Cameron v. United States

250 F. 943 | 9th Cir. | 1918

ROSS, Circuit Judge

(after stating the facts as above). [1] In effect, the contention here made on behalf of the appellants is that the Secretary of the Interior was without authority to find as a fact that the locator of the alleged mining ground never made any discovery of mineral therein, and that the ground was not mineral land, nor any authority to cancel or hold void a lode mining location or claim, and that therefore the defendants to the action were entitled to introduce testimony in the court below to show that the ground in controversy is mineral land and was properly located by the appellant Ralph H. Cameron, and further that the defendants were entitled to a jury trial upon the question of title to the ground in question.

The argument of counsel is that while the Land Department, of which the Secretary of the Interior is the head (Rev. Stats. §§ 441, 453, 2478 [Comp. St. 1916, §§ 681, 699, 5120]), had authority to grant or reject the application of the locator of the mining claim for a patent, it had no—

“authority whatsoever to destroy or in any way interfere with the separate, distinct, and independent title already held by the locator under his location, or to determine whether or not the locator had performed the acts necessary to constitute a valid location. A title being claimed in good faith, the courts, and not the Secretary or Land Department, have the exclusive right, power, and jurisdiction to determine whether such title exists or not.”

We think there is no merit in any of the contentions referred to, or in the argument made in support of them. The application here in question was made under and in pursuance of the provisions of section 2325 of the Revised Statutes (Comp. St. 1916, § 4622). No adverse claim' on the part of any other mineral claimant, authorized by section 2326 of the same statutes (Comp. St. 1916, § 4623), was, so far as appears, interposed. But on the hearing of Cameron’s application much testimony on the part of the claimant, as well as on the part of the government, appears to have been given before the officers of the Land Department respecting the character of the land applied for, and its location, some of it of a conflicting nature, the decision of which questions was not only within the jurisdiction of the Land Department, but within its exclusive determination. It is altogether too late to contend to the contrary, for nothing is better settled than that the facts in respect to the character of public land applied for under the laws authorizing its disposition, as well as the facts in respect to the performance of the acts, required by the law to be performed by the applicant, are for the exclusive determination of the Land Department. Very many decisions of the Supreme and other federal courts to that effect might readily be cited, but we think it needless to do so. And even though it be conceded that the Land Department was without jurisdiction to order, as it did in the instant case, the cancellation of the applicant’s mining location, yet its determination of the fact that the ground applied for was not mineral land in effect cut up by the roots every step taken by the applicant under the mining laws, necessarily including his mining location; and such was the decision of the Supreme Court of Arizona in the case of Cameron v. Bass, 168 Pac. 645, regarding, in part, the very ground here in controversy.

[2, 3] But in the case of Clipper Mining Co. v. Eli Mining & Land Co., 194 U. S. 220, 223, 24 Sup. Ct. 632, 48 L. Ed. 944, the Supreme Court expressly declared that the Land Department has the power to set aside a mining location and restore the ground to the public domain — saying (194 U. S. on page 223, 24 Sup. Ct. on page 633 [48 L. Ed. 944]):

“ ‘Tlie judgment of the department in the Searl placer case went only to the extent of rejecting the application for patent. The department did not assume to declare the location of the placer void, as contended by counsel, nor did the judgment affect the possessory rights of the contestant to it.’ 22 L. D. 527. So far as the record shows — and the record does not purport to contain all the evidence — the placer location is si ill recognized in the department as a valid location. Such, also, was the finding of the court, and, being so, there is nothing to prevent a subsequent application for a patent and further testimony to show the claimant’s right to one. Undoubtedly, when the department rejected the; application for a patent, it could have gone further and set aside the jdacer location, and it can now, by direct proceedings upon notice, set it aside and restore the land to the public domain.”

It is contended by counsel for the appellants that what was there said by the court was mere dictum. We do not so understand it; but, even so, this court observed regarding a like contention in the case of Daniels v. Wagner, 205 Fed. 238, 125 C. C. A. 93:

•‘It is urg-ed that this language of the court is dictum, but we do not so regard It. It contains the reasoning of the court in determining the nature of the rights of the complainant in that case. But if, indeed, it is true that the expression of such views was unnecessary to the determination of the case which was before the court, the language used sets forth the mature and unanimous judgment of the members of that court on the question of law which is involved in the case at bar, and we deem it controlling in the decision of the present case.”

The judgment is affirmed.