211 F. 100 | 9th Cir. | 1914
The appellant had acquired patents to two placer claims, aggregating 257 acres of land, the locations having been made in 1901 and 19Ó2, and the patents having been issued on October 31, 1904. One was known as the Peabody claim, and the other as the Wickham claim. The Peabody claim extends about a mile on both sides of .the Nespelem river, just above its juncture with the Columbia river, and the Wickham claim lies to the northwestward thereof, and the main portion .of both lies about 70 feet above the Columbia river. In the Peabody claim the Nespelem river has a fall of 170 feet. The appellee brought a suit to set aside the patents on the ground of fraud, alleging that said lands were not mineral lands, that no mineral in paying quantities had ever been discovered thereon, and that the patents had been obtained upon false affidavits. The appellant denied the allegations of fraud, and denied its knowledge of any
Other facts adduced in evidence tend strongly to corroborate the conclusion that the lands were entered in fraud of the land laws of the United States, and that the purpose of the placer claimants was not to mine the placer claims, but to secure control of the valuable water power of the Nespelem river, and incidentally to use the lands covered by the placer claims for raising fruit, a purpose to which they were adapted, and to which other lands similarly situated along the Columbia river in that region have been devoted. Among the items of evidence which may be adverted to as supporting this conclusion is the fact that in all the years since their location no mining has been done on these claims; that upon the issuance of the patents in 1904, all exploitation of the claims as placer ground was abandoned; that in' September, 1902, after these claims had been located, the articles of incorporation of the appellant were amended so as to give the company power to acquire lands for town-site purposes, rights of way for ditches, canals, water courses, and reservoirs, to contract for and maintain electric franchises, and maintain and operate saw mills, etc. This
“AH along the basin of the Columbia the peculiar conditions of soil and climate create the most favorable conditions known for the production of all kinds of fruit” • . '
—and-reference was made to the lands above and below Wenatchee, which “are to-day held at from $500 to $3,000 per acre,” and it was said:
“Any company so situated as to be able to irrigate land on the Columbia basin by water power or otherwise have an immense fortune in their grasp.”
Again:
“We have acquired the great water power of the Nespelem river, constructed a dam across it above the falls, with head gate, flume,” etc.
There was nothing in the literature so issued directing attention to the gold placer claims in controversy, or expressing the purpose of the appellant to mine the same.
“The facts which are within the observation of the discoverer, and which induce him to locate, should be such as would justify a man of ordinary prudence, not necessarily a skilled miner, in -the expenditure of his time and money in the development of the property.”
In the present case the proof is convincing that there was not only no discovery, but that there was never at any time any intention on the part of the locators or the appellant to mine the so-called placer claims.
The decree is affirmed.