214 F. 32 | 9th Cir. | 1914
(after stating the facts as • above).
We are of the opinion, also, that both the lode locations were rendered void ab initio so far as they included any of the land in controversy by the judgment in the adverse proceedings. Section 2326 of the Revised Statutes (U. S. Comp. St. 1901, p. 1430), under which the adverse proceeding was had, requires the adverse claimant to commence proceedings in a court of competent jurisdiction.to determine the question of the right of possession, and declares that his failure to do so shall be a waiver of his adverse claim, and that after judgment the whole proceeding and the judgment shall be certified by the register to the Commissioner of the General Land Office, and the statute provides that a patent shall issue thereon for the claim “or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess.” There is no question here involving the doctrine established by Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735, Noyes v. Mantle, 127 U. S. 348, 8 Sup. Ct. 1132, 32 L. Ed. 168, Brown v. Gurney, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717, and Farrell v. Lockhart, 210 U. S. 142, 28 Sup. Ct. 681, 52 L. Ed. 994, 16 L. R. A. (N. S.) 162, to the effect that mineral ground covered by a valid locátion is, during the life of the location, segregated and not open to location by another, and that, until a location is terminated by abandonment or forfeiture, no right or claim to the property can be acquired by an adverse entry thereon, with a view to the relocation of the same. In Duffield v. San Francisco Chemical Co., 205 Fed. 480, 123 C. C. A. 548, we said:
*36 “By these statutes there was relegated to a court the Jurisdiction to determine the right, of possession between the adverse claimants. The determination of that question necessarily involves, not only the question which of the adverse claimants was prior in time in.making location, and whether the location was made in compliance with the law, hut also the question whether the land occupied and covered by the location was subject to location in the manner in which it was attempted to be acquired.”
In Iron Silver Min. Co. v. Campbell, 135 U. S. 286, 10 Sup. Ct. 765, 34 L. Ed. 155, the court said that the result of the judicial investigation “shall govern the action of the officers of the Rand Department in-determining which of these claimants shall have the patent, the final evidence of title, from the government.”
And in Mining Co. v. Tunnel Co., 196 U. S. 337, 357, 25 Sup. Ct. 266, 275 (49 L. Ed. 501), the court said that the -decision of a conflict between two mining claimants is “a decision which will enable the Rand Department without further investigation to issue a patent for the land.”
The question remains whether, at the time of the application for the placer patent, there were known veins or lodes within the ground described in the application for patent so that, by operation of law, they were excluded from the patent. In United States v. Iron Silver Min. Co. 128 U. S. 673, 683, 9 Sup. Ct. 195, 199 (32 L. Ed. 571), which was a suit brought by the United States to set aside placer patents on the ground that the' patented tracts were not placer mining ground but
“It is undoubtedly true that not every crevice in the roots, nor every outcropping on the surface, which suggests the possibility of mineral, or which may, on subsequent exploration, be found to develop ore of great value, can be adjudged a known vein or lode within the meaning of the statute.”
The evidence is convincing that, within these definitions, no vein or lode had been discovered in any of the shafts that had been sunk on the ground in controversy in this suit, prior to the date of the application for the patent. Nor was there any outcropping of a vein or lode on the surface of the ground nor any mineral-bearing vein in the surrounding country which might be traced to run in that direction.
The decree is affirmed.