21 F. 693 | U.S. Circuit Court for the District of Colorado | 1884
This ease eom.es before me on a petition for rehearing on an order of Judge Hallett, denying an injunction. The defendants have a patent, and therefore hold the legal title. It is beyond question that, as a matter of fact, they discovered mineral within the limits of their location. It is also beyond question that they complied with all the preliminary steps for obtaining a patent, iueluáingíhe 60 days’ publication of notice, and that no adverse claim was filed by the complainants or their grantors during the pendency of such publication. It also appears that after the publication of notice had been complete^, the complainants challenged before the local land-office, as well as before the department at Washington, the right of the defendant to a patent. That contest was protracted. Many hearings were had before the local land-office as well as at 'Washington, and as the result thereof the title of the defendants was sustained and the patent issued. Question is made as to -whether the defendants discovered mineral in their discovery shaft, and aiso whether complainants had discovered mineral prior to the publication of the notice.
Now, some general propositions may well be stated: First, the government, as the original owner, offers the title to these mineral lands upon certain conditions to whomsoever discovers mineral. The amount of land it will convey to each locator is limited, and certain forms of procedure are prescribed, but the primal fact is that the lands are offered to those who discover the mineral. In this matter the government resembles a private land-owner who mates an offer to sell his lands upon specified conditions. When the patent issues the title passes from the government, and no one can question that title who has not prior thereto, by compliance with the conditions
“This complainant cannot be heard unless he connect himself with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent, and he must possess such equities as will control the legal title in the patentee’s hands. Boggs v. Mining Co. 14 Cal. 279. It does not lie in the month of a stranger to the title to complain of the act of the government with respect to it. If the government is dissatisfied, it can, on its own account, authorize proceedings to vacate the patent or limit its operation.”
So, whether or not it is essential, under the state law, that there be a discovery of mineral in the discovery shaft, no one can raise that question after the issue of the patent, unless he have prior equities in the land. Indeed, as the primal fact is the discovery of mineral, I do not see how the government can avoid its patent on the ground that there was no mineral discovered in the discovery shaft, provided it was, in fact, discovered within the location; and this, notwithstanding it may be conceded that the state law is operative, and requires a discovery in the discovery shaft. This, like the time of publication of notice, the filing of the plat, etc., is mere matter of procedure, and, if the substantive fact of the discovery of mineral exists, I do not see how the government, for any irregularities or defects of procedure, can equitably avoid its patent.
Again, it is, as stated, conceded that no.adverse claim was filed by the complainants, and I think it follows therefrom that judgment has gone against them as to all claims which they may have had or supposed they had. The language of the statute is somewhat peculiar, and its peculiarities were commented upon by Judge Hallett in the opinion filed. It reads:
“If no adverse claim shall have been filed with the register and the receiver of the proper land-office at the expiration of the sixty days, of publication, it shall be assumed that the applicant is entitled to a patent upon the payment to the proper officer of .§5 per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.” Section 2325, Rev. St.
“It shall be assumed, that no adverse claim exists.” By whom assumed, for what purpose, and to what extent ? By the government, the owner of the land, the party offering it for sale; in order that the claims of all other parties to the land and the benefit of the owner’s offer be presentee! and determined, and that thereafter the government may deal with the applicant alone, inquiring simply whether he has performed the prescribed conditions; and conclusively assumed. The proceedings before the land department are ju
Conclusively assumed, any other rule would destroy the practical value of the provisions. If, notwithstanding his failure to adverse, a party may still present and litigate his rights, of what use to adverse? A failure to do so might give his adversary the advantage of a prima, facie title, but the real question, the absolute rights, would remain undetermined. The applicant would hesitate to improve and develop his property because ignorant of what contests were before him, what claims might be presented. And the contestant might wait till the evidence in favor of the applicant’s right had ceased to exist, or passed boyond his control, and then unexpectedly come forward with his claims. I do not mean that cases may not arise in which equity will interfere thereafter, if there be equitable grounds for interference, as where, by the acts of the applicants, those who might have adversed have been prevented, deceived, or misled; but unless such equitable reasons exist, and none such appear in this case, he who fails to adverse until the expiration of publication is absolutely cut off, and cannot be heard to say that ho has prior rights.
Judge ILvllktt, in his opinion, finds that these complainants were in a position to adverse at the time of this publication. Notwithstanding the averments of the last bill and the affidavit of Mr. Wight, I think the general scope of the testimony sustains that finding. But it is said by counsel that, under the last clause of the statute quoted, auy person may object that the applicant has failed to comply with the terms of the chapter; and,wliy should they not have the same privilege as strangers ? Have they forfeited this right by failing to
These in brief are my views, and, without pursuing the discussion further, I sum up these propositions: First, the government, as a land-owner, offers its lands for sale upon certain prescribed conditions, compliance with which is a matter of settlement between thd .owner and purchaser alone, and with which no stranger to the title can interfere; second, publication of notice is process bringing all adverse claimants into court, and if no adverse claims are presented it is conclusively presumed that none exist, and that no third parties have any rights or equities in the land; third, thereafter the only right or privilege remaining to any third parties is that of protest or objection filed with the land department, and cognizable only there; if sustained by the department, the proceedings had by the applicant are set aside; if overruled, the protestant or objector is without further right or remedy.
Entertaining these views, I think the petition for rehearing must be denied