113 F. 634 | 8th Cir. | 1902
after stating the case as above, delivered the opinion of the court.
The title of the defendant, in error Jenkins consists of a patent to the city of Central, and a regular conveyance from its successor, the city of Blackhawk, to himself. On its face, this title is regular and sufficient. Counsel for the plaintiff in error assail it on the grounds (t) that the patent to the city of Central was void and ineffectual to convey this property, because it was reserved from conveyance as a part of a town site, under sections 2386, 2392, Rev. St.; and (2) because the conveyance from the city of Blackhawk was made to Jenkins while Rogers, the grantor of the plaintiff in error, was in possession of the property, and entitled to the deed from the city.
The provisions of sections 2386 and 2392 relevant to this issue are that “where mineral veins arc possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, tiie title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof,” and that “no title shall be acquired under the foregoing provisions of this chapter to aii}" mine of gold, silver, cinnabar or copper; or to any valid mining claim or possession held under existing laws.”
Prior to the issue of the patent to the town site the grantor of the plaintiff in error had located his claim to the Cook lode upon a tract of laud 790 feet long and 50 feet wide, had marked the exterior boundaries of this claim, had entered it and received a patent for it. These acts constituted a notice to the government and to the public
The position of counsel for plaintiff in error, that because the act of 1866 permits the discoverer of a lode to receive a patent therefor, ‘‘granting such mine together with the right to follow such vein or lode with its dips, angles and variations to any depth although it may enter the land adjoining,” the locator has the right to follow the lode on its strike beyond the boundaries of his location, is not tenable. It is only in its descending course that he may follow its dips, angles, and variations. Pie cannot follow these dips, angles, and variations “to any depth” on the strike of the vein,' or on its ascending course. The words “to any depth,” as well as the other provisions of the statute which require the locator to file a diagram of the tract he claims, and permit him to receive a patent of this limited area, demonstrate the fact that it was not the intention of congress to grant to the patentee of a lode mining claim under the act of 1866 the right to follow it on its strike beyond the boundaries of the location he selects and secures. The act of July 26, 1866, does not grant to the patentee of a lode mining claim the right to follow his vein on its strike, with its dips, angles and variations, beyond the boundaries of his location. It permits him to follow it beyond those boundaries on its dip or descending course only. The result is that Lyman Cook, the patentee of the Cook lode, derived no title or interest in the land here in dispute by his patent, and the plaintiff in error has taken none through Cook’s deed.
But it is said that even if the patent conveyed the title to this property to the city of Central and its successor, the city of Blackhawk, the conveyance of the latter to the defendant in error was void, because the property was not appraised and sold at public auction, as required by. sections 4339 and 4342 of Mills’ Annotated Statutes of Colorado, and because the grantor of the plaintiff in error, William Rogers, who took possession on June 7, 1897, and applied for a deed to himself, was entitled to the conveyance from the city of Blackhawk, while the defendant in error had no right to it. The power and duty of the city of Blackhawk to dispose of this land, however, are not governed by the sections of the statute to which reference has been made, which were first enacted in 1881. They were controlled, on the other hand,
Moreover, the questions whether or not the city authorities complied with the terms of the statutes prescribing the preliminaries, and declaring the method for a conveyance of the lots in the town site, and whether or not on that account its deed may be avoided, cannot be considered in this action of ejectment. Whether the deed was executed after compliance with the required preliminaries, and in strict accordance with the requirements of the statutes, or not, it conveyed the legal title to this property to the defendant in error. The statutes of Colorado intrusted to the authorities of the city the power to hear and determine the questions whether or not these preliminaries had been performed and these requirements had been fulfilled, and authorized them, upon that determination, to make the conveyance. The legal presumption is that they discharged these duties honestly and in accordance with the provisions of the law. That presumption might undoubtedly be overcome in a suit in equity by pleading and proof of gross mistake, fraud, or error in law. No such proceeding has been instituted. No suit to attack or avoid this deed has been brought. This is an action at law, and in this action the defendant in error had a right to rely upon his Conveyance. It cannot be collaterally attacked in this action of ejectment. The deed of the city authorities authorized to convey lots in a town site is presumptively valid, and it cannot be collaterally assailed in an action at law for a failure of the authorities to require the preliminaries or perform the requirements antecedent to its execution. Chever v. Horner, 11 Colo. 68, 71, 79, 17 Pac. 21, 7 Am. St. Rep. 202; Smith v. Pipe, 3 Colo. 187, 199; Anderson v. Bartels, 7 Colo. 256, 263, 266, 267, 3 Pac. 225.
Finally it is contended that the defendant in error is estopped from claiming that he is the owner of this land under the patent of the town site, and that it was not subject to entry as a mining claim on June 7, 1897, because he has pleaded in his complaint that this suit is brought in support of an adverse claim filed in the land office against the entry of this land for patent by the plaintiff in error under section 2386 of the Revised Statutes. But there is nothing inconsistent in the adverse claim of Jenkins and this action of ejectment. The statutes permit any one to file an adverse claim whenever application is made to enter a mining claim upon the public lands for patent. If an attempt is made to secure a patent to land which has already been conveyed by the government, the land department has no jurisdiction to consider or determine the questions it presents. An adverse claim presented to that department which discloses the fact that the adverse claimant holds it under a patent already issued is entirely con
The result is that the patent of the town site conveyed the title to this land to the city of Central and its successor, the city of Black-hawk, and the conveyance of the latter vested it in the defendant in error. The deed of Lyman Cook conveyed no title or interest in this property, because he had none. The attempt of William Rogers to initiate a mining claim upon it in 1897 was futile, because all right, title, and interest in it had passed out of the government in 1876. His conveyance to the plaintiff in error, therefore, was ineffectual, and the judgment below must be affirmed. It is so ordered.