52 F. 250 | 8th Cir. | 1892
Upon the filing of the opinion in this cause, counsel for appellees submitted a petition for rehearing, supported by briefs, in which it is strenuously contended that the court erred in holding that it was not open to the appellees to aver that William J. Wood was an alien, and therefore could not acquire any right or title in the mining claim located by him in conjunction with Fisk and Fitzpatrick.
It is urged that mining interests and rights form an exception to the general rule that the right to defeat a title to realty on the ground of alienage is reserved only to the sovereign, and reliance is placed upon a class of authorities of which O’Reilly v. Campbell, 116 U. S. 418, 6 Sup. Ct. Rep. 421, is a fair representative. In that case the defendants, claiming to be the owners of the Omaha lode, filed a survey and plat thereof in the proper land office, and applied for a patent thereto under section 2325 of the Revised Statutes. The plaintiffs, who were the owners of an adjacent mining property, known as the “Highland Boy Lode,” filed
“It is true that the mineral lands of the United States are open to exploration and purchase only by citizens of the United States, or by those who have-declared their intention to become such; and, had the objection been taken in the court below that such citizenship of the plaintiffs had not been shown, it might, if not obviated, have been fatal. There is, however, nothing in the record to show that it was raised below.”
There can be no question, under the provisions of section 2319 of the Revised Statutes, that, when application is made for the issuance of evidence of title to mining property, it is necessary to show that the applicant is a citizen of the United States, or has declared his intention to become such, before a conveyance of title can be properly issued; and therefore, as was held by the supreme court in the case just cited, if a party is seeking to procure the title to mining property from the United States, if taken at the proper time, the objection of alienage would prevent the acquirement of title, and such objection may be made by any one adversely interested. In such cases the sovereign is a party in fact to the proceeding, which is a direct one, for the procurement of title, and the objection of alienage, no matter by whom suggested, is based solely upon the right of the government to interpose the fact of alienage as a bar to procuring or holding an interest in realty. If, however, the grant of title, or the equivalent, is made to an alien, .it cannot be attacked by any third party. Thus in Governeur v. Robertson, 11 Wheat. 332, it is said:
“That an alien can take by deed, and can hold until office found, must now be regarded as a positive rule of law, so well established that the reason of the rule is little more than a subject for the antiquary. It no doubt owes its present authority, if not its origin, to a regard to the peace of society and a desire to protect the individual from arbitrary aggression.”
The fact that when a party is seeking to procure a title to mining property from the United States it is open to any third party who asserts an adverse claim thereto to suggest the objection of the alienage of the first claimant does not meet the question arising on the facts of the case at bar. In this case Wheeler and his grantees are claiming the benefit of the location made by Wood, Fisk, and Fitzpatrick, and are claiming the right to the mine, not through some adverse location, but through what was done by the original locators. Wheeler and his grantees are now claiming title to the mine through. deeds procured from the heirs of Wood, and it is certainly not open to them to rely upon the deeds as the means whereby they have procured the title to an undivided interest in the mine, and yet, when called to account for the wrongful procurement of the deeds, to deny the validity of the location made by Wood, on the ground of alienage. It was upon this view of the case
As we viewed the case, it appeared that Wheeler and his grantees were claiming title under the location made by Wood and others, and therefore, in our judgment, the case was one wherein it must be assumed that the filing the location and the possession held thereunder must be deemed to have created an interest in the property in Wood and his colocators, and this interest, thus vested, could not be collaterally attacked by parties whose rights were dependent upon the validity of the location in question. If Wood had applied for the issuance of a patent or other evidence of title, it would have been the duty of the officers of the land department to have demanded evidence of his citizenship, or of his declaration to become such, and a failure to furnish the same might have been fatal to his claim; and, if there had been an adverse claimant to the property, holding under an interfering location, the latter could insist on the objection of alienage. Such objection, if sustained, however, would only defeat the claim of the alien. It would not in any sense sustain the title of the objector. Herein lies the inequity of the position assumed by. the appellees in this cause. They claim title under the location made by Wood and others, and as to them it must be held that in fact there was vested in Wood an interest in the mining property, defeasible by the United States, but not liable to be questioned collaterally in a proceeding of the nature of that now before the court.
If, however, we are in error in this view of the law, it does not follow that a rehearing should be granted, for the reason that it is the unanimous opinion of the court that the evidence in the case shows that in fact Wood, before locating the mine in question, had declared his intention to become a citizen of the United States. The evidence shows that when Wood left Canada, in 1870, he went to Kansas, and while there he entered certain of the public lands. There is put in evidence a copy of a declaration signed by James Wood, under date of June 27, 1870, and duly recorded in Allen county, Kan., and the
In the brief submitted on behalf of counsel for appellants it is suggested that the order heretofore made requiring Richard J. Doyle to be made a party to this suit should be rescinded, mainly on the ground that making him a party may lead to disputes between the appellants and Doyle touching his rights. We remain of the opinion that Doyle should be made a party. It is due to the appellees that all parties who may be in position to assert rights to any portion of Wood’s share in this mining property should be made parties to this action, so that the one proceeding may adjudicate such rights, and the one accounting be all that is necessary. If,' as suggested, any question arises between Doyle and appellants, growing out of the deeds of trust executed by Mrs. Billings and her two sons to Doyle, the issues presented thereby need not interfere with the progress of the accounting in the main cause. The
We see no necessity for modifying the order already made in the case in any particular, and therefore the entry now made is simply that the petition for rehearing is denied.