70 F. 455 | 9th Cir. | 1895
The Waterloo Mining Company, on the 12th day of September, 1889, made an application at the United States land office at Los Angeles, Cal., for a patent for the Red Jacket quartz lode mining claim. John S. Doe, the appellant in this case, within 60 days thereafter, — *the time allowed by law, — filed in said land office his adverse claim to the claim made in the application of said company, in which he, the said Doe, claimed to be the owner of a portion of the premises described in said application as the
From the evidence it appears that on the 26th day of March, 3881, one V. II. Xewbill made five discovery of a mineral-hearing vein or lode in what was called “Crapevine 3lining District,” Ban Ber-nardino county, Cal On that day lie posted a notice upon said premises known as the “Red Jacket” lode or claim, claiming- the right to locate 1,500 feet on said lead and 300 feet on each side of the same, and also claiming ihe right to have 20 days from said date in which to complete his boundary monuments. Subsequent to the said 20 th day of March he went, to the said premises "with the view of marking the boundaries of bis claim, but owing to sickness was prevented from so doing. II also appears be had some doubts as to bow he should locate his claim. On the U.th or 12th of April, following-, he made an agreement with O. i>. Wallace, H. O. Parks, and J. R Darrell io the effect that if they would complete his location on said ground he would give them one-half of said claim. In accordance with said agreement, on one of said dates these parties did mark the boundaries of said lied Jacket claim by placing along the same, at the sides and ends thereof, some seven monuments of stone, about 2-1 feet high. They posted a notice on the center monument on ihe east end line, describing the same, and which was a location notice. On some of ihe other monuments notices were placed indicating the corners of the location. The said location notice names the claim as the “Red Jacket Bold, Silver, and Xickel Quartz Mining Claim.” The name in ihe Kewbiil notice was the “Red Jacket Claim.” On the 6tli day of April, 1881, 6 days before Parks, Wallace, and Farrell marked flic boundaries of their location, and some 11 or 12 days after Wewbill had posied Ms notice on the same, T. C. Warden and Dr. (1. W. Yager located what they called the “Mammoth Lode.” This included, a. part of the Red Jacket lode claim. There is no contention but that the boundaries of both claims'were properly marked.
The first contention is that ihe location cf the Red Jacket gold, silver, and nickel mining claim is not a completion of the claim made by MewMIl. The supreme court of California, upon the same evidence, in the case of Newbill v. Thurston, 65 Cal. 419, 4 Pac. 409, held that it was not. With the highest: respect for that distinguished court, I cannot come to the same conclusion. Xewbill undoubtedly made some kind of a mineral discovery on the ground located. Tie posied a notice on this ground claiming the right to locate some 1,500 feet on the same, — 500 feet in one direction and 1,000 feet in
There is a considerable space in the brief of appellee devoted to maintaining that the notice and acts of Newbill were a sufficient location of the Red Jacket claim; that the one stake he placed upon the ground, claiming 500 feet one way and 1,000 feet in another way on the vein discovered, with 300 feet on each side of the same, was a sufficient marking of the boundaries thereof. In the location of quartz lodes, before the mineral act of 1872, such a mode of location was common. ' Since that date, I know of no instance in which such a location has been sustained. Since that date, it has generally been held that in some way the location should be made in the form of a parallelogram, and the location so marked that its boundaries can be readily traced. The cases of Golden Fleece, etc., Co. v. Cable Consol., etc., Co., 12 Nev. 312-330; Book v. Mining Co., 58 Fed. 106; Gleeson v. Mining Co., 13 Nev. 442-558; Holland v. Mining Co., 53 Cal. 149; Gelcich v. Moriarty, Id. 217,— maintain- fully that such a location as is claimed for Newbill is insufficient. It is also claimed that the above-named cases decided by the supreme court of California were overruled by the same court in the.case of Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361. I do not think this should be asserted. The question presented in the last case was the sufficiency of a location notice under the local rules of the district,- and not as the marking of the boundaries of a claim. Certainly it does not purport to overrule the former cases. Many cases might be cited from other states and territories showing that such a location is invalid.
Appellant claims that the Newbill right was abandoned because he allowed Parks, Wallace, and Farrell to become joint locators with liim. There was no intention on his part to abandon his rights. Certainly the contrary appears in his contract with these parties. Abandonment rests, as a rule, in intention. Newbill, at the time
The next point presented is, were the boundaries of the claim marked and the location completed within a reasonable time alter the discovery by Newbill? In his testimony explaining the claim he made in his notice, of 20 days in which to complete his location, New-bill said:
“Tito reason Avas that 1 understood tliat it Avas a general understanding that Ave wore allowed twenty days to complete our location. 1 was aiming to comply with the custom and hiAV, and X thought having that twenty days was according' to the custom and law. I Avas of the opinion that it was in the law, but as I saw in the— (Interrupting): .lust give yotir reasons. A. My reason at that time Avas I thought it AA'as embraced in the la at. I knew it to be a custom, — Irav and custom together, — and would try to comply AVifh them. The Court: Q. That is, you thought there AA-as a law and custom allowing twenty days? A. Ves, sir. Q. Was that the custom in that section oí the country ?”
This, for some reason that does not fully appear, was never an-SAvered.
There was no objection to proving that there Avas a custom in the Grapevine mining district allowing a discoverer of a mineral-hearing A'ein 20 days after his discovery in which to fully complete his location of his claim. Section 2324, Rev. St., gives "the miners of each mining- district” the right “to make regulations not in conflict with the Iuavs of the United States or with the laws of the state or territory in which the district is situate governing- the location of mining-claims.” Such a regulation may be eA-idenced by a written rule, or by an observed custom in the district, not in writing. Flaherty v. Gwinn, 12 Morr. Min. R. 605; Harvey v. Ryan, 4 Morr. Min. R. 490. Whether this evidence would warrant a court in finding that there Avas any custom in Grapevine mining district guing any time for the completion of the location of a mining claim after the discovery of a A'ein is doubtful. There is nothing in the evidence which confines the custom to that district, although given in connection with making a location in that district. The question which, if answered, Avould have made this point clear, for some reason, was not answered. The court found there was no such rule or custom. Under the evidence this court would not be warranted in reversing that finding. There is no doubt but the diseoA'erei* of a mineral A'ein should have a reasonable time after the discovery of his vein in which to complete his location embracing the same.
Upon the question of the reasonable size of a mining claim a gen
It is urged that the notice posted by Xewbiil was not placed upon the vein located. The evidence is that it was placed upon a. parted the said vein, — a spur thereof. It was not necessary that the notice should be j)laced upon the croppings of the vein. If near by the same, it would be sufficient if it indicated the vein sought to be located. Phillpotts v. Blasdel, 4 Morr. Min. R. 341, Parks and his associates had no trouble in determining what was the vein Newbill sought to locate.
There are some nine assignments of error in the transcript. In the brief seven additional assignments of error are made. Ap-pellee maintains that the court should not consider these additional assignments; that rule 11 of this court (47 Fed. vi.)
The thirteenth assignment of error is that the decree was erroneous because it does not appear in the pleadings, anywhere, that the stockholders of the Waterloo Mining Company, the defendant, were citizens of the United States. The other additional assignments of error come under heads that have already been considered. There is no doubt that the court may consider the question of jurisdiction, although not made the subject of an assignment of error. It seems to be contended that it was necessary for the court to determine wdiether or not the appellee w as entitled to a patent from the United States; that without such determination the object sought by the suit has not been obtained, and the land department properly instructed as to the rigid s of an applicant for a patent. If this is a correct view of the law, this point should be considered.
“That if in any action brought pursuant to section twenty three hundred and twenty-six of the Revised Statutes title to the ground in controversy shall not be established by either party the jury shall so find and judgment shall be entered accordingly.”
When a cause is tried by a court without a jury, undoubtedly the same duty falls upon it as upon a jury, under said statute. It will he seen that it is only when title to the ground shall not be established by either party that the verdict shall be against both. If one of the contending parties should establish title, — that is, the right to possession of the premises in dispute on account of a compliance with the mining laws of the United States and the laws of the state and the rules and customs of miners, — then there is no authority in the statute to find against the United States, and that the party, so establishing title is entitled to a patent from the United States. The suit does not purport to be one against the United States. Tire United States is not named as a party, No authority is given by the statute to sue the United States in such a matter. The application for a patent for mineral land is made to the land department of the United States. Ultimately that department must determine the right to the patent. The trial of the right to. possession of a given tract of mineral land is a proceeding in aid of that department. It was not intended that when this issue was presented to a court it should operate as a transfer of the whole case made by the application, and that thereafter the land department would have nothing to do but to carry into effect the judgment of the court.. A state court of general jurisdiction has the power to determine this issue, and su'cli courts are often called upon to try causes arising under the said section 2326. Can it be supposed that it was intended that under the said statute such a court would have the power to determine whether or not the United States should issue a patent to any applicants? The power to sue the United States in a state court should rest upon some positive statute. It cannot be inferred from such a statute as the one in question. For these reasons I do not think this assignment of error can be sustained.
The question presented in the thirteenth assignment of error affects the jurisdiption of the lower court and of this court. It does not appear in any of the pleadings or in the evidence that the stockholders of the Waterloo Mining Company were, all or any of- them, citizens of the United States. The plaintiff would not be benefited by this omission if it were true that none of said stockholders were citizens. It is alleged in the answer that Newbill and his colocators were all citizens of the United States. This fact is stated in their location notice, and that is in evidence in this case. Newbill and Parks both testify to their citizenship. An affidavit of one Emil A. Sanger, in evidence; states that all of said locators were citizens of the United States. The grantees of these locators would be entitled to the possession of the premises located, as against plaintiff.
“Proof of citizenship under this chapter may consist in the case of an individual of his own affidavit thereof, in the case of an association of persons unincorporated, of the affidavit of their authorized agent made of his own knowledge or upon information and belief, and in ilu; case of a. corporation organized under ¡he laws of the United States or of any state or territory thereof by the filing of a certificate of incorporation.”
The question might arise, why would the certificate of incorporation establish the citizenship of the stockholders? In considering the question of jurisdiction in the federal courts, it is an established rule that, when a corporation organized under state laws is a party, it is conclusively presumed that the stockholders thereof are all citizens of that state. Muller v. Dows. 94 U. S. 445. Congress was familiar with this rule, and it seems probable intended to establish a similar rule under the mineral land act of 1872. The practice in the United States land office has been, I think, universal, not to require of a corporation seeking to patent mining ground proof of the citizenship of its stockholders, other than by the production of a certified copy of articles of incorporation. After the passage of the act of March 3, 1887 (24 Stat. 477), which provided that no corporation, more than 20 per cent, of the stock of which was owned b.y persons not citizens of the United States, should acquire real estate in the territories of the United Slates or the District of Columbia, corporations making application to patent mining claims in a territory were required to show that 80 per cent, of their stockholders were citizens of the United States. But this rule never prevailed under the mineral act of 1872 anywhere. It would have been a great hardship on a corporation to have had to prove that all of its stockholders were citizens of the United States. The practice in the land department of the Uni led States under this statute should have great weight in construing it. Hahn v. U. S., 107 U. S. 402, 2 Sup. Ct. 494; U. S. v. Moore, 95 U. S. 760; Brown v. U. S., 113 U. S. 568, 5 Sup. Ct. 648. Considering the statute and the practice thereunder, I think the citizenship of the stockholders of the Waterloo Mining Company was sufficiently established. It was not necessary to allege in the answer what was conclusively presumed from the facts alleged. Hence it was not necessary to
With these views of the law in this case, I think the decree in this case should be affirmed, and it is so ordered. The decree is affirmed, with costs of appellee.
11 C. C. A. cii.