168 P. 645 | Ariz. | 1917
(After Stating the Facts as Above).— Plaintiff’s right to a restraining order against one about to erect a building and threatening to exercise other acts of ownership over land would depend upon the fact whether the plaintiff had the exclusive right of possession of the land affected by the defendant’s alleged acts and threatened acts. This is elementary, and certainly needs no citation of authorities in support of the proposition.
The plaintiff bases his exclusive right of possession upon the validity of the location of the Cape Horn mining claim initiated by him on the tenth day of April, 1902. His complaint sets forth the acts of location performed by him beginning with said tenth day of April, by the discovery of mineral thereon and thereafter the other necessary acts of maintaining the boundaries of the claim on the ground, the posting and recording of the location notice, sinking of the discovery shaft, etc. The plaintiff showing his right to continue in the possession of a valid mining claim alleged that every year since the date of said location to the year in which the action was commenced he performed the necessary amount of the required annual work and labor thereon; that he performed at least $100 worth of work and improvements upon said claim each of said years, including the year 1912. The facts therein set forth are sufficient to show prima facie a right in the plaintiff to the exclusive possession of the Cape Horn lode claim.
The facts set forth in the answer as conferring jurisdiction upon the general land office to determine the mineral character of such mining claim are briefly as follows: That on the twenty-fourth day of May, 1906, the plaintiff filed his application for a mineral patent for said claim in the local land office; that on the eleventh day of February, 1909, the Secretary of the Interior of the United States rejected the said application for patent, and denied the right of the said applicant, plaintiff, to the said premises; and that thereafter, on April 3, 1912, the commissioner of the general land office held said decision final.
Of course, the matter of estoppel introduced into the case by the defendant’s answer is new matter requiring a reply as such, else the facts well pleaded, setting up such new matter, are deemed admitted as true. The plaintiff has not denied the alleged decision of the Secretary of the Interior, but attempts to avoid the force of such decision: First, because the department is without jurisdiction to determine plaintiff’s right of possession; second, because in a certain action in the courts, wherein the plaintiff’s right to possession of said mining claim was involved, the court determined that plaintiff possessed the full legal right to occupy all of the ground embraced within the said location except the railroad right of way initiated by the adverse party through its predecessors in title at a time prior to the date upon which plaintiff initiated his said rights by mineral location. In other words, in the first place, the appellant does not deny the fact of an adverse decision by the general land office, but he denies the legal effect of that decision ; in the second place, he does not plead
In the ease of Grand Canyon Ry. Co. v. Ralph H. Cameron, decided February 11, 1909, pleaded by the defendant in estoppel, the department had before it the question of the character of the land embraced in the Cape Horn lode claim. Having considered the evidence and reviewed the authorities, Secretary Garfield said: “Upon the entire record, viewed and interpreted in the light of the leading authorities on the subject, the department is clearly of the opinion that the land is not shown to possess such mineral character and values as to justify the land department in awarding the desired patent.”
After noticing the fact of the establishing of the national monument and the withdrawal of the lands therein embraced, the Secretary says: “It is the further result of the evidence, and the department holds, that the several mining locations, with the apparent exception of the Magician lode claim, do not stand upon such disclosures or indications of valuable mineral in rock in place therein, prior to the establishment of the national monument and the withdrawal of the lands therein embraced, as to bring them within the saving clause of the executive order. The right of Cameron to continue possession or exploration of those claims is hereby denied, and the land covered thereby is declared to be and remain part of the Grand Canyon national monument, as if such locations had not been attempted.”
In the same case the appellant here, and applicant for patent therein, objected to the land office going into an investigation and a hearing urging as one of his grounds of objection “that in an action to quiet title, a final judgment in favor of Cameron had been rendered in a suit involving all the matters now at issue before the land department, which decision and judgment of the court, it was asserted, is binding upon the department.” The Secretary said: “The above objections are not well taken. The company’s so-called ‘adverse claim’ was dismissed, and the pendency of the company’s suit presented no bar to the hearing. The findings and judgment of the court in Cameron’s suit to quiet title as against the company are not binding upon the land department; that action not being an adverse suit.”
Both the law and the authorities sustain the conclusion reached. The citation of additional authorities is not required. However, in Barden v. Northern Pac. R. Co., 154 U. S. 324, 38 L. Ed. 992, 1001, 14 Sup. Ct. Rep. 1038, the court says:
“It is the established doctrine, expressed in numerous decisions of this court, that wherever Congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the land department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attack.”
In order to recover in this case the appellant must necessarily disregard the finding of the land department to the effect that the land embraced within the Cape Horn lode claim is nonmineral in character. The appellant bases his possessory title solely upon the location commenced on the tenth day of April, 1902. The land office has decided that the land embraced within such location is nonmineral, and therefore not subject to location as such under the mining laws. The result of that decision is that appellant’s location of the Cape Horn lode claim is void ab initio, that it never gave appellant any rights therein, and that such actual possession as appellant had based upon a mining location was a possession founded upon no right as against the government because of the nonmineral character of the land. Appellant’s possession was subject to termination by the government at any time, and was terminable as to the portion of the mining claim described in the permit issued to the appellee on
In answer to all of the appellant’s arguments put forth upon every feature of this contention, it is sufficient to say that, at the time the appellant initiated his location, and at the time he applied for a patent, the land located and applied for was not in character land subject to be disposed of under the mining laws. From the beginning it was of the character of land subject to be set aside and included in a national monument, and did not lose such character by having been covered by appellant’s mineral location, and having been in the actual possession of the claimant claiming by right of such void location. We may concede that the land department has no jurisdiction to cancel a mining location, yet the effect is the same where the land department decides that the land embraced within the boundaries of a mining location was as a fact nonmineral in character, and therefore not subject to location under the mining laws. Where such decision becomes final, certainly the claimant can assert no rights dependent thereon, and while the evidences of location are not physically brought before the department and canceled, the decision is efficient and sufficient to extinguish absolutely, and forever, all force and effect said location presumably ever had, and to destroy such location and all evidence thereof for any purpose.
Any attempt on the part of the claimant to thereafter assert any right-based upon said location, so decided invalid, is a collateral attack upon the decision and without effect. Hence the appellant has failed to show any right to the possession of the land here in question superior to the appellee’s right. No right at all which the courts can regard as a right to possession has been shown by the plaintiff.
True, the plaintiff offered in evidence a judgment of the district court of the fourth judicial district of the territory of Arizona, in and for the county of Coconino, rendered in an action entitled Ralph H. Cameron against Grand Canyon Railroad Co., wherein language appears purporting to adjudge plaintiff the owner of the Cape Horn lode claim, and
The order of the trial court is without reversible error, and should be affirmed.
FRANKLIN, C. J., and ROSS, J., concur.