Heydenfeldt v. Daney Gold & Silver Mining Co.

10 Nev. 290 | Nev. | 1875

Lead Opinion

By the Court,

Hawley, 0. J.:

This is an action of ejectment to recover a portion of tlie west half of the southwest quarter of section sixteen, township sixteen, range twenty-one east, Mount Diablo base and meridian. The appellant claims title under a patent issued to his grantors and predecessors in interest by the State of Nevada, on the 14th day of July, 1868, under and by virtue of the statute authorizing the conveyance of lands granted to the State by the seventh section of the enabling act of Congress, entitled “An act to enable the people of Nevada to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States,” approved March 21, 1864, which reads as follows: ‘ ‘ That sections numbers sixteen and thirty-six in every township, and where such sections have been sold or otherwise disposed of by any act of Congress, other lands equivalent thereto in legal subdivisions of not less than one-quarter section, and as contiguous as may be, shall be and are hereby granted to said State for the support of common schools.” (13 U. S. Stat. 32; Stat. 1864-5, 37.) The respondent claims title under a patent issued to it by the United States, on the 7th day of March, 1874, under and by virtue of the act of Congress entitled “An act granting the right of way to ditch and canal owners over the public lands and for other purposes,” approved July 26, 1866 (14 U. S. Stat. 251), the act amendatory thereof, approved July 9, 1870 (16 U. S. Stat. 217), and the act entitled “An act to promote the development of the mining resources of the United States,” approved May 10, 1872 (17 U. S. Stat. 91).

The land in controversy is mineral land, and the respondent is in possession of the same and is engaged in conducting and carrying on the business of mining thereon, and has erected improvements thereon for mining purposes of the value of over eighty thousand dollars. In the year 1867, prior to the date of the survey, or approval of the survey of said land by the government of the United States, the grantors and predecessors in interest of respondent entered upon the land for mining purposes, and claimed and occupied the same in conformity with the laws, customs and usages of miners in the locality and mining district in which said land is situate, and were so possessed and engaged in mining thereon when said land was first surveyed, and when this State issued its patent to the grantors and predecessors in interest of appellant.

The case is one of unusual interest, and involves principles of great importance. It has been ably argued by learned counsel, and has received the careful attention of this Court. Two leading questions are presented for our consideration in determining the legal rights of the respective parties. First. When does the title vest in the State to the sixteenth and thirty-sixth sections granted by the seventh section of the enabling act? Second. Does the patent issued by this State include the mineral lands?

After a thorough examination of all the authorities cited by counsel, we do not deem it necessary to decide whether the grant is one in prcesenti or in futuro. Assuming, for the sake of the argument, that the proper construction to be given to the seventh section of the enabling act is, as claimed by appellant, that the grant took effect absolutely upon the admission of this State into the Union, and that the title to said lands then vested in this State, although subsequent proceedings might, as was said in Schulenberg v. Harriman (21 Wall. 62), “be required to give precision to that title and attach it to specific tracts,” and likewise assuming that Congress had no power after the admission of this State into the Union to impair the grant, without the consent of this State; still, we think it must be admitted that Congress could thereafter, with the consent of this State, prior to the disposal by the State of any of the lands embraced in said sections, and at any time prior to the survey, change the terms of the grant, and we are of opinion that by the subsequent act of Congress and the act of acceptance by the legislature of this State, the mineral lands were reserved from sale by the government of the United States, witli tbe consent of this State, and that the patent issued by this State did not, upon the admitted facts of this case, include the mineral lauds in controversy. If we accept the definition announced by text-writers, “that a grant is a contract; executed, it is true, but still a contract” (3 Parsons on Contracts, 527), and it was so decided in Fletcher v. Peck (6 Cranch, 87), it would be within the power of both parties, by mutual consent, to modify or change the terms of the contract after its execution; and if we adopt the rule as stated by Field, J-, in Schulenberg v. Harriman, supra, that “ a legislative grant operates as a law as well as a transfer of the property, and has such force as the intent of the legislature requires,” the same principle follows, and the law could be changed or modified at any time by the consent of both parties before the rights of others attached, certainly this must be true unless there is some constitutional provision against such acts of legislation.

In Higgins v. Houghton (25 Cal. 255), where it was held that the State of California, by virtue of the grant of March 3, 1853, which in some respects is similar to the grant under consideration, “became the owner of the sixteenth an'd thirty-sixth sections absolutely, not only as to quantity, but as to position also,” the court impliedly recognized the fact that it was within the power of Congress and the State by mutual agreement to change the provisions of the grant. After stating that there had been no legislation by Congress prior to the grant which would interfere with the conclusions reached in said case, the court said: “And if there has been any legislation since the grant that conflicts with the conclusion, it must be null and void unless, indeed, it has been acceded to by the grantee.” Here such subsequent legislation was had by Congress and it was acceded to by the grantee.

After the sixteenth and thirty-sixth sections had been granted, and after this State had been admitted into the Union, Congress passed an act entitled “An act concerning certain lands granted to the State of Nevada,” approved July 4, 1868. After confirming tbe appropriation made by tbe Constitution of tbis State to educational purposes of tbe land granted to tbis State by tbe law of September 4, 1841, and providing for tbe appointment of a “surveyor-general for Nevada,” wbo was to perform certain duties therein prescribed under tbe direction of tbe secretary of tbe interior, it was further enacted: “That in extending the surveys of tbe public lands in the State of Nevada, tbe secretary of tbe interior may, in bis discretion, vary tbe lines of tbe subdivisions from a rectangular form to suit tbe circumstances of tbe country; but in all cases lands valuable for mines of gold, silver, quicksilver or copper, shall be reserved from sale.” (14 U. S. Stat. 85-6, Sec. 5.) Tbis State in accepting tbe grant unequivocally consented to tbe reservation by Congress of tbe mineral lands, and accepted tbe grant with all tbe conditions and reservations mentioned in said section. The act, passed by tbe legislature of tbis State, entitled “An act in relation to and accepting tbe lands granted to tbe State of Nevada by the government of tbe United States,” approved February 13, 1867, is explicit upon tbis point. It reads as follows:

“ Sec. 1. Tbe State of Nevada hereby accepts tbe grants of lands made by tbe government of tbe United States to tbis State, in tbe following acts of Congress, to wit: ‘An act donating public lands to tbe several States and Territories which may provide colleges for tbe benefit of agriculture and tbe mechanic arts,’ approved July 2, 1862, as amended and approved April 14, 1884, and as extended July 4, 1866, by an act entitled ‘An act concerning certain Ian els granted to the State of Nevada,’ upon tbe terms and conditions in said acts expressed, and agrees to comply therewith.

“Sec. 2. Tbe State of Nevada hereby accepts tbe grants of lands made by tbe government of tbe United States to tbis State, in tbe act of Congress entitled ‘An act concerning certain lands granted to tbe State of Nevada,’ approved July 4, 1866, upon tbe terms and conditions in said act expressed, and agrees to comply therewith.

“Sec. 3. Tbe State of Nevada hereby accepts all grants of public lands heretofore made by the government of the United States to this State, upon the terms and conditions so granted, as modified in the act of July 4, 1866, above in this act referred to.” (Stat. 1867, 57.)

This act was passed prior to the survey, by the United States, of the land in controversy, which, from the record in this case, is shown to have been made in August, 1867.

This State, by its act of acceptance of the grant as modified by the act of Congress of July 4, 1866, was estopped from thereafter claiming title to any lands valuable for mines of gold, silver, quicksilver or copper, for such lands were, by said act, expressly reserved from sale. It is evident that when Congress passed the act of July 4, 1866, it thought that by the effect of the grant and the law of the event, that this State would not acquire an absolute ownership in the lands until the surveys were made; but even if it was mistaken as to the legal effect of the grant, its action received the sanction and approval of this State before the title of the State, under any rule of construction, absolutely attached to any specific tract of land. If it be conceded that the State had a vested title to the mineral lands contained in the sixteenth and thirty-sixth sections, prior to the act of February 13, 1867, it is certain that by said act it relinquished its rights -thereto, and thereby agreed to accept other lands in lieu thereof.

The passage of said act was a recognition by the legislature of this State of the validity of the claim made by the government of the United States to the mineral lands.

Whatever might, therefore, be the construction of the language of the enabling act, as interpreted from the act itself, we think it is controlled by the subsequent legislation we have referred to, and that the title of the State to the land conveyed to appellant’s grantors was, at the time of the survey thereof, subject to the terms and conditions imposed by the act of Congress of July 4, 1866, and as the portion of said land in controversy in this action was then “rich in minerals,” and occupied and claimed by respondent’s grantors for mining purposes, the grantors of appellant acquired no title thereto by virtue of the patent issued by this State.

Against the views we have above expressed, counsel for appellant make three objections: 1. It is first argued that the act of July 4, 1866, is prospective in its terms, and that it only applies to future acts or grants. We think that the act, when read entire, is susceptible of but one construction. It refers to lands granted prior to, and at the time of, the passage of the act. The title of the act clearly indicates that it was the intention of Congress to make the act apply to lands already granted: “An act concerning lands granted to the State of Nevada;” not lands to be thereafter granted, but lands granted by that and other prior acts of Congress. The construction we have placed upon this act must certainly be correct, if it be true, as was argued by appellant’s counsel upon another branch of this case, and held to be the law in Whitney v. Whitney (14 Mass. 92), that we should not be encouraged to direct our conduct, in arriving at the intentions of the legislature, “ by the crooked cord of discretion, but by the golden metewand of the law;” that we are not to construe statutes by equity, but to collect the sense of the legislature by a sound interpretation of its language, according to reason and grammatical correctness. But we do not think there is any room for argument as to its meaning. It applies to all grants made by Congress to the State of Nevada, where the lands granted had not been surveyed by the government of the United States, and included the grant mentioned in the enabling act, and such was the evident understanding of the legislature of this State when it passed the act of acceptance, approved February 13, 1867.

2. It is argued that the act of Congress applies only to the public lands then belonging to the United States, and it is claimed that inasmuch as the sixteenth and thirty-sixth sections had already been granted, the act did not affect the title to them, as they were no longer public lands. An exámination of the various acts of Congress relative to the surveying of the public lands, has convinced us that the word public is applied by Congress to all the unsurveyed lands, whether the same or any portion thereof had been previously granted or not.

All lands are public within the meaning of that word, as used in the act referred to, until the survey is made. This is necessarily so, because, until the surveys are made, the rights of the grantee to any specific tract of land could not be ascertained; hence it is that the word public is used to distinguish the unsurveyed from the surveyed and segregated lands where the rights of private proprietorship has attached.

3. The last objection argued by appellant’s counsel is, that the act of February 13, 1867, is in violation of the third section of Article XI of the Constitution of this State. It is claimed that by the provisions of said section, the sixteenth and thirty-sixth sections are set apart and dedicated to the public schools, and that it was not, therefore, within the power of the legislature to relinquish the title of the State to these sections. Section 3 provides that “all lands, including the sixteenth and thirty-sixth sections in every township, donated for the benefit of public schools, in the act of the thirty-eighth Congress, to enable the people of Nevada Territory to form a State government, * * * shall be and the same are hereby solemnly pledged for educational purposes, and shall not be transferred to any other fund for any other uses,” etc.

The plain object of this provision of the Constitution was to prevent the legislature from passing any law that would appropriate the proceeds received by the State from the sale of such lands to any other than educational purposes. The title to said sections is vested in the State, not in the schools. The lands are solemnly pledged to educational purposes, and when sold by the State the proceeds arising therefrom must, under the provisions of the Constitution, be paid into the school fund, and only be used for educational purposes, ‘ ‘ and shall not be transferred to any other fund for any other uses.” The same disposition must also be made of the proceeds derived by the State from the sale of lands selected in lieu of the sixteenth and thirty-sixth sections. There is nothing in tbe act which attempts to make any disposition of said lands for any other than educational purposes. The school fund is fully protected, and, in our opinion, this provision of the Constitution has not been violated.

We have not, in this opinion, considered the legal effect of the joint resolution of Congress, approved January 30th, 1865, which provides that no act passed at the same session of Congress as the enabling act “shall be so construed as to embrace mineral lands, which in all cases shall be and are reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant,” and which was construed by the secretary of the interior to exclude from the operation of the enabling act all mineral lands (Copp’s U. S. Mining Decisions, 81); nor have we deemed it necessary to discuss many other points that were urgently pressed by counsel, as the result we have reached, upon-the points decided, are in our judgment conclusive of this case.

The judgment of the district court is affirmed.

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Concurrence Opinion

Beatty, J.,

concurring:

I concur in the decision of the Court, but I dissent from the views expressed in the foregoing opinion upon one point of great practical importance; and, for that reason, feel obliged to state very briefly the grounds of my dissent.

In the first place, I think there is no room for construction as to the meaning of the grant. It means, and has the exact effect of, what it says. It is part of an act prescribing the different steps the people of Nevada Territory should take, in a certain order and at fixed dates, to form a State government. If they had failed to comply at least substantially with the terms of the enabling act, or if the President of the United States had not approved the constitution adopted by the people, and had refused to proclaim the admission of the State, the grant would never have taken effect. But when the people of Nevada did comply with all the provisions of the enabling act, and the President of the United States proclaimed the admission of Nevada as a State of the Union, eo instanii the title to the sixteenth and thirty-sixth sections vested in the State. That title did not of course attach to any specific parcels of land till the survey was made, but in the meantime Congress had no power to make other disposition of the sixteenth and thirty-sixth sections eo nomine, nor could it dispose of specific tracts so as to defeat the title of this State if, on the completion and approval of the public surveys,' those tracts were found to include any part of the sixteenth or thirty-sixth sections. These points are clearly settled in the authorities referred to on the oral argument of the case, and cited in the appellant’s printed brief, and none of the distinctions which respondent attempts to draw between this case and those referred to has any existence. The argument that this grant did not take effect at the time of the admission of the State into the Union because when i t was made there was no grantee in esse, is well answered by the quotation from the decision of Schulenberg v. Harriman, supra. If it is really the rule of law that there can, be no grant without a grantee in esse (which is a doubtful proposition), it is merely a rule of law, and a very technical rule of law, applying to transactions between private persons; but certainly the rule is not superior to the legislative will, and when a grant is made by law it operates according to the intent of the legislature, not only as a grant, but as a law, and if it is in conflict with any existing rule of law, then such rule is pro tanto repealed. The same reasoning applies to the objection that there was no specific thing in existence to be granted. If Congress desired to grant to a grantee in posse lands not segregated, but to be segregated thereafter from other lands of the United States, it could do so notwithstanding any pre-existing law, because it could make a law for the occasion. And finally, as counsel for appellant clearly point out, if the arguments of respondent on these points are valid at all they prove that Nevada has not acquired any title to any lands by virtue of the several grants made by Congress. Uut the strong argument of respondent, or at least the one upon which he insists most strongly, is that the grant in the enabling act should be construed as if it bad read, “That sections numbered sixteen and thirty-six in every township, and where such sections shall have been sold or otherwise disposed of (before final survey) by act of Congress, other lands equivalent thereto,” etc.; that it should be so construed because Congress had not disposed of any of the lands in Nevada Territory prior to that time; and unless we interpret the grant of lieu lands to be in place of lands to be subsequently disposed of, we convict Congress of ignorance and folly, etc. Besides the answers of appellant to this position, which are quite sufficient for the purpose, there is a much more complete answer. The whole argument rests upon the assumption that no lands had been disposed of in Nevada Territory by act of Congress prior to the enabling act. But the fact is, that several extensive Indian and military reservations had been set apart by the President under the authority of acts of Congress within the boundaries of this State. Not to mention others, the two extensive Indian reservations on the Trucbee and Walker Bivers, embracing many thousands of acres, and necessarily including several sixteenth and thirty-sixth sections, had been laid off pursuant to acts of Congress long before the passage of the enabling act. The simple mention of this fact sweeps away the whole foundation of respondent’s argument. My conclusion, therefore, as above stated, is, that the title to all the sixteenth and thirty-sixth sections vested in the State at the moment of our admission, and that our title has attached as fast as the surveys have been approved, unless the effect of the grant has been changed by subsequent agreement between the State and the United States. I do not differ from the Court in the opinion that the terms of the grant might be altered to any extent by mutual agreement of the parties. But the legislature cannot make any agreement in behalf of the State which will be in conflict with the Constitution of the State. Now, the Constitution (Art. XI, Sec. 3) dedicates the land granted in the enabling act to the school fund, and, in my opinion, deprives the legislature of the power to give it aivay. The legislature of course lias the power to convey the lands of the State upon such terms and conditions as it may judge expedient, being restricted only in the application of the proceeds. But I do not think the legislature can give away the school lands without getting anything in exchange. But the opinion of the Court, assuming that the title to every one of the sixteenth and thirty-sixth sections, whether mineral lands or not, was in the State before the passage of the act of February 13, 1867, holds that the effect of that act was to re-vest the title to all mineral lands in the United States, and to agree to accept other lands in lieu thereof. Now, there is not one word in any act of our own legislature which, in my opinion, will bear the construction that we are to get anything in exchange for the mineral lands which the legislature no doubt intended to surrender. And there is nothing in any act of Congress which can be construed into a grant of anything in exchange for such surrender. The congressional interpretation of the grant in the enabling act is expressed in the joint resolution of Congress, quoted in the opinion of the Court, and that is, that the mineral lands never were granted to the State — and the act of Congress of July 4, 1866, is evidently based upon that assumption. Of course, therefore, it offers nothing in exchange for lands which it regarded as all the time the property of the United States — never granted, and, consequently, never resumed. If, then, the legislature relinquished to the United States, by the act referred to, the title to the mineral lands, it relinquished it for nothing. In other words, it gave the lands to the United States. Now, if it could give one section to the United States, it could give all the lands of the State to the United States; and if it could give them to, the United States, it could give them to John Smith — a proposition that I am not prepared to admit. My conclusion is — and it is here that I differ from the Court — that all the sixteenth and thirty-sixth sections in the State, whether mineral lands or not, belong to the State, unless they had been disposed of by act of Congress prior to the passage of the enabling act.

But I do not think the appellant can derive any advantage from this conclusion, for the legislature has acquiesced in the congressional interpretation of the grant — that it does not embrace the mineral lands — and has agreed that they shall be reserved from sale. That agreement is not, in my opinion, binding upon future legislatures, and at any future time this State may dispose of its mineral lands. But the act providing for the disposal of the lands of the State, by virtue of which the appellant claims, is to be construed with reference to the act of February 13, 1867. The fact that that act is, in part, unconstitutional, does not preclude resort to its provisions for the purpose of construing an act in pari materia. Construed in the light of its provisions it is plain that the act under which appellant claims title does not provide for the sale of mineral lands. The grantor of appellant, when he applied to the State register for the land in question, knew that he could obtain no title to it under the existing law if it was mineral land, because no officer of the State was empowered to convey that sort of land.

It is for these reasons that I think the judgment should be affirmed.