5 Mont. 274 | Mont. | 1885
This is an action in equity to quiet title. The respondents claim the ground in question under the name of the Pay Streak quartz lode mining claim, by virtue of a location thereof according to law, on the 23d day of April, 1878, under the act of congress of May 10, 1872. The appellant having, on the 23d day of July, 1880, procured a patent from the government for a certain placer mining claim, under the same act of congress, by virtue of his application of December 14,1878, which includes within its boundaries the ground claimed by respondents as a quai’tz lode location, claims title and right of possession to the ground in dispute by virtue of his patent afox’esaid.
The cause was submitted to a jury on special issues, who returned into court, in substance, the following findings of fact: That on and prior to December 14, 1878, a
Upon these facts, judgment was rendered for respondent for the ground in question, from which the appellant appeals to this court. There does not seem to have been any question at the trial, or claim on the part of appellant, that the Pay Streak mining claim and location of April 23, 1878, had ever been, in any manner, abandoned or forfeited, or that the relocation of respondents of August 2, 1881, was not of the same ground originally located as the Pay Streak' mining claim. As to whether this claim was known to the appellant to exist within and upon the premises in controversy, when he applied for and obtained a patent for said ground as a placer
1. Was it within the authority and jurisdiction of the court to have rendered a judgment for the plaintiff for the ground in question, the jury not having found upon all the interrogatories submitted to them by the court?
2. Did the placer patent necessarily include the lode mining claim location, unless such lode claim was known to appellant to exist at the time or before he applied for his patent? and is this question determinable in this action, or was it conclusively adjudicated in the land office?
1. As to the first question: This is a suit in equity to quiet title. The decree emanates from the judge sitting as a chancellor, and he is responsible for the decree. In actions of this character the judge may try the case without a jury, or he may submit special issues to the jury, but their finding of fact is not binding upon the chancellor. He may adopt or disregard the findings of the jury, or make findings of fact of his own, and render his decree thereon. In the case of Gallagher v. Basey, 1 Mont. 461, 462, this court held: “That, under and by virtue of the act organizing this territory, the supreme court, and the distinct courts, are clothed with chancery as well as common law jurisdiction, and, in the exercise of the authority thus conferred, the forms of proceedings must conform to the well-known and recognized distinctions pertaining to said jurisdictions as limited by law; that is to say, causes in equity wherein equitable relief is demanded, or where an equitable defense is made to. a claim at law, must be tried as in a court of chancery, and that the decree must proceed from the judge sitting as a chancellor, and it would be error in the class of cases described to try them as at law to a jury; that it is competent to limit and control, by statute, the forms of proceedings in actions at law and suits in equity, but that no statute and no law of our legislature can, in any
All this applies strongly to the case we are considering; for here, as in the case cited, the court, in rendering its decree, disregarded some of the findings of the jury, and adopted others of their findings as its own; and, as to .some questions of fact, made independent findings upon the proofs and admissions in the pleadings, treating the findings of fact by the jury as merely advisory, but not binding upon the court. This, finder the authority cited, was clearly within the authority and jurisdiction of the court, and the decision in the case of Gallagher v. Basey is approved.
The force of this is not invalidated by the act of congress of April, 1874, which declares that it shall not be
Subsequent to the enactment of that statute (October, 1874), the supreme court of the United States, in the case of Gallagher v. Basey, 20 Wall. 679, appealed from the supreme court of this territory to that court, says: “By the organic act of the territory,, the district courts are invested with chancery and common law jurisdiction. The two jurisdictions are exercised by the same court, and under the legislation of the territory the modes of procedure, up to the trial or hearing, are the same, whether a legal or equitable remedy is sought. The suitor, whatever relief he may ask, is required to state, ‘in ordinary and concise language,’ the facts of his case upon which he invokes the judgment of the court. But the consideration which the court will give to the questions raised by the pleadings when the case is called for trial or hearing, whether it will submit them to a jury or pass upon them without any such intervention, must depend upon the jurisdiction which is to be exercised. If the remedy sought be a legal one, a jury is essential, unless waived by the stipulation of the parties; but if the remedy sought be equitable, the court is not bound to call a jury, and if it does call one, it is only for the purpose of enlightening its conscience, and not to control its judgment. The decree which it must render upon the law and the facts must proceed from its own judgment respecting them, and not from the judgment of others. . . . The formal distinctions in the pleadings and modes of procedure are abolished; but the essential distinction between law and equity is not changed. The
The provision of our Code of Civil Procedure is the same as that of California, and provides that, in all cases, issues of fact must be tried by a jury (E. S. 83, sec. 251); but the decision of the supreme court of the United States, since the act of congress of 1874, validating and confirming the codes and rules of practice in the territories which presci'ibe a uniform course of proceeding in all cases, whether legal or equitable, and the decision of our own supreme court before that act, under a code containing the same provision as to the trial of questions of fact, ought to be conclusive upon the question that an equity case should be tried by the court, and that it is
2. Was it necessary for the court to have found that the defendant knew of the existence of the Pay Streak location and claim at or before the date of his application for a patent to placer ground, in order to have rendered a judgment in favor of respondents?
The statute of the United States providing the manner and mode of proceeding to obtain a placer patent to ground that does or does not contain within its boundaries a lode mining claim is as follows (E. S. U. S. sec. 2333): “Whenthe same person, association or corporation is in possession of a placer claim, and also a vein or lode, included within the boundaries thereof, application •shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such •case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of $5 per acre for such lode ■claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer not embracing any vein °or lode claim, shall be paid for at the rate of $2.50 per acre, together with all •costs and proceedings; and where a vein or lode such as is described in section 2320 is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed -as a ■conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein of lode in a placer claim is not known, a patent for the placer claim shall convey all valuable minerals or other deposits within the boundaries thereof.”
There is a vast difference between a vein or lode and a vein or lode mining claim. A vein or lode may be entirely concealed beneath the earth’s surface, and unknown to exist, while a lode mining claim is on the surface, exposed to view, designated by stakes and monuments, so that its boundaries may be readily traced, besides a notice posted on the claim and a record of the location in the proper county. By the terms of the statute, it is a vein or lode in a placer claim, the existence of which is not known, that the placer- patent carries with it. There is no provision in the statute which authorizes the placer claimant to acquire title to a lode mining claim by virtue of his placer patent. If the lode mining claim is known to exist, the placer applicant must also apply for a patent for such lode mining claim. He acquires no title to the lode claim by virtue of his placer patent; and if he makes no application for the lode claim, he is conclusively presumed to have no right to or interest in it. The theory of the statute is, that a vein or lode of quartz may exist in placer ground that is unknown, because it may be concealed beneath -the surface, and afterwards uncovered by working the placer claim; but no such presumptions can arise as to a lode mining claim, which must exist on the surface, and be distinctly
In the case of The Silver Bow Mining Co. v. William A. Clarke et al. 5 Mont. infra, decided at the present term, this court used the following language: “Having discovered a vein or lode and made a location thereon according to law, the locator then becomes entitled to the exclusive right to the possession and enjoyment of all the surface ground included within the lines of his location. This is the express provision of the statute, section 2322, and is in harmony with section 2319, which declares that the ground in which the mineral deposit may be found shall be open to ■'occupation and purchase. The right to acquire the full title which attaches to and accompanies every valid location of a mining claim, ought to be, and is, followed by the right to the exclusive possession and enjoyment of the soil of such claim. . . . This statute is a pre-emption law, and by the location of a mining claim under it, the grounds included within the boundaries of the location are just as much
The land included within the boundaries of the Pay Streak mining claim having been thus sold and withdrawn from the public mineral lands, by what law or authority is it included in a placer patent and sold again to some other person? If the government issues a patent for lands that have been previously sold or reserved for sale, the patent is so far void. Steel v. Smelting Co. 106 U. S. 450; Patterson v. Winn, 11 Wheat. 380; New Orleans v. United States, 10 Pet. 662; Reichart v. Felps, 6 Wall. 160; Best v. Polk, 18 Wall. 112; Morton v. Nebraska, 21 Wall. 660; Stoddard v. Chambers, 2 How. 284; Polk's Lessee v. Wendell, 9 Cranch, 99; Polk's Lessee v. Wendell, 5 Wheat. 293; United States v. Tichner, 12 Fed. Rep. 415; Smelting Co. v. Kemp, 104 U. S. 664; Copp’s Mineral Land Laws, 282.
And whether the elder title or grant is “known” to the subsequent claimant is wholly immaterial. A lode claim location being perfected according to law and recorded in the proper county as the law directs, and not abandoned or forfeited in any way, is a title that the locator, or his grantees in good faith, may hold and defend against every other person or claimant by a subsequent acquired title. His right to the ground located
It is claimed that the reservations in the placer patent
This action is not an attack on the placer patent, but is an inquiry as to what was conveyed by the patent under the statute by virtue of which it was issued. Appellant’s patent is good so far as it was authorized by law, and respondents do not impeach it or question it to that extent. They seek to show what, under the statute by virtue of which the patent was-issued, was conveyed by it. A patent issued in pursuance of law is conclusive upon the legal title, but if issued for lands previously sold or reserved from sale, it has no effect upon the legal title, for the reason that it is not issued in pursuance of law, and is, therefore, void. It was not necessary that the owners of the Pay Streak mining claim should have filed any protest or adverse claim to the placer application of appellant. They did not own or claim any interest in
It was found by the jury as a fact, and adopted and approved by the court, that the grantors of respondents, in April, 1818, and six months before appellant’s application for a patent on the public mineral lands of the United States, discovered a vein or lode of quartz or other rock in place, bearing silver, gold and other valuable deposits, within the boundaries of the ground mentioned in appellant’s application, and thereupon made a location of the Pay Streak mining claim, by virtue of, and including, such discovery, by staking the same so that its boundaries could be readily traced, and posting a notice on the claim within the boundaries thereof, and having the same recorded in the proper county, in pursuance of law. It was a perfected lode claim location, and so continued in full force and effect at the time when the appellant applied for and obtained a placer patent for the same ground. The placer patent is void as to the ground included within the boundaries of the lode claim location.
The judgment is affirmed.
Judgment affirmed.