102 P. 853 | Wyo. | 1909
This is a suit brought by the plaintiff in error in the District Court in Fremont County to recover possession of certain mining ground, and for an injunction to restrain the defendants from further interfering with the premises, and from filing or recording any instruments of writing affecting the title to the same. The petition also asks for damages and that the plaintiff’s title to the lands in controversy be quieted in him as against any claim as
The evidence sustains the allegations of the pleadings as to date of location of each of the mining claims involved, and it is conceded in the brief of counsel for plaintiff in error that the location by the defendants of their several claims was prior in point of time to plaintiff’s locations, and also that the lands in controversy are mineral lands, with well defined ledges of rock in place carrying minerals exposed on all the claims, and that the defendants made their discoveries, stakdd their claims, posted the notices, and performed all the necessary acts up to the time of the commencement of the suit. But it is contended that the defendants made their discoveries and located their claims in violation of the Act of Congress and the proclamation of the President opening the ceded
In the Act of Congress aforesaid ratifying and amending the agreement with the Indians by which that part of the reservation embracing the lands in controversy was ceded and relinquished to the United States, it is stated that the United States stipulates and agrees to dispose of the ceded lands, as therein provided, under the provisions of the homestead, townsite, coal and mineral land laws, or by sale for cash; and in section 2 of the act it is provided as follows: • .
“That the lands ceded to the United States under the said agreement shall be disposed of under the provisions of the homestead, townsite, coal and mineral land laws of the United States and shall be opened to settlement and entry by proclamation of the President of the United States on June fifteenth, nineteen hundred and six, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied and entered by persons entitled to make entry thereof, and no person shall be permitted to settle upon, occupy, and enter said lands except as prescribed in said proclamation until after the expiration .of sixty days from the time when the same are opened to settlement and entry,” . * * * (33 U. S. Stat. at Large, 1016-1022.)
By public resolution of Congress approved March 28, 1906, the time for the opening of the ceded lands to public entry was extended to August 15, 1906, unless the President should determine upon an earlier date for said
“Commencing August fifteenth, nineteen hundred and six, at nine o’clock a. m., the applications'of those persons drawing numbers 1 to 100, inclusive, entitling them to make homestead entries, must be presented at the land office at Lander, Wyoming, in the land district in which the said lands are situated and will be considered in their numerical order during the first day, and the applications of those drawing numbers 101 to 200, inclusive, entitling them to make homestead entries, must be presented and will be considered in their numerical order during the second day, and so on, Sundays excluded, at the-rate of 100 such applications per day until and including August twenty-fifth, nineteen hundred and six; on August twenty-seventh, nineteen hundred and six, such applications will be considered in like manner at the rate of 120 per day, Sundays ' excluded, until and including September sixth, nine*31 teen hundred and six; on and after September seventh, nineteen hundred and six, such applications will be considered at the rate of 140 per day, Sundays excluded, until and including September eighteenth] nineteen hundred and six; on and after September nineteenth, nineteen hundred and six, such applications will be considered at the rate of 160 per day, Sundays excluded, until and including September twenty-ninth, nineteen hundred and six; and. on and after October one, nineteen hundred and six, such applications will- be considered at the rate of 170 per day, Sundays excluded, until and including October thirteenth, nineteen hundred and six, the expiration of the sixty day period.” * * *
Having thus authorized the making of homestead entries by registered applicants and prescribed the time when such entries would be permitted, other entries or locations were provided for in a paragraph near the close of the proclamation, as follows:
“All persons are especially admonished that under said Act of Congress approved March three, nineteen hundred and five, it is provided that no person shall be permitted to settle upon, occupy or enter any of said lands except in the manner prescribed in this proclamation until after the expiration of sixty days from the time when the same" are opened to settlement and entry. After the expiration of said period of sixty days, but not before, as herein prescribed, any of said lands remaining undisposed of may be settled upon, occupied, entered, or located under the general provisions of the homestead, townsite, coal and mineral land laws of the United States in like manner as if the manner affecting such settlement, occupancy, entry, and location had not been prescribed herein in obedience to law.” (34 U. S. Stat. 3208-3212.)
Whether the lands were subject to mineral location at the time the locations of defendants were made depends upon the construction to be given to the provisions of the proclamation in connection with that part of Section 2 of the Act of Congress aforesaid, which declares that no
The principal point to be decided in this connection is whether October 14, 1906, the day upon which all but one of the locations of the defendants were made, was after the expiration of sixty days from the time of the opening of the ceded lands to settlement and entry. If, in computing the sixty day period, the day of the opening, viz.: August 15, 1906, be counted as one of the sixty days, then the period expired at midnight of October 13, 1906, and the locations of defendants would not then be objectionable as premature. But it is contended on behalf of the plaintiff in error that the day of the opening should be excluded in such computation, thereby bringing October 14th within the sixty day period, and requiring that the locations made on that day be adjudged ineffective and void.
The general rule that the terminus a quo is to be excluded may be conceded, but the rule is not so arbitrary or unqualified as to bar an inquiry to ascertain the reason of the provision to be construed, or what was intended thereby, as disclosed by the instrument or statute under consideration. The rule must yield, we think, where a contrary intention is clearly disclosed, and this seems to be the view taken by the Supreme Court of the United States, the ultimate authority upon the construction of a Federal statute.
In Taylor v. Brown, 147 U. S. 640, the court had under consideration a statute providing that the title to lands acquired under a homestead entry by an Indian who had abandoned his tribal relations should remain inalienable-for the period of five years from the date of the patent issued therefor. A patent had been issued to such an Indian on June 15, 1880, and a deed conveying the premises was executed by him on June 15, 1885. It was held that since, in the absence of the provision restraining aliena
The opinion in that case cited and quoted from the case of Griffith v. Bogert, 18 How. 158, in which a law of Missouri was construed which allowed the lands of a deceased debtor to be sold under execution, but prohibited it from being done until fifter the expiration of' eighteen months from the date of the letters of administration upon his estate. Letters of administration had been dated November 1, 1819, and the sale in question occurred May 1, 1821. It was held that the terminus a quo should be included and that the sale was valid._ As a reason for holding the day of the date of the letters to be included in computing the time during which a sale was prohibited, the court said: “The object of the Legislature was to give a stay of execution for eighteen months, in order that the administrator might have an opportunity of collecting the assets of the deceased and applying them to the discharge of his debts. The day on which the letters issued may be used for this purpose as effectually as any other in the year. The rights of the creditor to execu
The statute under consideration designates a period of sixty days to occur and expire before any of the lands could be lawfully settled upon, occupied, and entered,' “except as prescribed in said proclamation,” and the terminus a quo, or the commencement of said period, is stated to be “the time when the same are opened to settlement and entry.” In the same section -of the statute it was provided that the proclamation of the President should prescribe the manner in which the ceded lands should be settled upon, occupied,' or entered by persons entitled to make entry thereof. It is clear, we think, from these provisions, that it was understood and intended by Congress in enacting the statute, that the proclamation would" permit the making of a preferred class of entries during the designated period of sixty days, and that, having in mind the then recent history of the opening to settlement and entry of lands in other reservations, it was also understood and intended that the proclamation would provide a plan whereby such preferred class of entries might be made within the limited period with as little friction as possible. The object, therefore, of the provision prohibiting any other settlement or entry during sucli period other than as provided in the proclamation appears to have been to render more effective any scheme adopted and promulgated by the President for the making of those entries by the persons given a preferred right. But we perceive no reason for assuming or holding that Congress intended to set apart at any time after the opening a day upon which no locations of any character could be made, or to postpone the time for permitting any other than the preferred entries-beyond the sixty days allowed for the making thereof. The lands were to be opened, as declared by Congress, on August 15, 1906, unless the President should determine upon an earlier date. An earlier date was not determined
That the President understood that the day of the opening constituted and was to be counted as one of the sixty days is clear, for it is expressly stated in the proclamation that October 13, 1906, would be the expiration of the sixty day period. The proclamation provided for the making of homestead entries by only registered applicants during the first sixty days following the opening, and it is apparent that the day of the opening was considered by the President as one of such sixty days, for October 13, 1906, was fixed as the last day upon which such entries were permitted to be made. The proclamation, we think, thoroughly agrees with and supports the, theory we have stated as to the object of setting apart the sixty day period. Upon the face of the proclamation there can be no question but
■ An Act of Congress approved on the same day that the act here under consideration was approved, restored to the public domain for entry under the homestead and town-site laws the unallotted lands in the Uintah Indian Reservation in the State of Utah, and provided that the time for the opening of the said lands to settlement and entry, and the manner _in which they might be settled upon, occupied and entered, should be prescribed by proclamation of the President. It was also provided in that act, as in the act before us, that- no person should be permitted to settle upon, occupy or enter any of said lands “except as prescribed in said proclamation until after the expiration of sixty days from the time when the same are opened to settlement and entry.” The proclamation of the President, which was dated July 14, 1905, provided a plan similar in character to that found in the proclamation here, and that on August 28, 1905/ at 9 o’clock a. m., the applications of those drawing numbers .1 to 50, inclusive, must be presented at the land office. That proclamation also contained a paragraph calling attention to the provision of the'Act of Congress prohibiting any person from settling upon, occupying, or entering any of said lands, except in the manner prescribed in the proclamation, until after the expiration of the sixty days aforesaid, and provided that after the expiration of said period of sixty days, but not before, any of said lands remaining undisposed of might be settled upon, &c.
A letter of instructions to the register and receiver of the land office at which said applications for entry under said act were to be presented, dated October 16, 1905, signed by the Commissioner and approved by the Secretary of the Interior, referred to the provisions of the Act of Congress and the proclamation of the President, and
Congress, in our opinion, intended by the provision under consideration to allow sixty days during which, the lands should not be entered or disposed of in any other manner than that prescribed by the President in his proclamation, and that a-t the expiration of the sixty days allowed for that jpurpose, the lands would be subject generally to settlement, entry and disposition under the laws specified in the act. The day of the opening, viz.: August 15, 1906, having been prescribed in the proclamation as one of the days upon which homestead entries by the preferred applicants should be made, there is no reason for excluding .it in computing the sixty day period, but, on the contrary, it is-necessary to be included to give effect to the evident purpose of Congress. By including that day, the sixty day period expired at midnight of October 13, 1906, and, there
The declaration in the proclamation. that the lands remaining undisposed of may be settled upon, occupied, entered, or located under the general provisions of the homestead, townsite, coal and mineral land laws of. the United States “after the expiration of said period of sixty days, * * * as herein prescribed,” would seem to have permitted settlement, entry or location on October fourteenth, since, in a preceding paragraph, -October 13 had been prescribed as the expiration of the sixty day p'eriod. That suggests the proposition, which we do not care to decide, that, within the authority granted by the act, the proclamation may have declared the laws generally applicable to the lands remaining undisposed of on October 14, 1906, even though that day might be held to have been within the sixty day period. We are, however, satisfied that a proper- construction of the provision exempting the lands from general settlement and entry during the first sixty days requires the inclusion, of the day upon which the lands were opened for settlement and entry in computing the sixty day period.
It is further contended that the locations of the defendants should be held to be void for the reason that they had gone upon and occupied some of these lands, or other lands in close proximity thereto, before the expiration of the sixty day period and had remained there until they made their locations. It appears from the evidence that the defendants commenced to .make their locations very early in the morning of October 14, 1906, that is to.say, shortly after midnight of October 13th, from which fact, and the distance from the exterior lines of the claims to the- places where the location notices were posted, it is argued that it sufficiently appears that the persons posting the notices were within the limits of the respective claims before midnight of October 13. It is seriously contended that in thus entering upon the premises the defendants violated the Act of Congress and the proclama
The statutes under consideration in the Oklahoma cases' not only prohibited any person from entering upon any of the lands prior'to the time that they were opened for settlement, but provided as a penalty that no person violating such provision should ever be permitted to enter any of said lands or acquire any right thereto.
The act we are here considering does not in terms prohibit any person from the act of going or entering upon the lands. It provides that no person shall be permitted to “settle upon, occupy or enter said lands” until after the expiration of the period of sixty days, except as prescribed in the proclamation. The words “settle upon, occupy and enter”' were used, we think, in their technical sense as acts incident to the appropriation of the lands, and as initiating a right to claim or acquire title under the land laws, and did not have the effect of prohibiting the mere presence of a person upon the land. Immediately preceding the provision employing these words it is declared that on a specified date the lands shall be opened “to settlement and entry,” and in other places throughout the act where the same or equivalent words are used they clearly import an act authorized or required by law as a means of acquiring a right to the public lands! And in the' proclamation the words are used in the same sense. This is noticeable in. the paragraph calling attention to the provision of the act under consideration, and declaring the application of the general' provisions of certain land laws after the expiration of the sixty day period. Beyond that, however, there is no penalty as in the acts concerning the Oklahoma lands for a violation of the pro
In the later case of Kendall v. San Juan Mining Co., it appeared that the mining claimants, who had intruded upon' Indian territory in violation of the treaty with' the Indians and located a mining claim thereon, had failed, after the extinguishment of the Indian title, and within the period prescribed by the laws of the State, and until after the premises had become properly located by others, to make a new record of their location; and hence it was held that they could not claim a priority based upon their
The locations here in question were each and all made at a time when the lands were subj ect to location and when the parties making them had a right to be upon the ground for that purpose, and although there might have been a treaty making their original presence on the lands unlawful, as in the case of Noonan v. Caledonia Mining Co., supra, or if they were forbidden by the Act of Congress from going upon the premises before the date of their locations, the prohibition in either case had ceased at the time the locations were made. Upon such a state of facts appearing in the case of Noonan v. Caledonia Mining Co., supra, the Court said: “The effect of the withdrawal of the district from the reservation, and the consequent end of the prohibition, was to leave the predecessors of-the plaintiff exempt from liability to be disturbed for their unlawful entry on the land, and free to take measures under the mining laws for the perfection of their claims. Evidence of what had been done by them, the location of their claim, its extent, the amount of work done in its development, was competent, not as creating any absolute right to the property, but as showing the existence and condition of the property when their possession became lawful under the new agreement. Whether they should be protected in holding the property afterwards, depended upqn their future compliance with the laws, statutory and mining, governing the possession and use of mineral lands in Dakota.”
But it. is unnecessary to further consider the question from the standpoint of a violation of the provisions of the act on the part of the defendants, for we fail to find in the act any provision that can reasonably be construed as making their mere entry upon the lands in dispute prior to
The only other questions discussed in the brief for plaintiff in error have reference to the Squawman lode, which was located October 15, 1906, in the names of the defendants in error, Minor and Rawton. At the time of bringing the suit and until the evidence had been taken upon the trial, Rawton was not named as one of the defendants. It appears by the journal entries in the cause that on December 30, 1907, which also appears to have been the last day of the trial, an order was made upon the motion of said Rawton that his name be entered upon the pleadings and judgment and orders of the court as a party defendant, “in accordance with the evidence proven on the trial of said cause,” and it is stated in said journal entry that the plaintiff excepted to the order. The motion upon which the order was made does not appear to be incorporated in the bill of exceptions, and we are unable to find any reference in the bill of exceptions to such motion or to any ruling of the court upon it, or to the order or exception thereto. The proceeding by which Rawton was made a defendant is not, therefore, properly before us for consideration.
It is, however, contended that the evidence disclosed that the Squawman lode was located by Mr. Minor in the absence of Rawton, and that there is no evidence to show that Rawton had previously authorized Minor to locate the claim or had ratified the act of location, for which reason it is argued that the evidence is insufficient to support the judgment and finding in favor of the defendant in error Rawton. We think it unnecessary to consider these questions. It appears by the judgment that so far as the lode in question was concerned, the defendants Minor and Rawton were found to be the owners and entitled to
For the reasons above stated, we find no prejudicial error in the record, and the judgment will be affirmed.
Affirmed.