33 Colo. 410 | Colo. | 1905
delivered the opinion of the court.
Action in support of an adverse claim. The property in dispute consists of two lode mines which appellant and plaintiff company claims under the names of The Snowdrop and John Borland, and appellees and defendants, as the Gertrude and Modena lodes. The plaintiff holds final receiver’s receipts, and defendants base their title upon valid locations made after the entries, under which plaintiff’s grantor obtained receiver’s' receipts, had been duly canceled by the interior department; which locations were followed up by full compliance with the-state and federal statutes relating to the acquisition of mineral lands.
Briefly stated, the facts are that the plaintiff’s grantor, a corporation, by its .letter of attorney, appointed W. IT. Echols, Jr., as attorney in fact to
This decision of the register and receiver was communicated, and the files and records, on which the same was based, were transmitted, to the commissioner of.the general land office in Washington, in accordance with the established practice. On December 16, 1886, the commissioner, in examining the records, discovered that there were certain defects in the proof, and wrote to the local land office specifying what these defects were, and requiring notice to be given to the claimant to supply the omissions. Such notices were sent by registered mail to the attorney in fact of the claimant, but the proofs were never supplied. Because of such failure, on July 25, 1890, the commissioner held the entries for cancellation, notice of which was sent to, and received by, Echols, and no response having been made thereto, the commissioner, in accordance with the rules of the department, on the 14th of November, 1890, finally canceled the entries. After that time, the defendants and appellees here acquired whatever rights they have to the ground in controversy. If their locations were made on unappropriated public domain, they are entitled to a recovery, for plaintiff did not enter upon the claims, or resume work, before the defendants’ rights intervened.
It will be observed from the foregoing recital of facts, as found by the commissioner, that the vital and only important question in the case is whether or not that officer had jurisdiction to cancel the
The plaintiff concedes that the commissioner had jurisdiction to cancel these entries, for a failure of the proof to show a compliance hy the claimant with the provisions of the mining laws, or the rules and regulations of the interior department pertaining to the disposition of public lands, provided notice was given to the claimant and an opportunity to be heard afforded. Its contentions here are, first, that notice was not given; and, second, as a matter of law, its grantor made a full compliance with the mining laws and the rules and regulations of the interior department, before the receiver’s receipts were issued, and, therefore, it was beyond the power of the commissioner to cancel the entries for any cause whatever.
The question as to whether or not notice was given by the department, or received by the claimant, is one of fact, and not of law. The rule is that the decision of the proper officers of the interior department in matters within its jurisdiction upon questions of fact, is conclusive upon the courts in the absence of fraud, perjury, or some such vice. If so, no such fraud being claimed, we are estopped to' review the findings of fact made by the commissioner in this case. But the plaintiff argues that the department holding that Echols, plaintiff’s attorney in fact, was given notice, is the result of a misapplication or misconstruction of the law. The,argument is1 based upon the fact that the defendants, at the trial below, produced certain records of the department and a number of letters that passed between the commissioner and the local officers, and that therefrom it affirmatively appears that notice of the proposed canceling of its entries was never received by the claim
It may be true that it is a question of law whether a paper, purporting to be notice, which has been received, constitutes due notice, but it is not a ques-. tion of law whether a notice, concededly regular and sufficient, has, or • has not, actually been given • or received. ' ■
2. The other contention of plaintiff that its grantor complied with the federal and state laws and the regulations and rules of the land- office, relative
As plaintiff’s case rests entirely upon the proposition, which we have held unsound, that the action cf the commissioner in canceling its entries was unauthorized, it follows that it is without merit. The judgment of the district court, being in accordance with our views, was right, and it should be affirmed.
Affirmed.
Chief Justice Gabbeet and-Mr. Justice Steele concur.