Valcalda v. Silver Peak Mines

• Decision Date: 07 February 1898
• Docket Number: 373.
• Citation: 86 F. 90
• Parties: VALCALDA et al. v. SILVER PEAK MINES.
• Court: U.S. Court of Appeals — Ninth Circuit

86 F. 90

VALCALDA et al. v. SILVER PEAK MINES.

No. 373.

United States Court of Appeals, Ninth Circuit.

February 7, 1898

Robert M. Clarke, for plaintiffs in error.

M. A Murphy, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

On the 1st day of October, 1888, the Silver Peak Mines, a corporation, by its attorney in fact, located the Crown mine and at the same time located five acres of land, not contiguous thereto, as a mill site, under the provisions of section 2337 of the Revised Statutes of the United States which provides as follows:

'Where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes such non-adjacent surface ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as for survey and notice as are applicable to veins or lodes; but no location hereafter made of such non-adjacent land shall exceed five acres, and payment for the same must be made at the same rate as fixed by this chapter for the superficies of the lode.'

In the location notice of the mill site, claim was made to all the waters running from the two springs situated thereon. The notices of the location of the mine and the mill site were posted, the one on the mining claim, and the other on the mill site; and both notices were recorded in the records of the Silver Peak and Red Mountain mining district; and thereafter copies of said notices were recorded in the records of the county recorder for Esmeralda county. During the years 1888 and 1889 work was done and money was expended by the corporation upon its mine, and a tunnel was run on the mill site for the purpose of increasing the supply of water from the said springs; and in the year 1889 a survey both of the mine and the mill site was made for the corporation by a United States deputy mineral surveyor and posts were numbered and marked and placed at each corner of the mill site by the surveyor. Thereafter work was performed by the corporation in cleaning out the said springs, and increasing the supply of the water. Application was made by the corporation to the government of the United States for a patent; and on February 13, 1890, final proof and payment was made for the land embraced in the Crown lode mine and mill site. Long prior to the date when the mill site was located, the land included in the application had been the mill site by the locator's predecessors in interest; and a house, a stockade stable, and a corral had been built upon said premises, and a road had been graded therefrom to the mines of the corporation, at a cost of between ten and fifteen thousand dollars. From the time of its location of said mill site, the corporation had made use of the water of the springs by hauling it in wagons a distance of four or five miles, for use at the mines, for its employes, and for culinary purposes. The only way in which mine owners in that vicinity could obtain water for use in their mines was by hauling it or packing it from springs, and it was the custom of miners in that district to locate springs of water in connection with their mines. In March, 1896, the corporation began an action of ejectment against Giovanni Valcalda and others, the plaintiffs in error, alleging that on March 16, 1896, the defendants had ousted the plaintiff from the premises included in the mill site. The defendants answered, denying the plaintiff's title and right of possession, and denying the plaintiff's right to the spring or the waters thereof, and alleging that the defendant Giovanni Valcalda owned the land upon which the spring rises, and that he had appropriated the water of the spring for mechanical, stock, and domestic purposes. Upon the issues thus formed, the plaintiff in the action had a verdict and judgment for possession of the premises and the springs of water situated thereon.

Upon the writ of error from this court, it is assigned as error, first, that the court admitted in evidence the duplicate receipt for the purchase money of the Crown mill site, offered by the plaintiff. It is contended that the receipt for the purchase money did not vest the legal title in the plaintiff, and that it was not sufficient to enable it to recover in ejectment. To this it is sufficient to say that the record shows that the receipt was not offered or admitted in evidence for the purpose of proving title in the plaintiff, but was offered and admitted in connection with the other evidence, as tending to show the good faith of the plaintiff in its possession pursuant to its location and its survey, by proving that it subsequently posted notice of its intention to apply for a patent, and paid in good faith the purchase price of the land embraced in the claim. The charge of the court to the jury expressly directs their attention to the purpose for which this evidence was admitted, and for which they might consider it. There was no error in admitting it for that purpose. Neither party claimed that it had acquired the title of the government, nor did either in any way connect itself with that title. The questions at issue were whether the plaintiff had been in the possession of the premises, and whether the defendants had ousted it therefrom. The receiver's receipt was evidence only of possession by the plaintiff, in connection with other evidence thereof, and the jury were not permitted to consider it as evidence of a right of possession.

These considerations are applicable to the next two assignments of error, which are-- First, that there was error in admitting in evidence an application of one of the plaintiff's grantors to purchase from the state of Nevada the land in controversy, together with the receipt for the purchase money and the deed of such grantor to the plaintiff; and, second that there was error in excluding the defendants' proffered proof that the certificate of purchase and duplicate receipt issued by the land office to the plaintiff for the mill site had been canceled. The papers so admitted showing a conveyance from the plaintiff's predecessor were admitted solely as tending to prove possession. The plaintiff was making no claim of title through its receiver's receipt, and the fact that that instrument had been canceled had no bearing upon the questions in issue. It having been expressly admitted by both parties to the suit that neither party connected itself with the government title, the plaintiff was left to recover, if at all, upon the fact that it had been in the possession of the premises when ousted by the defendants. The action of the officers of the general land office ...