130 F. 293 | 9th Cir. | 1904
The demurrers of the various defendants raise several objections to the bill, but one of which it is necessary to
The doctrine that neither laches nor limitation runs against him who is in actual possession is wholly inapplicable to the facts alleged in the present bill, the substance of which is, so far as applicable to the ground upon which we rest our judgment, that on the 21st day of September, 1867, William S. Bell, Charles Bell, F. X. Banks, John W. Rock, John D. Elwanger, J. M. Epperson, Bedford Manning, W. W. Davis (sometimes called Henry H. Davis), P. K. Epperson, William T. Lane, James H. Lane, Katherine Lane, Alice Lane, and J. B. Epperson, each of whom was then a citizen of the United States, finding a certain portion of the public domain unoccupied and vacant, and not owned or held or claimed by any one, entered thereon, and discovered therein a lode or vein of mineral-bearing ore in place, carrying cinnabar, whereupon they located the same as the Socrates Quicksilver Mines, by the erection of monuments at each of the corners of the claim and at or near the center of each end line thereof, and by placing in one of the monuments a written notice of the location of the claim, designating the same as a location monument, all of which monuments were erected in conspicuous places, and were so placed as that the boundaries of the claim could be readily traced on the ground; that the ground so located was situated in Cinnabar mining district, Sonoma county, Cal., in which district the locators caused a record of the notice of their location to be made with the recorder of the mining district on the 13th day of October, 1867, and on the 24th day of the same month caused the same notice to be recorded in the office of the recorder of the county. It will be noticed that, according to the averments of the bill, there were but 14 of these locators; but it would seem from subsequent averments that there were really 15, and that one — George M. Parker — was inadvertently omitted from the list. We shall so treat the bill.
It is averred that at the time of making the location of September 21, 1867, the locators took possession of the claim, and continuously held, occupied, and improved the same, in accordance with the rules, regulations, and customs of the miners of the district in which it was situate, and with the laws of the United States and of the state of California, and expended in labor and improvements thereon more than $1,000, and held exclusive and unopposed possession of the whole thereof until February 2, 1869; J. M. Epperson, however, having in the meantime and on the 15th day of January, 1869, conveyed his interest in
Thus the alleged fraud complained of was initiated in February, 1869, by the application to the United States for its patent to the mine; was followed up by the alleged fraudulent deed of March io, 1869, duly recorded July 1, 1871, and by the issuance and recordation of the patent in the year 1874, based upon the alleged false and fraudulent proofs and representations. The bill herein was filed February 7, 1903 —nearly 34 years after the beginning of the alleged frauds, and more than 28 years after their consummation. There is nothing in the bill to excuse the gross laches of those under whom- the complainant corporation claims. It is not alleged when they first became aware of the alleged fraudulent scheme in pursuance of which the patent was applied for, or of the “sham and pretended proofs” (whatever that may mean) upon which the application wias based. But they must be held to have had knowledge of all the proceedings for the patent, for they were matters of public record, of which it has been many times held the whole world must take notice. There is nothing in the bill tending to show that those under whom the complainant claims ever held actual possession of the ground in question after the making of the application for the patent, and it affirmatively appears from the bill that the whole of the property was held adversely to the complainant’s grantors by the defendants, and those under whom they claim, from March 10, 1869. And again, it appears by express averment of the bill that as early as August 27, 1874, and within a few days after the issuance of the patent, the patentees and their successors in interest expressly repudiated and ignored any interest in the grantors of the complainant, and claimed the whole property as their own. Yet the complainant and its grantors continued to sleep upon whatever rights they may have had for a period of more than five times as long as that prescribed by the statute of limitations of the state in which the property is situate for the recovery of land in an action at law. It is not often that a stronger case is presented to a court of equity for the application of the doctrine of laches. Moreover, it affirmatively appears from the bill that during the many years that intervened between the commission of the alleged frauds and the bringing of the suit the condition of the property, as well as of the parties whose acts are complained of, have greatly changed, many of the latter having long since died, and are therefore not able to testify as to the truth or falsity of the alleged frauds.
In respect to the changed condition of the property, it appears from the bill that from the time of the application for the patent in the year 1869 to the month of January, 1900, no work of any character was done upon the property, during which long period of about 30 years
The judgment is affirmed.