4 Dakota 20 | Supreme Court Of The Territory Of Dakota | 1885
These cases, with the one following, [Pierce v. Sparks, post, ] are typical of a series of cases involving the title to a large amount of valuable property in the mining towns of the Black Hills. The two now under consideration present the same essential conditions, and will be so treated;
The answer also contained the usual prayer for further relief. To each branch of these answers, which were substantially the same in both cases, general demurrers were filed. The demurrers were sustained, with leave to answer over; but the defendants electing to stand on the order sustaining the demurrer, judgments were entered for the plaintiff, in which, by stipulation without prejudice, the damages for detention, and for use and occupation, were assessed. at one
Recurring now more specifically to the case of Deffebach. Upon the first branch of the case, in which the main question involved is the title to the premises in controversy, these facts may, for the purpose of the demurrer, be considered as admitted: First. That on February 28, 1877, the day upon which the treaty opening the Black Hills for settlement went into effect, a considerable tract of land, embracing the premises in question, was settled upon and occupied, by a population of some 2,000 people, for purposes of business and trade, and other municipal purposes, and laid out into lots, blocks, streets, and alleys, comprising the town of Deadwood, and that the premises in question, as one of the lots so laid out, then were and ever since have been occupied and possessed for municipal purposes by the defendant or those under whom he claims. Second. That on November 20, 1877, plaintiff made application to the United States land office at Deadwood for a patent for a certain p1 acer claim, embraciug these premises, and that on January 31 1878, plaintiff duly entered said lands at that office for said patent, paid the price, and received the usual receipt. Third. That plaintiff’s placer claim was not located or claimed by plaintiff or any other person until after the selection, settlement upon, and appropriation of the land as aforesaid for townsite purposes. Fourth. That on July 29, 1878, the said townsite of Deadwood, embracing within its limits the plaintiff’s placer claim, was entered at thd same land office by the probate judge of Lawrence county; under the provisions of the townsite act of 1867, in trust for the use and benefit of 'the occupants thereof, including the defendant. Fifth. That thereafter, a controversy having arisen between the plaintiff [in common with other persons similarly situated] and said probate judge, as trustee for said townsite occupants, as to their respective rights to a patent for these lands, the commissioner of the general land office, April 10, 1879, ordered a hearing before the Deadwood land office, between the parties, which hearing was restricted by the order of the commissioner to the single question of the mineral or non-
It was held’by the learned secretary under whose decision the patent issued, that, it having been established that these lands were valuable for mineral^, being placers, they “were not subject to townsite entry; and to that extent” — that is, to the extent that it embraced such lands, — “the townsite entry of Deadwood should be cancelled;” and, further, that the surface being absolutely required for the full enjoyment of the lands by either placer or townsite owners, it is not competent to insert clauses of reservation in the townsite or mineral pat - • ents. This last ruling was made in response to a claim made on behalf of the townsite occupants, that, instead of cancelling any part of the townsite entry, a patent should be issued for the whole, containing a reservation protecting “validmining claims and possessions,” and that patents should be issued to the piaintiffs and other mineral claimants, containing reservations or exceptions protecting the surface proprietorship of the town-site occupants. If this decision was correct, it disposes of that branch of the case now under consideration.
This determination presumptively establishes plaintiff’s right to the ground in controversy, and, unless it appears from the facts averred in the answer that the land department, in granting that patent, committed some error of law, whereby the defendant’s rights were prejudiced, that presumption is conclusive. The patent is evidence of a perfected right estab
It will be observed, as implied in this proposition, that, in order to avail himself of any error which may have been committed by the department, the defendant must show some legal or equitable right in himself; such that if the error should be corrected he would be entitled to the land in controversy. Cases above cited; also, Johnson v. Towsley, 13 Wall. 72. Such an error, the defendant claims, was committed by the department in restricting the hearing, upon the controversy above referred to, to the question of the mineral or non-mineral character of the land, and in ignoring the proof submitted of the prior occupancy of the premises for townsite purposes; and the defendant, therefore, claims that the plaintiff should be adjudged to hold the premises as his trustee, and decreed to convey the same to him accordingly. The propriety of this species of relief, in a proper case, may be conceded. It is in accordance with the doctrine of numerous cases in the state and United States courts. Stark v. Star, 6 Wall. 418; Quinby v. Conlan; 104 U. S. 420. Its applicability to the present case is the main ground of contention.
Passing by, for the present, the question whether the defendant could, in this indirect way, acquire a title for townsite purposes, to land not in fact embraced within the limits of any patented townsite, or whether the desired relief shonld not be sought in the name of the probate judge as trustee for all of the townsite occupants, I proceed to consider the main question arising upon this demurrer.. The policy of the government to reserve from sale and from the operation of ordinary grants, general and special, its mineral lands, has been declared in so many statutes, and by so many adjudications of the supreme court of the United States, that it is unnecessary, at this time, to enter upon,an extended review of the history of its legislation in this regard. One or two citations will be sufficient to
Prior to the year 1866, although the privilege of exploring the public lands for mineral deposits, and of extracting and appropriating the precious metals, had been conceded in various ways by the government, no statutory regulation of the privilege had been adopted, nor had the government indicated any general purpose to part with its title to mineral lands upon any conditions. In 1866, however, a statute was enacted, (14 U. S. St. at Large, 251,) which, as has already been stated in the decision of the supreme court last quoted, provided a complete system for the sale and other regulation of these, lands. The mineral lands of the public domain were thereby declared to be free and open to exploration ar d occupation, under certain conditions therein mentioned, and provision was made for the issuing of patents to those who might desire to purchase. This latter provision, in terms, applied only to veins or lodes of quartz or other rock in place. By the amendment of 1870, however, (16 U. S. St. at Large, 217,) the right of purchase was extended to placer claims; and by the act of 1872, entitled, “An act to promote the development of the mining resources of the United States,” (17 U. S. St. at Large, 91,) both of the preceding acts were practically revised and consolidated, and it was enacted that ‘ ‘all valuable mineral deposits in lands
Thus it will be seen that after providing that lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law, and that all valuable mineral deposits in public lands are open to exploration, occupation, and purchase under regulations prescribed by law, congress proceeds to prescribe how these valuable lands may be occupied and purchased, and under what terms they will be sold and title to them conveyed by the United States. And it should be noticed that the patent, when issued, is for the land, and it conveys to the patentee not only the common-law right to the full enjoyment of the surface and all below it, but also the right, in the case of a vein, to pursue that vein throughout its entire depth, even though it may pass beyond the vertical side lines of the surface location.
Such being the law in relation to mineral lands, it is contended by the defendent that such lands are nevertheless subject to entry for town-site purposes, and that if the town-site occupant has selected and occupied, for purposes of business or trade, any mineral land before it has been located or occupied for mining purposes, he is entitled to have it included in the town-site entry, and to receive a deed for it from the trustees, and that, where mining claims have been located prior to the actual entry of the town-site, patents should issue to both parties, with the respective reservations above indicated, protecting such mining claims and possession on the one hand, and the surface proprietorship and improvements of the town-
It is argued by defendants’ counsel that this section is a legislative recognition of and provision for cases where mineral lands are embraced within the limits of town-sites, and that it follows from such recognition and provision that the legislature did not intend to reserve mineral lands from town-site entry, but only to protect existing possessory rights of miners in vein or lode claims. This argument is doubtless based upon, and derives some support from, a decision of the honorable secretary of the interior, of June 6, 1876, in the case of the Town-site of Central City, Colorado, v. Mineral Claimants, to the effect that the mineral and town site laws, referring to Section 2386, permit town-site entries overlaying lode claims, and that a surface proprietorship by the town is compatible with an adverse ownership of veins of ore beneath. In accordance with this decision, patents for vein or lode claims within the limits of town-sites have been and are issued, with a clause excepting and excluding all town-property rights upon the surface, and all houses, buildings, structures, lots, blocks, streets, alleys, or other municipal improvements on the surface, not belonging to the patentees, and all rights necessary or proper to the occupation, possession, and enjoyment of the same; and town-site patents are issued embracing the same land, with the reservation of mining rights above referred to. In other words, as it seems tome, a precaution ary enactment, obviously designed for the protection of the miner in pursuance of the then already
Moreover, it is expressly provided by Section 2322 that the locators of mining claims shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations. And surely it cannot be contended that one who purchases and receives the patent of the United States for his mining claim, acquires by that deed rights less extensive than those which he has theretofore held by mere location and occupation. A sale is as much prohibited by law of congress, when to allow it would defeat the object of that law, as though the inhibition were, in direct terms, declared. Shepley v. Cowan, 91 U. S. 336.
I know of no rule of construction which would give to this Section 2386 the effect claimed for it, or disclose in it any purpose to permit town-site entry upon known mineral lands. On the other hand, I think the construction insisted upon by the defendants opposed to the letter and whole spirit of the laws relating to the disposal of the mineral lands of the United States. The case of U. S. v. Gear, 3 How. 120, is instructive upon this point. By the act of 1807 it was provided that the several lead mines in Indiana should be reserved for the future disposal of the United States, and any grant which might thereafter be made for a tract of land containing a lead mine, which had been discovered previous to the purchase of such tract from the United States, should be considered fraudulent and null.
It was contended by the defendant that, as certain reservations were made in the statute of 1834, lead mines not being among them, and as the act contained a general disaffirmance of all previous conflicting acts, lands containing lead mines were open for entry. But the court say: “The reservations in the fourth section of the act of 1834 are limitations upon the authority to sell, and not an enlargement of the general power of the president to sell lands which by law he never had a power to sell, which have always been prohibited from being sold, and which hever have been sold, except under the authority of some special statute.”' “Authority, then, to sell all lands in these districts, though coupled with the concluding words of the fourth section, can only mean all lands not prohibited by law from being sold, or which have been reserved from sale by force of law.” And, again, after stating that these two statutes did not present a case where the latter act must be held to modify or repeal the earlier, the court proceeds as follows: ‘‘The rule is that a perpetual statute, (which all statutes are unless limited to a particular time,) until repealed by an act professing to repeal it, or by a clause or section of another act, directly bearing in terms upon the particulur matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject matter, is considered still to be the law in force as to the particulars of the subject-matter legislated upon.”
Perhaps the pertinency of the foregoing observations to the case at bar may be somewhat more apparent when we consider the circumstances under which Section 2386 was enacted. It is true that it now forms a part of the entire system of laws designated as the Revised Statutes, approved June 22, 1874, of
It seems clear, therefore, in the first place, that this section applies only to town lots acquired under the provisions of the preceding sections of this chapter, comprising the acts of 1864 and 1865, just referred to. See McDonald v. Hovey, supra. And in view of the fact that at the time the section was first enacted no provision whatever had been made for the acquisition of title to mineral lands, nor had there been any statutory regulation of the possessory rights of miners, I think it equally clear that the purpose of this section was precautionary, to protect any mining rights which might be found to exist within any such town-site under these local customs and regulations, which have been frequently recognized by the government. If it be asked why congress did not then expressly prohibit the acquisition of title to mineral lands under the provisions of that act, it may be answered, for the same reason, that the act of 1834, above referred to, contained no such prohibition,—
I can find no warrant whatever in this section for the claim of the defendant, that lands known to contain valuable mineral deposits are, nevertheless, open to town-site entry. The construction I have given it is in harmony with the entire policy of the government respecting its mineral lands, and, at least, does not lead to the anamoly of two conveyances of the same land to different parties for different purposes, each requiring, for that full enjoyment contemplated by the law, the exclusive possession of the entire surface. But it is insisted by the defendant that Section 2392 affords further manifestation of the legislative intent to permit town-site entries upon mineral lands; and this for substantially the same reason before urged, viz., that because certain specified mining rights are expressly protected, mineral lands in general are thereby opened to entry,— a .sort of reversal of the old maxim, which would make it read, exclusio unió est expressio alterius, with a new and enlarged meaning. Let us examine this section. Its first sentence was enacted March 2, 1867, as the concluding proviso of an act for “the relief of the inhabitants of cities and towns upon the pub-
Section 2318 speaks of ‘ ‘lands valuable for minerals;” Section 2319, of ‘‘valuable mineral deposits;” Section 2323, of tunnels run “* * * for the discovery of mines,” (here equal to mineral deposits;) Section2325, of land located for “valuable deposits;” and Section 2392, of ‘ ‘mines of gold, ” etc.; and all these, I think, refer to substantially the same thing, and embrace both veins or lodes and placers. I think it clear, also, that the proviso was inserted solely in pursuance of the usual policy of reservation and exception of lands valuable for minerals, to prevent the acquisition of title to such lands under the provisions of the town-site act, which designates as open to entry for town-site purposes thereunder 1 ‘any portion of the public lands * * * settled upon and occupied as a town-site, not subject to entry under the agricultural pre-emption 'laws. ” Jtiev. St. § 2387. So far, therefore, from strengthening the claim o± the defendant, this proviso, as it seems to me, utterly defeats it, for it makes it incumbent upon him, before he can obtain a patent for this land for town-site purposes, to show affirmatively that the land does not contain mines of gold, etc. So, at least, the supreme court of the United States has held, in a case which seems to present just this question, — the case of Secretary v. McGarrahan, 9 Wall. 298. The act to quiet land titles in California, July 23, 1866, provided that “where persons in good faith, for valuable consideration, have purchased lands of Mexican grant
The meaning of the term “mining claim” has been defined by the supreme court in the case of Smelting Co. v. Kemp, 104 U. S. 649, as follows: “A parcel of land containing precious metals in its soil or rock;” and as the subject of the argument in that cause was a placer claim, of course the definition of the court included such claims. True, at the time this proviso was first enacted placer claims had not as yet been the subject of express statutory regulation or recognition, but they formed a very important part of the mining industry of the country, and as the words used are broad enough to include them, there is every reason to suppose that they were within the immediate contemplation of the makers of the law. Their purpose, too, seems clear. It was evidently similar to that already pointed out with reference to Section 2386, to protect any mining claims which might be found to exist within the limits of any town-site. Possibly they were unnecessary for this purpose, and were introduced out of abundance of caution.
The case of Morton v. Nebraska, 21 Wall. 660, presents a similar instance. The enabling act of Nebraska, April 19,
I will cite but one more case, and it is one which seems to me conclusive upon the question raised by this demurrer. It is the case of Steele v. Smelting Co. 106 U. S. 447. Speaking of the frequent discovery of mineral deposits “within the limits of what may be termed the site of the- settlement or new town, Justice Field, delivering the opinion of the court, says: “To such claims the miner acquires as good a right as though his discovery was in a wilderness removed from all settlement, and he is equally entitled to patent for them. ” Again, referring in express terms to these very sections, — 2386 and 2392, — he says: “The acts of congress relating to town-sites recognize the possession of mining claims within their limits, and forbid the acquisition of any mine of gold, silver, cinnabar, or copper within them under proceedings by which title to other lands
It is unnecessary to pursue this subject further. I have considered it somewhat at length because of the great importance of the issue, and also because, so far as I am aware, this precise question has never come before any of our courts for adjudication. We think it clear that no title can be acquired unoer the provisions of the town-site law to lands known to be valuable for minerals, but that such lands are free and open for exploration, occupation, and purchase for mining purposes. And, although the late secretary of the interior was manifestly correct in holding that the whole surface is necessary to the full enjoyment of the lands by either placer or town-site owners, yet that circumstance can hardly be considered as of much importance in the determination of this case, because the statute guarantees to the patentee of a mining claim the full and enclusive possession and enjoyment of the land,with all that it contains, and any exception or reservation in any such patent, not expressly provided by statute, would be without authority of law and therefore void. It follows from these views that the defendants are in no position tp assail plaintiff’s title, since, if his patent were out of the way, they would not be entitled to one. We conclude that
This brings me bo the consideration of the demurrer to that portion of the answer which sets up as a counter-claim the claim of the defendants for the value of improvements erected by them uoon the land. The principal allegations of the answer in this behalf, besides those already stated, are: (l) That on the twenty-eighth of February, 1877, the day when, by the removal of the Indian reservation, the Black Hills country was open to legal settlement, one Henry B. Beaman, being one of the inhabitants of said town-site of Deadwood, was in the peaceful and lawful possession of the land in question, claiming to be the owner, and having improvements thereon; (2) that on the 6th of July, 1878, Beaman, being still in the lawful, quiet and peaceful possession of this land, and claiming title thereto, sold and conveyed it by good and sufficient deed to the defendant, who purchased the same in good faith, and for a valuable consideration, and has ever since occupied and possessed the same, holding under said deed, and claiming title thereto in good faith, adversely to plaintiff’s; (3) that before plaintiff acquired title to the land, defendant, in good faith, made certain permanent improvements on the premises, viz., a two-story frame building and cellar, and other improvements, of the value of §1,300; (4) that the value of the land, aside from the improvements, does not exceed §100.
This claim was apparently based upon Section 641 of the territorial Code of Civil Procedure, which provides that “in an action for the recovery of real property upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a counter-claim by such defendant.” The three following sections regulate the'practicein such cases. Very little was said by appellant’s counsel upon the argument on this branch of the case. His original brief makes no refer
As to whether any application of the statute to these cases would bring it into conflict with the provisions of the organic act first mentioned, as being an interference with the primary disposal of the soil, may, perhaps, be thought to depend somewhat upon the further question, when did the legal title of the premises become vested in the plaintiff? Was it before or after the improvements were made? For it is manifest that, standing by itself, the territorial statute could have no operation or effect so long as these lands were the property of the United States, and that the patent of the government would carry with it the full and unincumbered title, free from every adverse claim, since it would be impossible for any one to hold ' adversely or in good faith against the government, and hence to acquire any right, legal or equitable, to compensation for improvements erected while the title was yet in the.United States. Steel v. Smelting Co., 106 U. S. 456. It is supposed, however, that the statute may derive some vitality from an act of congress passed June 1, 1874, (Supp. Rev. St. 25,) entitled, “An act for the benefit of occupying claimants,” which provides “that when an occupant of land, having color of title, in good faith, has made valuable improvements thereon, and is, in the proper action, found not to be the rightful owner thereof, such occupant shall be entitled in the federal courts to all the rights and remedies, and,
Now, it is evident that plaintiff must have acquired title either by his entry, January 31, 1878, or by his patent, January 31, 1882. To which of these dates does the claim of the defendant refer? Obviously not to the former, because defendant himself acquired no title until nearly six months after that. It must, therefore, refer to the latter, and by well settled rules of pleading it may be considered, in favor of the plaintiff, that the alleged improvements were made just prior to the last-mentioned date, and therefore at or even after the time when by the contest in the land office, and the decisions rendered there
In cases where the courts have had occasion to define who were included in the designation‘‘subsequent purchasers and incumbrancers in good faith,” and similar phrases, the.rule has been laid down with still greater strictness. Chancellor Kent thus states the rule in equity in this class of cases: “If a purchaser wishes to rest his claim on the fact of being an innocent bona fide purchaser, he must deny notice, even though it be not charged, and he must deny it positively and not evasively; he must even deny fully and in the most express terms every circumstance from which notice could be inferred. Denning v. Smith, 3 Johns. Ch. 345.
A further question is suggested as arising out of the circumstance that defendant’s claim is not, and, by his own showing, was not. before the land office a claim of full title to the premises in controversy, but only that the patent to plaintiff should contain an exception or reservation of the town property rights, and all houses, buildings, lots, blocks, streets, alleys, and other improvements, and that he now concedes the right of the plaintiff to mine and extract the precious metals, so far as this can be done without endangering the surface improvements. It may well be doubted whether such a claim could be said to possess that adverse character contemplated by the statute, since as we have already observed, there is no law under which the surface proprietorship could be conveyed to one and the minerals to another; but the principles already enunciated in respect to the essential element of “good faith” must control the disposition of these cases. Upon this branch of the cases, as upon the other, we think the judgment of the district court was correct, and it is therefore affirmed.
