Loney v. Scott
112 P. 172
Or.
1910
Check Treatment
Mr. Justice Eakin

delivered the opinion of the court.

1. There are several important questions involved in determining plaintiff’s right to relief in this suit. First: It is contended by defendant that plaintiffs could not make a valid location upon land withdrawn from settlement. Withdrawals for forest reserves expressly reserve to the prospector all mineral deposits for mining exploration and location; but withdrawals made by the Secretary of the Interior, under the act of June 17, 1902, c. 1093, 32 Stat. 388 (U. S. Comp. St. Supp. 1909, p. 597), providing for irrigation projects, if made under the first form, that is, for “irrigation works,” are not subject to mining locations, as they are intended, as permanent reservations for governmental use, and amount to a legislative withdrawal. Frisbie v. Whitney, 9 Wall. 187 (19 L. Ed. 668) ; Yosemite Valley Case, 15 Wall. 77 (21 L. Ed. 82) ; Shepley v. Cowan, 91 U. S. 330, 338 (23 L. Ed. 424). While lands withdrawn under the second form, viz., for irrigation purposes under such project, are disposed of thereunder only for homesteads, and all lands open to homestead settlement are also open to exploration and location for mineral deposits. 35 Land Dec. Dept. Int. 216; Albert M. Crafts, 36 Land Dec. Dep. Int. 138. The language of section 3 of the act under consideration, relating to withdrawals under the first form, provides that the Secretary of the Interior “shall restore to public entry any of the lands so withdrawn when in his judgment such lands are not required for the purposes of this act.” There were withdrawn, under this provision, for irrigation works, about 183 sections, which may be reasonably presumed to be far in excess of what may be required for that purpose, and portions thereof, including the land above described, were, in *383fact, soon thereafter restored to the public domain, while, plaintiffs were in possession of the placer claims. It. appears that the Interior Department, under a former statute, providing for withdrawals for irrigation projects, which provides that the reservoir shall be restricted to and contain only so much land as is actually necessary for its construction, held that a mineral entry, based on a location made after withdrawal of the land for a reservoir site, conferred no right, but may be suspended, and, if subsequently restored to entry, the location may proceed to patent. See, also, Prescott & Arizona Central Ry. Co., 13 Land Dec. Dep. Int. 47; Newton F. Austin, 18 Land Dec. Dep. Int. 4; Noonan v. Caledonia Min. Co., 121 U. S. 393 (7 Sup. Ct. 911: 30 L. Ed. 1061.)

2. But we do not deem it necessary to determine that question as, under the view we take of the case, the possession by plaintiffs of the ground as mining claims, at the time of the application by the railway company for a patent therefor, is sufficient to defeat its action for possession. The rule is, that a patent to government land transfers to the patentee all veins, lodes, or other minerals, within its boundaries, unless such mineral deposits were known to exist at the time of the issuance of the patent, in which latter case the known mineral deposits do not pass by the patent. Reynolds v. Iron Silver Mining Co., 116 U. S. 687 (6 Sup. Ct. 601: 29 L. Ed. 774) ; Davis’ Adm’r v. Weibbold, 139 U. S. 507 (11 Sup. Ct. 628: 35 L. Ed. 238) ; Kansas City Mining & Milling Co. v. Clay, 3 Ariz. 326 (29 Pac. 9) ; State of Colorado, 6 Land Dec. Dep. Int. 412; Abraham, L. Miner, 9 Land Dec. Dep. Int. 408; Virginia Lode, 7 Land Dec. Dep. Int. 459.

In Reynolds v. Iron Silver Mining Co., a case in which a patent had issued for a placer mine upon which there was a quartz ledge, known at the time to the. patentee, it is said, that the title to the quartz mine remained in *384the United States and no title passed to the patentee. “He takes his surface land and his placer mine, and such lodes or veins of mineral matter within it as were unknown, but to such as were known to exist he gets by that patent no right whatever. The title remaining in his grantor, the United States, to this vein, the existence of which was known, he has no such interest in it as authorizes him to disturb any one else in the peaceable possession and mining of that vein. When it is once shown that the vein was known to exist at the time he acquired title to the placer, it is shown that he acquired no title or interest in that vein by his patent. Whether the defendant has title, or is a mere trespasser, it is certain that he is in possession, and that is a sufficient defense against one who has no title at all and never had any.” The same language is used in Davis’ Adm’r v. Weibbold, 139 U. S. 516 (11 Sup. Ct. 628: 35 L. Ed. 238), where it is held that the patent .does not pass the title to known mineral land.

3. In the case before us it is conceded that, if building sand is mineral, within the meaning of Section 2329 of the U. S. Rev. St. (U. S. Comp. St. 1901, p. 1432), the railway company and defendant knew, at the time the patent was applied for, that the land contained mineral. This is shown by the nonmineral affidavit of Scott, quoted above, expressly referring to the fact that part of the ground is claimed under placer filings, and, therefore, the title to the mineral ground did not. pass by the patent, and defendant Scott has no standing to maintain ejectment against plaintiffs.

The question arises whether building sand is a mineral, within the mineral laws of the United States. The language of Section 2329 is:

“Claims usually called ‘placers,’ including all forms of deposits, excepting veins of quartz, or other rock in place, shall be subject to entry.”

*385Plaintiffs’ proof tends to show that building sand is a valuable mineral, viz., worth 50 cents per cubic yard, and is marketable in large quantities. George Otis Smith, the director of the United States Geological Survey, in volume 2 of his Report of the Mineral Resources of the United States, for 1907, at page 563, by a tabulated statement shows that more than $5,000,000 worth of building sand had been produced in the United States in 1906, and as great a value in 1907.

In Northern Pac. Ry. Co. v. Soderberg, 188 U. S. 526, 534 (23 Sup. Ct. 365, 368: 47 L. Ed. 575), the court, in discussing whether granite comes within the term, “mineral deposit,” say: “The words, ‘valuable mineral deposits’ (as used in Section 2319, U. S. Rev. St. [U. S. Comp. St. 1901, p. 1424]) should be construed as including all lands chiefly valuable for other than agricultural purposes, and particularly as including nonmetallic substances [naming a list, and continuing]. We do not deem it necessary to attempt an exact' definition of the word ‘mineral lands’ as used in the act of July 2, 1864 [Act June 2, 1864, c. 217, 13 Stat. 365]. With our present light upon the subject it might be difficult to do so. * * Indeed, we are of the opinion that this legislation consists with, rather than opposes, the overwhelming weight of authority to the effect that mineral lands include, not merely metalliferous lands, but all such as are chiefly valuable for their deposits of a mineral character, which are useful in.the arts or valuable for purposes of manufacture.” This definition seems broad enough to include building sand, and we are of the opinion that land more valuable for the building sand it contains than for agriculture is subject to placer location, and is mineral within the meaning of the United States mining statutes.

4. The decree of the lower court, however, in addition *386to restraining defendant from prosecuting the law action, adjudges “that the legal title which the defendant herein has to said portion of said premises embraced within the said three mining claims is held by the defendant in trust for the plaintiffs herein.” This evidently is intended to be an adjudication that plaintiffs have established a right to the title to the claims, but they have not shown themselves entitled to this relief.

If a patent to land to which one is entitled, has been improperly issued by the United States to another, the State courts will quiet the title of the former or adjudge the other a trustee of the title for him. Wardwell v. Paige, 9 Or. 517; Bohall v. Billa, 114 U. S. 47 (5 Sup. Ct. 782: 29 L. Ed. 61) ; Hartman v. Warren, 76 Fed. 157 (22 C. C. A. 80) ; Baldwin v. Keith, 13 Okl. 624 (75 Pac. 1124) ; Graham v. Great Falls, W. P. & T. Co., 30 Mont. 393 (76 Pac. 808) ; Sparks v. Pierce, 115 U. S. 408 (6 Sup. Ct. 102: 29 L. Ed. 428). But to entitle one to a decree, adjudging another who holds under a patent from the United States to be a trustee for the former, he must show that he, himself, is entitled to it, or show that, by the law properly administered, the title should have been awarded to him. See the cases cited last above.

5. The result or these conclusions is, that the lands included in tne placer claims are mineral and subject to location as such; that defendant and his grantor knew of its mineral character at the time the patent was applied for; that they acquired no title thereto, but the title remained in the United States; that, at the time the action of ejectment was commenced by defendant, plaintiffs were in possession of the placer claims, working the same as a mine ana seeking to acquire title thereto as such from the United States; that defendant, having no title thereto, cannot maintain an action of ejectment therefor, against plaintiffs, who are rightfully in possession thereof. Morrison v. Stalnaker, 104 U. S. *387213 (26 L. Ed. 741) ; Johnson v. Drew, 34 Fla. 130 (15 South. 780: 43 Am. St. Rep. 172, 173), that equity will enjoin the action; and that plaintiffs, having failed to allege or prove that they are entitled to a patent from the government, cannot have defendant adjudged a trustee of the title for them, even if the title were in him.

The decree of the lower court will, therefore, be modified, and the defendant enjoined from prosecuting the action at law. Neither party shall recover costs.

Modified.