30 Nev. 114 | Nev. | 1908
Lead Opinion
By the Court,
The respondents, who were plaintiffs in the district court, brought this action to recover certain claims called the "Unions” with designated numbers, situated in the Manhattan Mining District, and which had been located on the 24th and 25th days of July, 1905. It was also stated in the complaint, that the defendants were breaking down and removing large quantities of ore from the premises, and the prayer was for the recovery of possession, for an injunction, and for $10,000 damages. The defendants, who are the appellants here, set up ownership and possession of the ground in themselves under the Liberty and Justice mining claims, located September 29, 1905. The contending parties alleged that the respective locations on which they relied had
Upon the trial, and also upon the hearing in this court, respondents relied upon the case of Lavagnino v. Uhlig, 198 U. S. 443, 25 Sup. Ct. 716, 49 L. Ed. 1119, contending that the facts there are similar to those in the present ease, and that the law applicable to them has been settled by the latest expression of the highest tribunal. It is admitted by counsel for appellants that the language in the decision in that case is in conflict with Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735, and other decisions of that and other courts favorable to appellants; but it is claimed that it is overruled by a later decision of that court in Brown v. Gurney, 201 U. S. 184, 26 Sup. Ct. 509, 50 L. Ed. 717. Eeeognizing that it is the special prerogative of the Supreme Court of the United States
Congress, in the proper exercise of its control over the public domain, by act of May 10, 1872, c. 152, sec. 2 (section 2319 of the Revised Statutes [U. S. Comp. Stats. 1901, p. 1424]), provided "that all valuable mineral deposits in lands belonging to the United States are free and open to exploration, occupation and purchase by citizens and those who have declared their intention to become such, under regulations prescribed by law.” Section 2322 [page 1425] provides that "the locators of all mining claims, so long as they comply with the laws of the United States and with state and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right and enjoyment of all the surface included within their lines of location and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically” within planes drawn through parallel end lines. Section 2324 [page 1426] provides that "the location must be distinctly marked on the ground so that its boundaries can be readily traced; * * * that on each claim located after the 10th day of May, 1872, and until a patent has been issued therefor, not less than one hundred dollars worth of work shall be performed or improvements made during each year; * * * and upon a failure to comply with these conditions the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location had ever been made; provided that the- original locators, their heirs, assigns, or legal representatives have not resumed work upon the claim after failure and before such location.”
Section 208 of the Compiled Laws of Nevada directs that any person, a citizen of the United States, or one who has
It is the contention of the appellants that the Portland locations, if made on the 1st day of July, as they offered to prove, withdrew the land from location for ninety days, during which time the respondents could initiate no rights upon it; that as the ten feet of work required by the state statute was not done upon these claims within ninety days after they were located, upon the expiration of that period they became, similarly as upon a failure to do the annual work required by the federal statute, subject to relocation by the appellants at the time they made their locations. As the language of the opinion in the Uhlig case stands opposed, not only to the law as established by Belk v. Meagher and as held by lawyers and miners for a quarter of a century, but to numerous decisions of the court, state and federal, in the mining states, and to others of the Supreme Court of the United States, it will be advantageous to consider the Belk case as the leading one, representative of numerous others, and compare the two.
The facts in both are similar to the one before the court, in that the contest here is between a claim alleged to have been located upon ground covered by a prior, valid, existing location, and a relocation made upon the same ground after the expiration of the time for doing the required work on the senior claim. In regard to the periods of time between the making of the locations of the contestants, the Belk case is more like the one before the court than Lavagnino v. Uhlig. In the Belk ease it was conceded by both parties that the
The following extracts from the unanimous opinion of the court, written by the Chief Justice, in Belk v. Meagher, are appropriate: "Mining claims are not open to relocation until the rights of a former locator have come to an end. A relocator seeks to avail himself of mineral in the public lands which another has discovered. This he cannot do until the discoverer has in law abandoned his claim and left the property open for another to take up. The right of location upon the -mineral lands of the United States is a privilege granted by Congress; but it can only be exercised within the limits prescribed by the grant. A location can
In the Uhlig case, which was by a divided court, no intention of overruling any conflicting decision is expressed; but, in referring to certain text-books, it was said: "Statements are found which seemingly indicate that in the opinion of
This inference finds further support in the language of that tribunal in Mining Co. v. Tunnel Co., 196 U. S. 342-3, 25 Sup. Ct. 266, 49 L. Ed. 501, submitted at the same term, in Brown v. Gurney, 201 U. S. 191, 26 Sup. Ct. 509, 50 L. Ed. 717, determined a year later, and in Clipper Mining Co. v. Eli Mining Co., 194 U. S. 226, 24 Sup. Ct. 634, 48 L. Ed. 944, decided one year previously, in which the court said: "It will be seen that section 2322, Rev. Stats. [U. S. Comp. Stats. 1901, p. 1425], gives to the owner of a valid lode location the exclusive right of possession and enjoyment of all the surface included within the lines of the location. That exclusive right of possession forbids any trespass. No one without his consent, or at least his acquiescence, can rightfully enter upon the premises or disturb its surface by sinking shafts'or otherwise. It was the judgment of Congress that, in order to secure the .fullest working of the mines and the complete development of the mineral property, the owner thereof should have- the undisturbed possession of not less than a specified amount of surface. That exclusive right of possession is as much the property of the locator as the vein or lode by him discovered and located. In Belk v.
"In St. Louis Mining Co. v. Montana Mining Co., 171 U. S. 650, 655, 19 Sup. Ct. 63, 43 L. Ed. 320, the present Chief Justice declared that,' Where there is a valid location of a mining claim, the area becomes segregated from the pub; lie domain and the property of the locator.’ Nor is this 'exclusive right of possession and enjoyment’ limited to the surface, nor even to the single vein whose discovery antedates and is the basis of the location. It extends (so reads the section) to 'all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically.’ In other words, the entire body of ground, together with all veins and lodes whose apexes are within that body of ground, become subject to an exclusive right of possession and enjoyment by the locator. And this exclusive right of possession and enjoyment continues during the entire life of the location, or, in the words of Chief Justice Waite, just quoted, while there is a 'valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States.’ There is no provision for, no suggestion of, a prior termination thereof. * * * And, if the surface is open to the entry of whoever seeks to explore for veins, his possession can be entirely destroyed. In this connection it may be well to notice the last sentence in section 2322, * * * which is a limitation on such right,.and reads: 'And nothing in this section shall
Cases supporting this legal principle, including Brown v. Killabrew, 21 Nev. 438, are cited in the decision of the District Court of Nye County rendered last year in Ford v. Brown.
The opinion in the Chlig case quotes at length and relies upon section 2326 of the Revised Statutes, Act Cong. May 10, 1872, c. 152, sec. 7, 17 Stats. 93 [U. S. Comp. Stats. 1901, p. 1430]. This section relates to the procedure where an adverse claim is filed upon an application being made for patent. There is nothing in its language as to whether a second location, made before, may prevail over a third location, made after, failure to do the required work, and nothing is stated in regard to the time when claims become subject
For the purpose of making the time uniform for doing the annual work, and for the relocation of claims on which such work is not performed, section 2324 was amended eight years later by the act of January 22, 1880, c. 9, sec. 2, 21 Stats. 61 [U. S. Comp. Stats. 1901, p. 1426], so as to provide that the period within which the work is required to be done annually on all unpatented mining claims shall commence on the 1st day of January succeeding the date of location. In the Uhlig opinion the court said: "It cannot be denied that under section 2326, if before abandonment or forfeiture of the Levi P. claim, the owners of the Uhlig locations had applied for a patent, and the owners of the Levi P. had not adversed the application, upon an establishment of & prima facie right in the owners of the Uhlig claims, an indisputable presumption would have arisen that no conflict claims existed to the premises described in the location notice. (Gwillim v. Donnellan, 115 U. S. 45, 51, 5 Sup. Ct. 1110, 29 L. Ed. 348.). And the same result would have arisen had the owner qf the Levi P. adversed the application for a patent based upon the Uhlig locations and failed to prosecute and waived such adverse claim. In both of the supposed instances the necessary consequence would have been to conclusively.determine in favor of the applicant, so far as the rights of third persons were concerned, that the land was not unoccupied public land of the United States, but, on the contrary, as to such persons, from the time of the location by the applicant for the patent, was land embraced within such location and not subject to be acquired by another person. And this result, flowing from the failure of the owner of a subsisting senior location to adverse an application for patent by the owner of an opposing location, or his waiver if an adverse claim is made, must, as the greater includes the lesser, also arise from the forfeiture of the claim of the senior locator before an application for patent is made by the conflicting locator, and the consequent
By this language it is correctly stated at tbe beginning that where there are two claimants, and one applies for patent, tbe other may lose bis rights under section 2326 by failing to adverse. Under tbe peculiar and unusual circumstances, tbe result in tbe Ublig case was correct, and could have been justified on another ground; but we are unable to perceive the force and correctness of tbe conclusion, on which tbe opinion was based, that because a claimant may waive bis rights in proceedings for patent under section 2326, and because a senior locator may forfeit bis, that therefore a mining claim is subject to relocation, or, what is tbe same thing, a junior or second location may be initiated on tbe ground as soon as tbe first location has been made, instead of upon tbe failure of the first locator to perform tbe required work as enacted by tbe statute. By a literal construction what is called a modification, we think, in effect would be a judicial repeal of a plain enactment, supported only by reference to another section which has no application. Tbe language used is equivalent to saying that because a claimant may waive bis right under section 2326 by failing to adverse, and a senior locator may forfeit bis, therefore mining locations do not become subject to relocation upon the failure to do tbe required work as provided by section* 2324, but that they may be relocated and rights initiated at any prior time.
Tbe sections relating to proceedings upon application for patent are for tbe purpose of enabling claimants to obtain a final grant of tbe legal title from the government for ground previously acquired and to avoid any necessity of doing tbe
Surely it will not be contended that Congress has not the power to regulate the disposition of the unappropriated public mineral lands. The statute having clearly provided that these are open to location by citizens of the United States and those who have declared their intention to become such, and that the locators of mining claims, upon complying with the laws, shall have the exclusive right of possession and enjoyment of the surface included within the lines of their locations, and that claims shall be subject to relocation upon the failure to do the required work, these provisions ought not to be nullified or repealed by the courts because there is another section providing that a claimant may waive his right by a failure to adverse when application has been made for a patent, or because a senior locator or others who are not parties to the litigation may forfeit their rights by failing to do the required work. It is the duty of courts to construe and interpret the laws; but they should be careful not to encroach upon the legislative department, or set aside statutes, federal or state, except when they are clearly in conflict with the Constitution. As the Uhlig case was. one on adverse proceedings against an applicant for patent, the decision being based on the statute regulating these, anything the court said regarding the rights or forfeiture of an applicant in such proceedings may be considered as dictum in the present case, which is not on such proceedings. To enforce all the statements in that opinion in cases generally,
If the plain provisions of the statute are to be overthrown, after having been enforced by numerous courts and universally accepted for a generation, not only will vested rights be endangered, but, as said in that case: "To hold that, before the former location has expired, an entry may be made and the several acts done'necessary to perfect a relocation will be to encourage unseemly contests about the possession of the public mineral-bearing lands, which would almost necessarily be followed by breaches of the peace!’ Then, instead of claims becoming subject to relocation upon the 1st day of January and after failure to do the annual assessment, the ground might be relocated before there was any such failure, and a day, a month, or a year previously. If the junior locator may acquire rights by entering the ground before there is any failure to do the required work, and while the statute gives the exclusive possession to the senior locator, any number of locations may be made and rights initiated at any time prior to the one at which the statute states that the claim shall be subject' to relocation, and the person who follows the statute and makes the relocation on the 1st day of January will be too late, and may find -that the right to locate after failure to do the work has been acquired by one of several others in the order of their locations previously made and before the work was required to be done by the original locator. The one who located six or eleven months before the time in which the work was required to be done had expired would have a better right than the one who had located one or five months in advance of such time; but, if the former failed to do the required work on his part, the right would become initiated in the latter, which would preyail over anyone who relocated
In Montagne v. Labay, 2 Alaska, 575, the Uhlig case was examined, and it was held that it applies only in adverse proceedings, and only within its own limited sphere of exceptional facts, and Belk v. Meagher was followed, and held not to be overruled. In Hoban v. Boyer, 37 Colo. 185, 85 Pac. 837, decided more than a year after the Uhlig case, the Supreme Court of Colorado continued to adhere to the rule in Belk v. Meagher. In Lockhart v. Farrell (Utah) 86 Pac. 1081, the Supreme Court of Utah, the one by- which Lavagnino v. Uhlig had been determined, said regarding the decision by the Supreme Court of the United States in that case: "Giving the Lavagnino case the construction contended for by the respondent is, in effect, to make it overrule Belk v. Meagher and Gwillim v. Donnellan, and to render it in conflict with the decisions of both federal and state courts on the question. We do not believe any such result
Numerous decisions in the state and federal courts in the mining states and territories from the Mexican border to the Canadian line, apparently without exception, support Belk v. Meagher and Clipper Mining Co. v. Eli Mining-Company, supra, and Gwillim v. Donnellan, 115 U. S. 49, 5 Sup. Ct. 1112, 29 L. Ed. 348, in which it was said: "If, when one. enters on land to make a location, there is another location in full force, which entitles its owner to the exclusive possession of the land, the first location operates as a bar to the second.” . Quoting with approval from the opinion in the Belk case, Justice Hawley, speaking for this court, in Rose v. Richmond, 17 Nev. 57, said: "A relocation on lands actually covered at the time by another valid and subsisting location is void; and this, not only against the prior locator, but all the world, because the law allows no such thing to be done!’ In one end of the balance we have only the Uhlig case, based on a section of the Revised Statutes which has no bearing on the question involved; and against this we have the numerous decisions, cited and uneited, supporting Belk v. Meagher, including our own in Rose v. Richmond Mining Co., and the statutes which are clearly and directly applicable, and which would have to be overruled in order to maintain the judgment.
After the court had sustained an objection to the offer of appellants to prove that the notices of location were posted on the Portlands, and that they were valid* existing claims,
Erhart v. Boaro, 113 U. S. 530, 5 Sup. Ct. 561, 28 L. Ed. 1113, cited by appellants, is distinguishable; for it was said in the statement of facts there that "the evidence tended to show that, within ninety days from the discovery of the lode by Carroll, one French, on behalf of the plaintiff and Carroll, secretly caused the boundaries of the claim to be marked.” It was correctly held there that the forcible eviction of the discoverer and locator from the vein or lode before the sinking of the shaft required by the Colorado statute and the prevention of his reentry by threats of violence excuse him, as against the party keeping him out of possession, so long as he is kept out of it, from sinking the shaft required. There is no doubt that, if the locator discovered a vein and filed proper
Wejfind no errors in the record, except those resulting in different ways from the conclusion of the district court to adhere to the opinion in Lavagnino v. Uhlig. Upon the trial objection was sustained to evidence regarding the sinking of a shaft ten feet deep, or its equivalent, on the Unions, and the filing of certificates of location was objected to and withdrawn, because the work was not done and the certificates were not filed before this action was begun; and it is contended that proof of this work and the filing of those certificates were essential to plaintiffs’ recovery. There was no supplemental complaint or pleading alleging that the work was done or completed or that the certificates were filed after the commencement of the suit to warrant its admission. We have recently held in the case of Ford v. Campbell, 29 Nev. 578, that the filing of a certificate of location is not essential to the validity of the claim, but relates to matters of proof. If the Portlands were not valid and existing locations at the time the Unions were located,’ and the Unions were located on the unappropriated public domain by posting notices and marking their boundaries in accordance with law, respondents would have become entitled to hold them for the ninety days allowed for doing the work, and by instituting this suit prior to that time could recover a judgment for possession and damages to the end of that period. If, under these circumstances, respondents failed to do the required work within ninety days, the claims would become subject to relocation by the appellants or others.
The court sustained objections to a series of questions by which it may be surmised that defendants sought to prove, upon the cross-examination of plaintiffs’ witnesses, that the Portland notices were posted on the ground at the time the
The judgment is set aside, and the cause is remanded for a new trial, upon which defendants will be allowed to introduce evidence to show that at the time the Unions were lopated the ground was covered by the Portlands as valid and existing locations made by posting the requisite notices and by the defining of their boundaries within ninety days thereafter, and that by failure to do- the work required by the state statutes the Portlands had lapsed at the time the Liberty and Justice claims were located.
Concurrence Opinion
concurring:
I concur in the opinion of the Chief Justice, and express the following additional views, based upon my conception of the statutes and the decisions of the highest courts:
The right of respondents to offer proof that the Portland claims were valid and subsisting locations at the time the Union locations were made does not depend, as contended, upon any relations of privity between the locators of the Portland claims and themselves. They have the right to offer such proof, in order to establish the fact, if they can, that they have complied with the federal and state law as relocators of a prior existing claim, which had become, under the law, subject to relocation. Both the state and federal statutes have provided for the relocation of claims which have become subject to such relocation by reason of the failure to do the location work or annual assessment work provided for by law. A distinction is thus recognized, both by the federal and state laws, between a location and a relocation. If persons are claiming rights to the public domain as relocators, necessarily their rights depend upon the fact that a prior existing claim had become subject to forfeiture, and that by entering upon the ground and relocating it they had effected such forfeiture of the rights of the prior
