Clipper Mining Co. v. Eli Mining & Land Co.

29 Colo. 377

• Court: Supreme Court of Colorado
• Decided: January 15, 1902
• Docket: No. 4115
• Status: Published

Opinions

Chief Justice Campbell

delivered the opinion of the court.

The plaintiff in error (defendant below) owns four lode mining claims, situate in Lake county, called the Capital, Clipper, Congress and Castle lodes, and the defendants in error (plaintiffs below) own the Searl placer mining claim, within the boundaries of which these lode claims are located. The present controversy relates to the territory thus in conflict. The placer was the prior location, and was made in the year 1877. The plaintiff in error having made application in the land office for patent of its lode mines, the defendants in error filed therein an adverse claim, and within the statutory time brought this action in the district court of Lake county to enforce it.

The plaintiffs rely upon a prior location of the conflicting territory as part of their placer claim. The complaint is in the ordinary form in. actions of this character. After a general denial of the material allegations of the complaint, the answer sets up four separate defenses, all of which grow out of the ollowing facts, which, in varying language, are set up in each defense.

On the 12th of December, 1877, A. D. Searl and other's located the Searl placer, and on the 5th of July, 1878, applied for a patent therefor. Numerous protests were made against it, and on the 10th of November, 1882, an amended application was filed, against which protests were likewise made upon the ground that the same was not placer ground, and was only valuable for lode claims or townsite purposes. The land department ordered a special investigation to ascertain the character of the ground andjihe good faith of the applicant. The special agent declared that the land was not placer ground, and on the strength of his report a hearing was ordered before the local land office of the district, the result of which was a dismissal of the application, for it was not then made to appear, as a present fact, that the ground was distinctively valuable for mining purposes, or that the applicant had made the improvements required by statute. This ruling was affirmed by the commissioner of the land office, and in turn by the secretary of the interior. Twelve days after the latter’s decision the grantors of defendant company entered upon the ground within the boundaries of the placer location and thereafter located thereon the lode claims in question.

The special defenses sought to be interposed were substantially \ first, that plaintiff was not entitled to recover because, upon the previous application for a patent of the Searl placer, there was a decision of the land department that the ground included within its boundaries was not placer ground, and the attempted location was for that reason void, and such decision was res adjudícala of the present controversy; second, assuming the existence of a prior valid placer location, nevertheless defendant, prior to the time patent was asked, went upon the placer surface area and made locations of lode claims which were then and theretofore known to exist, and, therefore, in law the same were a part of the unappropriated public domain and subject to location as lode claims.

. There was a replication by plaintiffs denying the new and special matters of defense, and upon the issues thus joined,in a trial to the court without a jury, the findings were that the Searl placer was duly located as required by law in the year 1877, and thereafter the annual labor had been performed as the statute provides, and that defendant’s grantors had discovered the lode claims within the boundaries and subsequent to the location of the Searl placer. Based upon these findings of fact, the conclusion of law was drawn that a prior location of a placer carries with it the exclusive right of possession of the surface included within the exterior boundaries, and a prospector might not enter thereupon and prospect for, or discover, a lode claim before application for the placer patent is made, unless by abandonment the placer claimant has lost his rights. And there being no evidence of such loss it was accordingly held that the acts of defendant in entering upon the valid subsisting placer location did not initiate any right whatever. Judgment was therefore entered in favor of the owner of the placer location, and to reverse it this writ of error is prosecuted.

1. It is insisted by plaintiff in error that the land department, with which is entrusted the determination of such questions,-has declared this placer location void because not on placer ground, and that such determination is decisive of the present controversy. It is unquestionably the law that findings of fact by the land department as to matters within its jurisdiction are conclusive upon the courts whenever a collateral attack is made upon them. They may, in a proper proceeding, be impeached for fraud or mistake, but'not in actions like the present. This rule, however has no application to the facts in this record. The application for a patent to the placer was rejected, but there was no decision that the ground in question was not placer ground; but merely that, as a then present fact, there was not such a showing by the applicant as entitled him to a patent. Amended applications for a patent of a mining claim are permissible under the practice in the land department. There was ho attempt finally or definitely to determine that the ground was not placer ground, or that the location was void, and to that effect are its own decisions, as will be seen by reference to the official reports. 7 Copp's Land-Owner, 36; In re Searl Placer 11 Land Dec. 441; In re Clipper Mining Co., 22 Land Dec. 527.

In the last cash, the secretary of the interior, in speaking of the contention made in this very case,' says: “The judgment of the department in the Searl placer case went only to the extent of rejecting the application for patent. The department did not assume to declare the location of the placer void, as contended by counsel, nor did the judgment affect the possessory rights of the contestant to it.” See also Clipper Mining Co. v. Searl, 29 Land Dec. 137. Indeed, the question as to the character of the land sought to be appropriated by claimants under the public land laws is reserved—unless under the law referred to some court—-and may be passed upon by the department until patent issues. Barden v. N. P. R. R. Co., 154 U. S. 288.

This court in Beals v. Cone, 27 Colo. 473 (62 Pac. Rep. 948) held that a decision of the land department like the one in question is equivalent to nothing more than a judgment as of a non-suit, and not conclusive upon the department itself or upon the parties.

An additional reason why the plea of res adjudicata cannot be sustained is that in the former proceeding the parties are not the same as those in the present action.

2. The principal question involved is much more important and difficult of solution. In discussing this feature of the case, it must be considered as established that the Searl placer was an existing valid location at the time of the attempted location of the lode claims. We make this statement as counsel for plaintiff in error themselves admit that such issue was present in the case, and was determined by the trial court upon conflicting evidence, and as bearing upon this point they make no question but that the same was rightly determined. The question, therefore, is presented whether, and if so, in what circumstances, one may, before application for a patent of a prior valid placer location is made, go upon the same for the purpose of prospecting the ground, and thereafter make a location of a lode claim based on a discovery thereafter and thus made of a vein or lode therein.

In Aurora Lode v. Bulger Hill & Nugget Gulch Placer, 23 L. D. 95, it was held by the secretary of the interior that the discovery and location of a placer mining claim establishes in the owner the right to the possession of the superficial area within its boundaries for all purposes connected with, and incident to, the use and operation of the same as a placer mining claim; but that such location does not operate to give the right of possession to known veins or lodes within its limits,'or preclude the right of discovery and location thereof by others. It was also held that a judicial award of the right of possession to an adverse placer claimant as against a lode applicant, does not preclude subsequent departmental inquiry upon the allegation of the lode claimant that the placer claim embraced known lodes or veins, where it appears that such question was not at issue before the court for determination by its judgment.

This case was referred to with approval by this court in Mt. Rosa M. M. & L. Co. v. Palmer, 26 Colo. 56. In the latter case the facts were that lode claims were known to exist, and were also duly located within the limits of a previously located placer claim before patent of the latter was applied for. A patent for the placer having been issued in such circumstances it was held that, inasmuch as the applicant did not at the time mention the lode claims, or claim them by virtue of lode locations, they were excluded from the grant of his patent. And as it further appeared that the locators of these lode claims went upon the placer ground and made locations upon veins known to exist before the application for patent was made, the conclusion was that the patentee of the placer could not recover possession of the lode claims, for they were properly located. The court said that in making them no right of the placer owner was invaded, and that their validity was not affected by the fact that they were made within the surface boundaries of a prior placer location. For the purposes of the case, it must have been assumed as true that when the entry by the locators of the lode claims was made the lodes themselves were known to exist.

If the facts of the case at bar were the same as those in the Mt. Rosa case, we would, under its doctrine, be obliged to reverse the judgment; but they are essentially different in at least one particular to which we shall hereafter refer. But before passing to that, we notice the contention of defendants in error that Calhoun G. M. Co. v. Ajax G. M. Co., 27 Colo. 1 (59 Pac. Rep. 607, 618) we have virtually held that one who has made a valid location of a placer claim has for all purposes exclusive right of possession thereto so long as he complies with the law, and that the territory embraced therein is not subject to adverse location by a claimant of the same ground under a subsequent lode location, though the lode is known to exist before application for a patent is made. Our decision in this case was not intended to qualify the doctrine established in the Mt. Rosa case. In the Calhoun case, where a lode location was involved, we were not considering, aswas true in the Mt. Rosa case, the kind or extent of possession which follows a valid location of a placer claim. What was said in the Calhoun case was true as applied to a lode claim, for the right of possession of a lode claim includes the entire surface area. In the Mt. Rosa case, however, wherein was defined the rights of a placer claimant, we said that a placer location gives a,qualified possession of the ground located—that is to say, it confers upon the owner the exclusive right of possession of the surface area for all purposes incident to the use and operation of the same asa placer mining claim, and all unknown lodes or veins, but does not give the right of possession to known veins within its limits.

It is obvious that the facts of the case do not bring it within the principles laid down in the Me. Rosa case. If, in the case at bar, the lode claims were known to exist at the time of the entry of defendant’s grantors upon the Searl placer, under the decision in the Mt. Rosa case the entry was not unlawful; but if, on the contrary, the veins were then unknown, by the same decision the right of possession of this ground belonged to the owners of the placer location. Their right of possession included these unknown veins and the entry for prospecting was a trespass, and no title could thereby be initiated.

As the evidence was not brought up in the bill of exceptions, we must assume in support of the judgment below that the proof was against the defendant upon this point. Indeed, the specific finding of the trial court that defendant’s grantors went upon plaintiffs’ prior existing placer location and discovered and located lodes therein, involves the finding that the lodes were unknown at the time of the entry; for if they were known, they were not discovered by the prospectors, but were already subject to location by them; and if then unknown, the placer owner was entitled to their exclusive possession, and entry upon them by others constituted a trespass and could not initiate title.

Our conclusion, therefore, is that one may not go upon a prior valid placer location to prospect for unknown lodes and get title to lode claims thereafter discovered and located in this manner and within the placer boundaries, unless the placer owner has abandoned his claim, waives the trespass, or by his conduct is estopped to complairj of it. If the trial court intended to rule that in no circumstances may one before application for a patent of a placer claim, go upon the ground within its exterior boundaries for the purpose of locating a lode, it went too far; yet as general language in an opinion must be taken in connection with the facts in the particular case, the ruling here should be limited to the facts disclosed by the record, and no prejudicial error was committed. For, under the authorities, a prospector may not enter upon a prior placer location for the purpose of prospecting for, or locating, unknown lodes or veins; and to uphold the judgment we must presume that the evidence before the trial court showed that the veins or lodes upon which defendant’s grantors based their locations were unknown when they entered upon the Searl placer for the purpose of prospecting.

The mere fact, then, that the judgment may have been based upon a legal proposition—too broadly stated as a universal rule—that in no case may a location of a lode claim be made within the boundaries of a prior valid placer location,—a legal conclusion which, as we have said, is only partially right,—-is not, under the facts of- this case, sufficient to work a reversal; for certainly a lode location may not thus be made except of a known lode. Though a prospector may believe that within the limits of a placer location a lode may exist and by development work be disclosed, he has not the right to enter thereupon for the purpose of exploiting the ground to confirm his belief.

The judgment is affirmed.

Affirmed.