122 F. 782 | 9th Cir. | 1903
This action was brought in the United States District Court for the District of Alaska, Division No. 1, by the appellee as plaintiff, to quiet its alleged title to the Viola placer mining claim, located on the.’Chisna river, Alaska, and to enjoin the appellants from entering thereon. In its complaint the plaintiff alleges that it is, and that for more than 20 months then last past it and its grantors have been, in the possession and entitled to the possession of the claim, specifically describing it, which is of the value of $100,000 for the gold and other precious metals contained in it; that the defendants claim an estate or interest in the claim adverse to the plaintiff, which estate or interest so claimed is without right, but in pursuance of which the defendants are preparing to enter upon the claim and carry off the gold therefrom. The appellants (defendants below) put in issue the averments of the complaint, and set up in themselves the right to the possession of the claim by reason of a location thereof, to which answer the plaintiff filed a reply, and upon the issues thus made a trial was had before the court and a jury. The jury rendered a general and special verdict in favor of the plaintiff, which verdict was
A decree was accordingly entered in favor of the plaintiff, from which the defendants brought the present appeal.
During the trial the court admitted in evidence, over the objections and exceptions of the defendants, a contract from Quint to the plaintiff of the mining claim in question, and a deed executed by Quint to the plaintiff in pursuance of such contract, which deed, however, was executed subsequent to the commencement of the action. The contract is as follows: “This instrument, made and entered into by and between Frederick Quint, party of the first part, and the Chisna Mining and Improvement Company, a corporation, party of the second part, witnesseth as follows: Whereas, the said party of the first part, by a certain contract heretofore executed and delivered, has agreed to sell, assign, transfer and convey to G. C. Hazalet and A. J. Meals the placer mining claim hereinafter described, for value received, and for certain considerations expressed in said contract, which contract has been duly assigned to the said party of the second part, Chisna Mining and Improvement Company, now, therefore, in consideration of the said contract, and of a valuable consideration to me in hand paid by the said party of the second part, I, the said party of the first part, hereby sell to the said party of the second
—-Describing the claim in question, which contract was signed by the party of the first part, and duly acknowledged by him, on the 8th day of January, 1900.
The points relied upon by the appellants are stated by them, in substance, as follows: That the court erred in admitting in evidence the contract and deed mentioned, in denying the defendants’ motion for a nonsuit, and in entering the decree.
The contract was plainly admissible, for it was evidence of the right under which the plaintiff entered into and held possession of the mining claim in controversy. Conceding that the deed executed in pursuance of the contract was erroneously admitted, upon the ground that it was not executed until after the commencement of the action, the error, if any, was unimportant if the plaintiff’s possession under the contract from the original locator of the claim conferred upon it such a title or interest therein as entitled it to maintain the action. Morton v. Folger, 15 Cal. 275, 283.
The exception of the defendants to the order overruling their motion for a nonsuit was followed by evidence? on their part in defense of the action, which waived the exception, and precluded their assigning the ruling for error, even if the motion be regarded as appropriate to the nature of the action. Union Pacific Railroad Company v. Daniels, 152 U.S. 684, 687, 14 S.Ct. 756, 38 L.Ed. 597; Columbia & Puget Sound Railroad v. Hawthorne, 144 U.S. 202, 12
The remaining point presents the only real question in the case, which is whether the plaintiff showed sufficient title or interest in the property in question to maintain the action. No one questions that in an ordinary suit in equity in a federal court, to quiet title, the complainant must show a legal as well as an equitable title, and such is the effect of many of the decisions cited by counsel. But the case here is governed by different considerations; for, in the first place, the statute of Alaska (Act June 6, 1900, 31 Stat. 333, 334, c. 786) expressly provides that “the distinction between actions at law and suits in equity and the forms of all such actions and suits are abolished, and there shall be but one form of action for the enforcement or protection of private rights and the redress or prevention of private wrongs, which is denominated a civil action.” In the second place, it is expressly provided by section 910 of the Revised Statutes [28 U.S.C.A. § 690] that “no possessory action between persons in any court of the United States for the recovery of any mining title or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States, but each case shall be adjudged by the law of possession.” And, in the third place, by section 475 of the Alaska Code it is declared that “any person in possession by himself or his tenant of real property, may maintain an action of an equitable nature against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest.” Act June 6, 1900, 31 Stat. 410, c. 786.
Under such statutory provisions, it is clear that one who first makes a valid location of a mining claim and enters into its possession acquires a title thereto, not, it is true, the legal title, which remains in the United States until conveyed by it, but such a title as the laws of the United States recognize and will protect, as against an intruder such as the evidence embodied in the record shows the defendants in the present case to have been. And decisions to this effect are sufficiently numerous, we think, to put an
After so stating the issues the court said: “The first issue to be determined is whether the complaint is sufficient to authorize the admission of evidence impeaching the validity of a patent or to sustain a judgment annulling it. This question was directly presented in the case of Ely v. New Mexico & Arizona Railroad Co. (recently decided by this court) 129 U.S. 291, 9 S.Ct. 293, 32 L.Ed. 688. That was an action commenced in a territorial court under the statutes of that territory, almost literally the same as the statutes .of Utah under which this action arose, and the
The case of Pralus v. Pacific G. & S. M. Co., 35 Cal. 30, was an action to quiet title to a quartz mining claim upon the public lands, and the court there said: “The plaintiffs, as appears by the complaint, claim only a possessory title in or upon the public lands of the United States, and the first question presented is whether such a claim or title is sufficient to authorize an action by the party in possession under the same to determine the adverse title or claim of a party out of possession. This has been frequently decided by this court in the affirmative, and we think correctly. Merced Mining Company v. Fremont, 7 Cal. 319, 68 Am. •Dec. 262; Smith v. Brannan, 13 Cal. 107; Boggs v. Merced Mining Company, 14 Cal. 279; Curtis v. Sutter, 15 Cal. 259; Head v. Fordyce, 17 Cal. 149.”
The case of the Niagara Consolidated Gold Mining Company v. The Bunker Hill Consolidated Gold Mining Company, 59 Cal. 612, was an action to quiet title to certain mining ground in which the plaintiff recovered judgment. The case was taken to the Supreme Court on three bills of exceptions, and in the course of its opinion the court said: “The third bill of exceptions presents two or three points, the first of which relates to the admission in evidence of the deed, under which plaintiff claimed to have derived its title. The deed did not describe the land in dispute, and
In Benson Mining Co. v. Alta Mining Co., 145 U.S. 428, 430, 12 S.Ct. 877, 36 L.Ed. 762, the Supreme Court quotes with approval this language of the Secretary of the Interior: “At the outset it is proper to remark that by the mining laws of the United States three distinct classes of titles are created, viz.: (1) Title in fee simple; (2) title by possession; (3) the complete equitable title. The first vests in the grantee of the government an indefeasible title, while the second vests a title in the nature of an easement only. The first, being an absolute grant by purchase and patent without condition, is not defeasible; while the second, being a mere right of possession and enjoyment of profits without purchase and upon condition, may be defeated at any time by the failure of the party in' possession to comply with the condition, viz., to perform the labor or make the annual improvements required by the statute. The equitable title accrues immediately upon purchase, for the entry entitles the purchaser to a patent, and the right to a patent, once vested, is equivalent to a patent issued.”
See, also, Crown Point Gold Mining Co. v. Crismon (Or.) 65 P. 87; Wilson v. Triumph Consolidated Mining Co. (Utah) 56 P. 300, 75 Am.St.Rep. 718; Aurora Hill Con. Min. Co. v. 85 Min. Co. (C.C.) 34 F. 515; Lindleyon Mines, § 535.
The judgment is affirmed.