion of the cost of the assessment-work, such abandonment does not, as would be claimed, work the destruction of the whole location, but `his interest in the claim shall become the property of his co-owners who have made the required expenditures.' . . . It is undisputed that when the location has once been perfected one of the associates may by conveyance acquire all of the rights of his fellows, and we can perceive no reason why the right to prosecute the work and perfect such a location by discovery may not itself be vested in a single one of them. If, instead of conveying, the seven associates had stood idle and refused to contribute their share to the necessary work of developing, and Miller . . . had...