17 S.D. 72 | S.D. | 1903
This is an action to quiet the title to certain town lots in the cityof Deadwood. It is alleged in the complaint, in substance, that the plaintiff, a municipal corporation, and the county judge, are the owners in possession and entitled to the possession of certain town lots therein described, and that the defendants cl aim and assert some estate and interest in and to the' said premises adverse to the plaintiffs. The plaintiffs also allege in their complaint that they claim title to the said property under and by virtue of the entry of the same as a town site in 1878, and confirmed.by patent in 1886, and they pray for judgment that the title of the plaintiffs to said lots may be declared to be perfect and valid, and that the defendants and all persons claiming under them be forever barred from asserting or claiming any interest in the said property, or any part thereof. The defendants, in their answer, admit the entry of the town site of the city of Deadwood, and the issuance of the patent therefor, and that the lots in controversy are within the exterior boundary of the said town site, but deny that the said patent conveyed to or vested any title, either legal or equitable, in the plaintiffs, or either of them, to the said lots embraced or covered by - those certain mining claims or locations designated and described as the “Infant Lode,” the ‘ Caroline Lode,”- the “Yellow Bank Extension Lode,” the General Thomas Francis Maher Lode,” and ohe “Kalamazoo Lode,” all adjoining and situated on the divide be-' tween City creek and Deadwood creek, within the corporate limits of the said city of Deadwood; that at the date of the en
For the purposes of this decision we must assume that the facts alleged in the answer are true. It will be observed that by the answer the defendants allege that they are the owners of certain mining claims located by them, their grantors, and predecessors in interest since the entry and patent of the town’ site, but that said mining claims were known to contain valuable deposits of gold-bearing quartz rock, and were claimed, located, worked, and held under the then existing laws prior to and at the time the town site of Deadwood was entered for patent.
The appellants contend: (1) That the answer in this case alleges that the premises in controversy were known to contain valuable deposits of gold-bearing ore before and at the time of the town site entry by the county judge, and that by reason thereof the mining claims in controversy were excluded from the town site patent. (2) That the allegations of the answer clearly show that the mining claims in controversy were located, worked, and held under the then existing laws, as such mining claims, prior to and at the time of such entry, and
It is insisted by the respondents: (1) That the town site patent cannot be attacked by the defendants, as their rights, if any, in the land, attached after the issuance of the patent, and that it can be assailed only in a direct proceeding by the United States. (2) That, as the defendants’ alleged rights were not initiated until after the issuance of the town site patent, they are not in a position to assail that patent in this collateral proceeding on the ground that the lands embraced within the patent were known to be mineral at the time of patent. *
As we have seen, the town site entry was made July 29, 1878, and the patent issued November 17, 1886. The first mining claim of the defendants was alleged to have been located April 13, 1890, and the last March 7, 1893. While it is alleged in the answer that the mining lodes claimed by the defendants were located prior to the entry of the town site and the issuance of the patent therefor, defendants do not' claim to have succeeded to the rights of any of the older locators,, and they do not plead those former mining locations for the purpose of in any way connecting themselves therewith, but only for the purpose of showing that the land was excepted from the patent. It will be observed, therefore, that the mining claims upon which the defendants predicate their claim of title and right of possession were all located, their boundaries marked, and were recorded long subsequently to the entry of the town site and the issuance of the patent upon said entry.
The facts alleged in the case of Carter v. Thompson, supra, are very analogous to those alleged in the complaint in the case at bar. In that case the plaintiff made the location of a placer claim within the limits of the patented town site of Hel'ena, and there were allegations in his bill that the premises in dispute were mineral lands, and were known to be such at the time and prior to the application to enter such land under the town site law. Plaintiff’s location was made in September, 1893, and the town site patent was issued in June, 1872. The demurrer to the complaint was sustained by the United States district court, and the appeal dismissed. In the opinion sustaining the demurrer thaj court says: “It seems to be claimed that, as the lands were known to be mineral before the application or issuing of the patent, therefore it is void. The question as to whether the land was mineral or not was one upon which the land department passed in issuing the patent to Miers F. Truett, the probate judge.” The court, after reviewing a number of decisions involving this question, says: “The conclusion is that the land granted to Miers F. Truett in trust for the Helena town site must be classed as non-mineral. It was so determined by the land department. This determination cannot be attacked in a collateral proceeding. * • * * If any fraud was practiced, or any mistake of law or fact occurred in issuing the patent to the town site, the complainant cannot take advantage of this. He had no rights at the time to be affected by either the fraud or mistake. ' * * * Complainant, therefore, by his own showing, presents facts to the court which shows that he is not entitled to recover in this
The patent to the Deadwood town site passed the entire title as against any subsequent locators, and the patent cannot be attacked collaterally in this action. The land officers were charged with the duty of ascertaining whether the lands were subject to be patented as a town site, and their determination is conclusive, at least in this action. As is said by the Supreme Court of the United States in Davis v. Weibbold, supra, no provision has been made for the location of valuable mineral deposits in lands which have ceased to be public, and
We are of the opinion therefore, that the circuit court was right in sustaining the demurrer, and the judgment and order-s of that court are affirmed.