86 P. 1077 | Utah | 1906
The respondent applied for patent to the Cliff lode mining claim located by him August 1. 1901. The appellant adversed the application, claiming the right to the possession of the same ground as owner and claimant of the Divide lode mining daim located by his intestate January 2, 1903. This action was brought pursuant to section 2326, Rev. St. U. S. [U. S. Comp. St. 1901, p. 1430], to adjudicate these adverse claims. Upon findings made by the trial court a judgment was entered for the respondent, decreeing to him the possession of the ground. On the trial, the appellant offered evidence tending to prove that at the time of the location of the Cliff claim the ground so located and in controversy was covered by a prior valid and subsisting location called the “South Mountain,” located by W. I. Snyder and Thomas Roscamp on August 21, 1900, but which became forfeited December 31, 1901, for nonperformance of the annual labor and development work required by law; and that no adverse claim was filed in behalf of the South Mountain against the application for patent. This evidence was received by the court, subject to the objection that it “was incompetent, irrelevant, and immaterial, and that no adverse claim was filed on behalf of the South Mountain.” The court specifically found “that the said Cliff, Divide, and South Mountain claims, as located, cover substantially the same ground, and that the place of discovery of said Cliff lode mining claim was within the boundaries of said alleged South Mountain mining claim.”
There being no adverse filed on behalf of the South Mountain claim, the decisive question is whether the appellant, as
It, however, in effect, is urged by the respondent that the above propositions, if true, would apply only in a contest between the owners of the South Mountain and the Cliff, had the former not forfeited their claim, and had they adversed the application for patent. In other words, the assertion is made that under such circumstances the location of the Cliff would be invalid as to the owners of the South Mountain claim, but by their failure to adverse' the application for patent the Cliff location is valid as to all the world because of an alleged indisputable presumption that no area in conflict between the South Mountain and the Cliff claims ever existed, or, if it existed, whatever paramount rights possessed by the owners of the South Mountain, in effect, inured to the benefit of the owner of the Cliff. Hence it is argued that the owner .of the Divide is not in position to show or assert that the Cliff, when located, was upon ground then covered by the South Mountain, a then valid and subsisting claim, or that the discovery point of the Cliff was within the boundaries of the South Mountain. In support of this contention the case of Lavagnino v. Uhlig, 198 U. S. 443, 25 Sup. Ct.
In the case at bar, it is true that had no .adverse claim been filed, the Land Office would have indulged tire presumption that no conflicting claims existed to the premises described in the application for patent, but when an adverse claim was filed by the appellant such presumption did not arise, and by the bringing of an action as by law required, the parties were removed to a court of competent jurisdiction where their respective rights to the possession of the ground were to be determined with no conclusive presumption as to the validity of either title, and where was to be adjudicated upon the facts adduced and proved which of the claimants,' if either, was entitled to the possession of the premises in dispute. Before the court, both claimants became contestants, and in a sense, plaintiffs, and each was required to show his title and to recover, if at all, on the strength of it. While in a contest between them the court may indulge the presumption that the location prior in time, prima facie at least, has the better right, yet it has but the effect of casting the onus on the other contestant to rebut such presumption, and the burden of showing the invalidity of such apparently prior location, or the showing of some competent facts which give him a better right to the ground in dispute. In other words, the parties are not concluded by the mere fact of priority of location. If such were the case there would be no necessity of the provision of law requiring an adjudication by the court. "While as to the Divide the Cliff location was prior in.time, nevertheless the owner of the Divide, having filed an adverse claim and having brought suit as by law he was required to do' in order to have determined which of the two climants had the better right to the ground in dispute, he was interested in showing that at the time of the location of the Cliff its discovery point was located within the boundaries of the South Mountain, a then valid and subsisting claim, and that the ground so attempted to be located was already covered by a senior claim, and,
The case at bar, therefore, presents a different question from the one involved in the Lavagnino Case where the opinion of the court was based upon the hypothesis that the Uh-lig claims were valid locations, and where only the question of overlapping claims was involved. This case is, therefore, not controlled by that decision, but is controlled by the more recent decision of the Supreme Court of the United States in the case of Brown v. Gurney, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. —. In that case the Cripple Creek Mining Company owned a lode mining claim called the “Kohnyo.” The claim conflicted with a patented placer which divided it into two parts. The discovery of mineral on the lode claim was made, and the workings and improvements were, on the north 500 feet of the claim. The south end, being 100 feet in length, was without, development work. The local Land Ofliee permitted the claimant of the Kohnyo to enter the two tracts, separated by the placer claim, as one claim, but the department ultimately refused to issue a patent for such tract, basing the refusal upon the ground that two portions of a mining claim separated by a patented placer could not be included within one patent. The applicant, however, was given the privilege to apply for patent upon either of the aggregated tracts, and directed that, in. default of an election or appeal by the claimant, within sixty days from the date of the order, May 28, 1895, the entry of that portion of the claim (the 700 feet) lying south of the placer should be canceled. No appeal was taken, but the claimant of the Kohnyo instituted proceedings against the claimant of the placer to secure title to the vein of the Koh-nyo, which, it was claimed, passed through the portion of the
“In adverse proceedings each party is practically a plaintiff and must show his title, (citing ease) ... Of course, it is essential that at the date of a location the ground located on should be’ part of the public domain, and in the present case the specific question affirmatively raised was whether the ground in controversy was a part of the public domain at the time of the respective contested locations.”
In determining the matter the court said that the important question was whether the ground in controversy reverted to and became a part of the public domain from the time of the
“Decision of the Secretary, May 7, 1898; or from the filing of the Kohnyo claimant of its election to retain the northerly tract and relinquish the other, June 14, 1898; or upon the formal cancellation of the entry July 15, 1898.”
After a discussion of the question the conclusion was reached that such fact resulted from the election and abandonment filed by the Kohnyo claimant June 14, 1898. Thereupon it was further observed by the court:
*167 “That by reason of that abandonment, the southerly tract, for the first time, reverted to and became a part of the public domain. And as the Hobson's Choice was at first location of the ground made after such abandonment, it follows that it was valid and that its owner was entitled to a decision in its favor. We again .state the dates of the respective locations. The Scorpion was located May 13, 1898. The Hob-son’s Choice was located June 23, 1898. The location of the P. G. was July 16th. Thus it is seen that the Scorpion was attempted to he located at a time when the premises were not subject to location; that the Hob-son's Choice was located when the premises had reverted to the public domain; and that the location of the P. G. was after that date.”
In that cas© the doctrine that it is essential that at the date of the location the ground located on should be part of the public domain and that ground covered.by an existing location is not subject to relocation until forfeiture or abandonment of the prior location, is again emphasized. This doctrine is not disputed but is fully recognized in the Lavagnino Case where in the opinion it is said that the ground in dispute when located by Smith, the Yes You Do location, “was not unoccupied mineral lands of the United States and consequently not subject to be relocated by Smith,” because embraced within the then locations of the prior valid and subsisting. Uhlig claims. Giving the Lavagnino Case the construction contended for by the respondent, is, in effect, to mate it overrule Belk v. Meagher, and Gwillim v. Donnellan, and to render it in conflict with the decisions of both federal and state courts on the question. We do not believe any such result was intended by that decision. Likewise, to give it the meaning contended for renders it in conflict with the more recent decision of Brown v. Gurney. Whatever room there may be for the contentions (Ambergris Min. Co. v. Day [Idaho], 85 Pac. 109, and Wilson v. Freeman, 68 L. R. A. 842, note 5) that the Lavagnino Case is in conflict -with or-distinguishable from prior decisions, it is sufficient for us that we follow Brown v. Gurney more recently decided, and which more nearly applies to the facts of the case at bar.
It necessarily follows, from what we have said, that we have reached a conclusion different from that of the trial court, and hence the order of this court is that the judgment of the court below be reversed and a judgment entered in