Opposition Brief — Mining Company v. Tunnel Company

PEER Oe EI IME APO CL pe wl Re Maret ree P Eas MTSE I Fa ee Po ae ee

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IN THE

SUPREME CourT

OF THE

UNITED STATES

October Term, 1902.

THE CREEDE AND CRIPPLE

CREEK MINING AND

MILLING COMPANY,

Petitioner,

y

THE UINTA TUNNEL MIN-

ING AND TRANSPORTA.

TION COMPANY,

Respondent.

Brief and Argumentin Opposition to Petition for

Writ of ertiorari.

In Forsyth v. Hammond, 166 U. S., 514, the

court, reviewing the cases, says:

“While not doubting its power, has been

chary of actions in respect to certioraris.”

LIT ESB ES ole F5 Pamne 8

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“And further, that while this power is

co-extensive with all possible necessities,

and sufficient to secure to this court a

final control over the litigation in all the

courts of appeal, itis a power which will be

sparingly exercised, and only when the

circumstances of the case satisfy us that

the importance of the question involved,

the necessity of avoiding conflict between

two or more courts of appeal, or between

courts of appeal and the courts of a State,

or some matter affecting the interests of

the nation in its internal or external rela-

tions demands such relief.”

The contention is, that the Circutt Court of

Appeals in deciding this cause, announced certain

principles of law in direct conflict with the decis-

ion of this court in Calhoun G. M. Co., v. Ajax G.

M. Co., 182 U.S., 499. That this case involves the

identical questions, and facts, passed upon in that

case,

The facts in the Calhoun- Ajax case are, that

the Monarch and Mammoth Pearl lodes were

located prior to the location of the tunnel site.

That a receiver's receipt issued for the Monarch

and Mammoth Pearl, prior to the location of the

tunnel site.

In that case the court passed upon four propo-

sitions: three only have any bearing here, in fact,

one thereof, is controlling:

ist. Did the Ithica tunnel have a right of way

through the Monarch and Mammoth Pearl?

2nd. Did the tunnel acquire by virtue of its

location, the ownership to, and right of

possession of the blind veins cut therein, etc?

4th,

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Whether or not the tunnel owners should

have been permitted to introduce evidence for

the purpose of showing that there was no dis-

covery of mineral in place in the Monarch and

Mammoth Pearl claims, priorto location of

tunnel site?

In that case, all these questions were answered

in the negative, and properly, because:

Ist.

2nd,

3rd.

(a)

(b)

(Cc)

(a)

The lode claims in that cause had been

segregated from the public domain, before

the location of the tunnel.

The lode claims had been entered for patent

by the issuance of a receiver's receipt, before

the location of the tunnel.

The land office at the time of the location of

the tunnel, had passed upon every question

necessary to make the lode claims valid loca-

tions, at which time, no other rights had been

initiated.

The said department by issuing receiver's

receipt decided prior to the issuance thereof,

the claims had been properly and_ legally

located

That a discovery had been made, (but the

time at which said discovery was made, was

not decided).

That the necessary labor had been per-

formed.

That the locators or Owners were entitled

to enter claims for patent.

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4th. The Government had been paid for the land

embraced within the surface bounderies of the

lode claims by the owners thereof, and as such

owners of said claims, they were entitled to

Own, possess and enjoy the same not only as

against the United States, but against the

world. All this occurring before the location

of the tunnel site.

Under these facts and findings, the Ithica

tunnel had no more right to be located across

these claims, than it would have to be located

upon and across ground that had been patented

for years prior to its location.

In referring to the Opinion in the Crlhoun-

Ajax case, relative to collateral attack upon de-

cisions of the Land Department, Judge Sanborn,

in this case, says:

“Its decisions of questions within its jur-

isdiction, are impervious to collateral at-

tack. This was the question which the

Supreme Court answered in the Calhoun-

Ajax case, and which, if the language in

the opinion of that case is carelessly read,

wethout knowledge of. or reference to the

question before the court, it may seem to be

broader, a careful examination of the facts

which the record there discloses, demon-

Strates the proposition, that the decision

went no further.”’

In the Cathoun-Ajax case, at the time of the

entry of the Monarch and Mammoth Pearl for

patent, there were only two parties interested ijn

the claims, the locators thereof, and the United

States, as between these parties, the decision of

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the Land Department was controlling, thereafter,

no one could initiate any title through the United

States to these claims.

This cause presents an entirely different state

of facts:

ist. The Uinta tunnel was properly and legally

located on the 13th day of January, 1892.

2nd. On this date it is contended, there was no

location of the Ocean Wave and Litile Mary

claims, notwithstanding the location certifi-

cates bear date, January 2nd, 1892, and that

no discovery of mineral had been made in

said claims or either of them until long after

the location of the tunnel.

A locatien certificate is not required by the

United States Statutes, nor by the statutes of all

the States, but in those States in which it is re-

quired, it is prima facie evidence only of such facts

as are required by the statute to be stated in the

location certificate.

Lindley on Mines, Vol. 1, p. 502;

Jones on Evidence, Sec. 521;

Campbell v. Rankin, 99 U. S., 261;

Jaulzen v. Arazona Co., 20 Pac., 93;

Pollard v. Shiyeley, 5 Colo., 309.

Lindley on Mines, page 502, in treating of this

question, says:

“Where such record is authorized, it is

prima facie evidence only of such facts as

are required by law to be stated therein,

provided they are sufficiently stated. * * *

Sp PE et NAIR Sd Ho

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While many of the States require the date

of the discovery to be Stated in the rec-

orded certificate, we do not think that this

would be evidence of the Jact of discovery.

A discovery once proven, sugh a record

would, prima facte fix the date. The

question of discovery is the most impor-

tant of all the acts required in the pro-

ceedings culminating in the perfected loca-

tion. It isthe foundation of the right with-

out which all other acts are idle and super-

uous. With the exception of three States

(California, Idaho and Montana) the cer-

tificate is executed with no solemnity. It

is not either acknowledged or sworn to.

It isa mere ex Parte declaration in his own

behalf of the party most interested, * * *

The real purpose of the record is to

operate as constructive notice of the fact

of an asserted clazm and its extent. When

the locators right is challenged, he should

be compelled to establish by proof outside

of the certificate, all of the essential facts,

without the existence of which the certifi-

cate possesses no potential validity.”

We believe that the authorities are numerous,

that the location certificate is not the proper evi-

dence by which to prove the fact of discovery; but

at the most, the only claim that is made for it is

that such location certificate is prima facie proof

of the fact.

It is sought by the petitioner to make a loca-

tion certificate conclusive proof of the fact of

discovery and of the date of the same. If there

be force in the rule that such certificate is prima

facte proof, then, by the very meaning of the

words “prima facie,” the respondent was entitled to

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introduce evidence to rebut it, and all evidence

upon this point was excluded, over the objection

and exception of respondent by the trial court.

While some degree of sacredness has clung around

the patents of the United States, limited however,

by the well considered decisions, in which it has

been stated that wherever the United States has

issued a patent without jurisdiction, the patent is

of no more validity than any other instrument

which confers no rights. We know of no sacred-

ness whick clings round a _ location certificate

made, as had been suggested by a learned author

on mining laws, without any solemnity, an ex parte

proceeding, made by a party who is the most inter-

ested one in the entire course of the location. It

would be an absurdity if litigation, in which prop-

erty of great value is involved, should be deter-

mined by the ex parte acts of the man who is most

interested himself; and that, too, at’ time when

there was no controversy and no reas « to contro-

vert in any manner the facts as set out in the loca-

tion certificate.

The patent is conclusive only of those facts

which are necessary in order to procure its issu-

ance. It is not conclusive of any fact which the

Land Department is not called upon to pass on.

Without a discovery, it would be an impossibility

for the Land Department to issue a patent. But

the “éme of discovery is not made an essential ele-

ment in the issuance of it, and cannot therefore be

precluded by the issuance. The time of location

and the time of discovery is not essential to the

issuance of the patent, and is not concluded

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thereby. As to discoveries made subsequent to a

location, while they validate the claim and relate

back to the location, they expressly do so provided

no adverse rights intervene. '

Morrison’s Mining Rights (10 ed., p. 29 and

cases cited ).

Lindley on Mines, Vol. 1, p. 454 and note.

In other words, a patent does not live or die

with a location, which is set out in the original

application as being the date of discovery. But if

discovery is made in the claim at any time before

the application for the patent is passed upon, and

such discovery is proven, a patent may issue there-

for, provided the rights of intervening locators are

taken care of. Soin this case it is not necessary

that this patent relate back to the original date of

location, as set out in the certificate of location, in

order to give effect to the patent. A patent may

live and continue to have force with a date set for

the actual discovery of the claim very different

from that which is contained in the certificate of

location. The question is, after all, one of juris-

diction. A judgment can never in effect exceed

the jurisdiction of the court. If by law the Land

Department, which is given the power to issue

such patents, has no right or power to determine

the time of location, and if, as in the case of the

St. Louis Smelting Company v. Kemp, 104 U.S.

636, the law is as follows:

‘Nor is the doctrine of the conclusive-

ness of the patent inconsistent with the

right of the party resisting it to show, if

an entry is not stated in the instrument,

SIREN EBS athe os Oe at a

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that no entry of the land is made as an

initiatory proceeding.”

Then we cannot escape the conclusion that it

is not in contravention of any doctrine of conclus-

iveness regarding a patent, were a party resisting

it to show the date of discovery, and to hold other-

wise would be to violate the decision of the

Supreme Court.

The doctrine of relation is an equitable one,

and will only be applied by a court of equity in

furtherance of justice to all parties. If our conten-

tion is correct, that we are entitled to invoke the

law of estoppel against one who knowingly sat by

and saw the petitioner expend upwards of one

hundred and twenty-five thousand dollats in the

improvement of its property, and under the claim

of right to go through the property belonging to

petitioner, and made no objection, but acquiesced

therein, this is certainly an equity in itself, which

may be invoked in favor of the relator.

This court, in the case of Evans v. Durango

Land and Coal Company, 25 C. C. A., 532, referring

to this equitable doctrine of relation, said:

“It may be conceded that a patent for

public land, has, on several occasions, been

held to take effect as of date of the initial

step taken by the patentee, under the laws

of the United States, to obtain a title to

the land. od a . Nevertheless,

there appears to be no hard and fast rule

giving a patent effect by relation as of a

date anterior to the time when an entry

is fully consummated by the payment of

the purchase money, or by the doing of

some other equivalent act, such as the sur-

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render of a land warrant, or the s¢'ection

of land to supply and ascertain deficiency

in a land grant. - *

The doctrine of relation i is a, legal fiction,

which was invented and is applied solely

for the protection of persons who, without

fault of their own, would otherwise sus

tain an injury. Being of equitable origin,

and designated to prevent fraud and injus-

tice, it is a doctrine which is never ap-

plied when it would have a contrary effect.”

3rd. The work was continuous upon the tunnel at

alltimes. The Ocean Wave and Little Mary

were entered for patent August 5th, 1893; pat-

ent issued, December 21st, 1893. At the time

of application for patent, and the entry thereof

for the Ocean Wave and Little Mary claims,

there was no duty upon respondents to file an

adverse.

Enterprise Mining Co. v. Rico-Aspen Min-

ing Co., 167 U.S., 104.

Justice Brewer, in rendering the opinion in

that case, says:

“The obvious contemplation of the law

in respect to these adverse proceedings is,

that there shall be a present f/angzble and

certain right, and not a mere possibility.

Of course the owners of the Vestal claim

had notice from the fact of the location of

the tunnel line, of the possibilities which

future excavations of the tunnel might de-

velope, and so they were not prejudiced by

the failure to adverse. And as the de-

fendant could not in any suit which it

might institute establish a certain adverse

right, and as litigation in the courts is

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based upon facis, and not upon posszbilities,

it seems to us, nothing was to be gained

by instituting adverse proceedings and *

therefore, nothing was lost by a fallure so é

to do.”

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If, as Justice Brewer says, nothing was lost by :

failure to institute adverse proceedings, why, we

ask, would not respondent be entitled to make the

same proof after issuance of patent when the ques-

tion should arise between the lode claimant, and

the owners of the tunnel site, as to whether there

was a location of and discovery on the lode claims,

the same as could have been offered if the Land

Pee ee

pat i i pea ai

Department had not passed upon the questions ;

that petitioner contends estops and precludes re-

spondent from making such proof? 5

If this controversy had arisen prior to August

5th, 1893, and before these claims were entered for 3

patent, petitioner would not for a moment contend :

that proof of no location or discovery would not t

be competent. It would be conceded in such ;

case, that if the proof established no location or }

discovery, that the tunnel site must prevail.

At the trial of the case, petitioner was not con-

tent to rest its case upon the introduction of the ’

patent itself, but as proof of a date to which the ‘

patent should relate back, there was introduced ;

the original location certificates of the two claims, q

and the amended location certificates (printed E

Rec. 80, fol. 133) and this over the objection of :

relator, that the location certificate itself was not

proof of a discovery. Did petitioner load both :

the pleadings and proof at the trial of this cause,

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with surplusage, or was there a necessity for both

the pleadings and proof in this respect? If it was

necessary for petitioner to allege, as a separate

matter, the date of the discovery, and to prove

the same, it was certainly competent for respond-

ent to deny such discovery, and by such proof,

as it had at hand, to meet any evidence in respect

to the time of location.

There is scarcely any doubt, but what the

rights of a patentee, to property obtained from the

government, relate back beyond the date of the

patent to some prior time. What this time is has

been disputed.

Lindley on Mines, Vol. 2. 975, states the rule as

follows:

“It is accepted as a well established rule

of law, that the title conveyed by a mining

patent relates back to the inauguration of

the right; that is, to the location upon

which the patent proceedings are based.”

Citing as authority therefor:

Haydenfelt v. Daney G. & S. M. Co., 93

U. S., 634;

eee Smelting Co. v. Kemp, 104 U.S.,

39;

Deffenbach v. Awake, 115 U. S., 392, 405;

Silver Bow M. & M. Co. v. Clarke, 5

Mont., 378;

Talbot v. King, 6 Mont., 76;

Deno v. Griffin, 20 Nev., 249;

Eureka Case, 4 Saw., 302;

Kahn v. Old Tel. Co., 2 Utah, 174.

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Barringer and Adams on the Law of Mines

and Mining in the United States, at page 417, state

their conclusions as follows:

“The patent being simply the evidence

of the grant, when it had been issued, takes

effect by relation as of the first initial step

in the acquisition of the title, that is, the

original location, at least so far as to cut

off intervening rights, unless they be such

that the patentee has lost the right to

question them by reason of his failure to

file adverse claims, as required by Rev.

Stat., 2325. Where such rights exist, the

relation is to the date of the issuance of

the certificate of entry. The date of loca-

tion may be stated in the instrument, or

may appear in the record of the entry in

the Department, and may be thus estab-

lished, or it may be otherwise proven.”

Whether, then, the patent, when issued relates

back simply to the date of entry, or to the very

origin of the rights of the claimant of the property,

is immaterial here to us.

In the case of 7he Calhoun Gold Mining Com-

. pany v. The Ajax Gold Mining Company, supra,

which was a case appealed from the Supreme

Court of the State of Colorado, and which reversed

a long line of decisions in reference to cross lodes,

there is an opinion covering some five pages deal-

ing with rights of the most vital- nature, over-

turning law, which has been established for many

years; and after determining in favor of the :

defendant in error in that case upon its contention :

in reference to cross lodes, there is contained, at :

the end of the decision, the following paragraph: Hs

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“An assignment of error is based upon

an offer of plaintiff in error to prove that

at the time of the location of the Ithica

tunnel site, no ore had beeg discovered in

two of the patented claims of the defend-

ant in error, to wit: the Monarch and the

Mammoth Pearl. The ruling was right.

The patents were proof of discovery and

related back to the date of the location of

the claims. The patents could not be

collaterally attacked. This has been

decided so often, that a citation of cases is

unnecessary.”

This is the paragraph upon which, in the end,

the petitioner contends conflicts with the decision

rendered herein.

Patents are a proof of discovery. Patents do

relate back to date of location. Patents cannot be

collaterally attacked. On these propositions as

contained in that paragraph, there can be no dis-

pute. The law upon them has been well settled.

But does that paragraph say that the patent is

proof of the time of a discovery? Does that para-

graph mean that the patents relate back to the

date of the location, as shown by the location certif-

cate, and that no other proof can be introduced to

prove that fact? Does that paragraph mean,

when it says that patents cannot be collaterally

attacked, that the date of the location, when not

shown by the patent itself, cannot be shown by any

other evidence outside of the patent? Unless

these questions are answered in favor of petitioner,

the writ cannot issue.

Not only would it puta strained meaning upon

the words used in that decision, to give them such

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far reaching effect, but it would override not only

a prior decision of the Supreme Court of the

United States itself, to wit: the case of the Enter-

prise Mining Company v. Rico-Aspen Mining

Company, supra, but it would with scarcely a line,

with no authority, and without a reason presented,

wipe out a line of well-reasoned and high-standing

authorities to the contrary, where the question

was a pivotal one, where arguments were heard

and the question was determined in the full light

of its being an important one. In addition to all

that, it would be directly contrary to a learned

opinion which was rendered by a court, one of

whose members is the very justice who writes the

opinion in the Calhoun case, supra. The case to

which we refer is the case of The Last Chance

Mining Company v. The Tyler Mining Company,

61 Fed. R., 557. This case, upon appeal to the

Supreme Court. was reversed, but solely upon the :

question of the admissibility of certain evidence,

and as to its effect as ves adjudtcata. No criticism

is by the Supreme Court passed upon either the

decision or the reasoning of the Circuit Court of

Appeals in that case, upon this question of the re-

lation of a patent back to its date of discovery. It P

was a case in which extra-lateral rights were to be

determined by priority of location, and, in the

course of its opinion, the court says:

“Was the patent of the Last Chance

TO PERE PS ede ain SRE es

conclusive as to the date of the location of e

the Last Chance claim? 1 . *

The Last Chance thereupon, without ob- $

jection, introduced witnesses who gave i

testimony tending to show the date of

Sy PEEL OBL BLL LEE LILIV EINE EON EIHES LEIOE PE ILLES EEE NG OEE

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discovery and the location, of the Last

Chance claim, the staking of the claim,

posting notice of location, recording of

notice, doing assessment werk, survey for

patent, etc. The Tyler introduced testi-

mony in rebuttal upon these points, against

the objections of the Last Chance. The

testimony of the Last Chance tended to

show that a valid location of the Last

Chance Clance claim was made on the

17th day of September, 1885, three days

prior to the location of the Tyler. The

testimony in rebuttal tended to show that

no location of the Last Chance was made

until after the Tyler was regularly located.

The patent issued to the Last Chance was,

of itself, evidence that the Last Chance

lode had been discovered; that the loca-

tion had been properly made; that it had

been marked so that its boundaries could

be readily traced; that the statutory re-

quirements in respect to the posting of

notice and having it recorded had been

complied with; that the necessary amount

of work had been done; that the applica-

tion for a patent, the notices given by the

applicant, and all the other steps to ac-

quire a patent, as required by law, had

been regularly taken. Counsel for the

Tyler admit that the patent itself is evi-

dence of all these facts, and from its date

upon its face, it is conclusive in a court of

law ofall these facts, because without therm

it could not lawfully issue. The patent

is the final judgment and decree of the

Land Department that the holder is the

owner of the land it embraces, according

to its terms, and in a court of law, it is

ironclad as title. ’ . ait

“The controversy between the parties

was as to the date when the location of the

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Last Chance was made. Was it prior or

subsequent in time to the location of the

Tyler claim? The patent, does not of it-

self, fix the date when the location was

made. It issilent upon that subject. The

respective claims join each other on the E

surface. There is no conflict between 3

them as to the surface ground. Both 4

claims are valid, and both have the gov- z

ernment title—one by patent; the other i

by a receipt and certificate of entry from

the United States Land Office, which, as

before stated, is the substantial equivalent 3

of a patent.” &

“Did the court err in allowing testimony

as to the date of the Last Chance location?

To what does the title obtained by the

patent relate? How is this question to be

determined? Is it true that the patent is

conclusive of the fact that at the time the

application therefor was made, the appli-

cant had a valid location, and had, in all

respects, fully complied with the require-

ments of the mining laws; but it does not

fix the time when the location was made.

In order te determine this question, it is

necessary to introduce evidence independ-

ant of the patent. And, in such cases, as

is said in Shepley v. Cowan, g1 U. S., 338,

the first thing in time in the commence-

ment of proceedings for the acquisition of

the title, when the same are regularly fol-

lowed up, is deemed to be first in right.

The law provides when and how adverse i

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claims to an application for a patent may £

be made; but such controversies are usu- ¥

ally confined to conflicting claims as to the

surface ground. When there is no conflict :

on the surface, there is ordinarily no nec- é

essity for a protest being made. Where F

the law does not require a protest to be :

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made, and an adverse suit to be brought

to determine the right to possession, be-

fore the patent issues, and a patent is reg-

ularly issued and thereaftet a controversy

arises as to the time when the patent takes

effect, and it is claimed that it relates back

to the date of the location of the claim,

that date if material to the issue raised

must be established by evidence in the

same manner as any other question of fact

not settled by the patent itself.’

“The right to a patent once vested is

equivalent, so far as the United States

Government is concerned, to a patent is-

sued. When issued, the patent relates

back to the inception of the right of the

patentee. Stark v. Starr, 6 Wall, 403.

But where it is sought to make a patent

relate back of the date when the applica-

tion for the patent was made, and atf-

tach itself to some prior right, the facts

showing such prior right must be established

by proof.”

“It necessarily follows from this reason-

ing, that it devolved upon the Last Chance

to show the time when a valid location of

the Last Chance was made, in order to

connect its title by patent with the date

when the location of its claim was made.”

It was decided in this case:

“The question whether the discovery of

minerals in place, were made in the lode

claims before or after the location of the

claims to the tunnel site was perfected, is

open to determination by means of the

testimony of witnesses and other compe-

tent evidence de hors the patent in any liti-

gation between the parties involving their

conflicting claims.”

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“The averments that no discovery of

mineral in place within the lode claims had

been made, before the location of the

claim to the tunnel site, should not have

been stricken from the answer of the de-

fendant, and its evidence to sustain them,

should have been received.”

All through the brief and argument of the

petitioner, for writ of certzorar?, it is contended

and adhered to with a “reasoning that is danger-

ously absurd,” that the facts in the Calhoun-Ajax

case, and the one at bar, are identical. Conse-

quently, the law as announced in that case, should

have control in this. In view of the many decis-

ions of this court which must necessarily be over-

ruled if the contention of petitioner is sustained,

we can not refrain from setting forth in full, the

clear, logical, forceable and able construction

placed upon the Acts of Congress in reference to

tunnel and lode claims rendered by Justice San-

born in this case.

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The decision follows those rendered by this

court, and other Federal and State courts. They

are all in perfect harmony with the decision com-

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plained of. :

The logical conclusion to be deducted from é

reading Justice Sanborn’s opinion, compels the ee

judicial mind to stamp it with approval. |

The decision above referred to can be found a

in the 119 Fed. Rep., at pages 164-170, and is as

follows: é

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Statement.

“The writ of error in this case challenges the

trial of an issue involving the rights of the respec-

tive parties to the action to the possession of

the space within the bore of a tunnel where it

passes through two lode mining claims beneath the

surface of theearth. The Creede and Cripple Creek

Mining and Milling Company was the plaintiff and

The Uinta Tunnel Mining and Transportation

Company was the defendant in the action below,

and they will be so styled in this statement and in

the opinion which follows. The plaintiff was

the owner of two lode mining claims called the

Ocean Wave and the Little Mary, which were

entered for patent on August 5, 1892, and were

patented on December 21, 1893. The plaintiff

alleged in its complaint that these claims were

duly located and discovered on January 2, 1892.

The defendant was the owner of a claim to a

tunnel site which extended through these lode

claims beneath the surface of the earth and which

was located on January 13, 1892. It also owned

certain lode claims which had been located on

blind veins that had been discovered in the tunnel

after the lode claims of the plaintiff had been

patented. The mining claims of the plaintiff were

between the portal of the tunnel and the defendant's

lode claims and the latter had driven its tunnel

through the piaintiff’s claim and was using it as a

way to bring to the surface of the earth the ore it

was extracting from its blind veins. The real

issue was whether or not the defendant had the

right of way along the bore of its tunnel through

oa r ° TARO aD RIE OTE

ERG LN IRE LITE EE PE ERE Ne iin ei

the lode claims of the plaintiff, and the determina-

tion of this issue depended upon the priority of

their respective claims. The plaintiff asserted that

its claims were discovered and located on January

2, 1892. The defendant averred that its tunnel

was located on January 13, 1892, and that no dis-

covery of mineral in rock in place was made within

the lode claims of the plaintiff until after its tunnel

site was located. These averments of the defen-

dant were stricken from the answer and the evi-

dence which it offered to sustain them was rejected.

Exceptions were taken to these rulings and there

was a verdict and judgment for the plaintiff.”

SANBORN, Circuit Judge, after stating the case

as above, delivered the opinion of the court.

When the claim to a tunnel site has been

located before the entry of the conflicting lode

mining claims which have subsequently passed to

patents, is the question, whether discoveries of

mineral in rock in place were made within the lode

claims before the location of the claim to the

tunnel site, open to determination by means of

evidence or testimony de hors the patents? This is

the principal question presented by this record. If

the query were whether or not it is competent to

show by proof outside the receiver's receipts or

the patents that there had been no location of the

patented claims or no discovery of the lodes

therein before they were entered for patent, there

would be no doubt that a negative answer must be

returned to the question, for the reason that this is

an issue between the parties to a proceeding be-

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fore the Land Department, which that tribunal

necessarily considers when it permits the entries

of the lands, and its decisions of questions within

its jurisdiction are impervious to collateral attack.

King v. McAndrews, 111 Fed., 860, 863, 50C. C. A.

29, 32. This was the question which the Supreme

Court answered in Calhoun Gold Mining Co. v.

Ajax Gold Mining Co., 182 U. S., 499. 502, 503, 510,

and while, if the language of the opinion in that

case is carelessly read without knowledge of or

reference to the question actually before the court,

it may seem to be broader; a careful examination

of the facts which the record there discloses

demonstrates the proposition that the decision

went nofurther. In that case the receiver's re-

ceipts on the lode claims of the appellee had been

issued before the claim to the tunnel site was

located. (Page 502.) In a proceeding between

the lode claimants and the United States, the Land

Department had decided that mineral in place had

been discovered within the claims and had _per-

mitted their entry. Subsequent to this decision

and to these entries the owner of the claim to the

tunnel site located it across the lode claims and

upon the trial offered to prove that there had

been no discovery of mineral in place within those

claims before they were entered. The trial court

rejected the offer. The Supreme Court said:

“The ruling was right. The patents

were proof of the discovery and related

back to the date of the locations of the

claims. The patents could not be collat-

erally attacked.”

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Thus, it may be seen that the only proposition

there decided was that one who had initiated no

claim upon lands when they were entered by other

claimants could not subsequently collaterally at-

tack the decision of the Land Department that

there had been a discovery of mineral in place

upon the claims at some time before they were

entered.

Counsel for the plaintiff rely upon the decision

and opinion in this case and insist that it fairly sus-

tains the rulings of the court below. But there are

radical and controlling differences between the

question presented in that case and the issue of :

law before us in the case in hand

1. A judgment is binding upon the parties to

the proceeding in which it is rendered and upon

their privies. The parties to the judgments of the

Land Department by which it allowed the entries

of the lode claims in the case of the gold mining

company were the United States and the owners :

of those claims. No other parties had or claimed

any interest in the land at the time those entries

were made. The judgments and the patents ac- :

cordingly bound and estopped these parties and f

their subsequent assignees. They estopped all t

parties who initiated claims upon or interests in the :

lands under either of the parties to the proceeding f

subsequent to the judgments of the Land Depart- >

ment. The claimant of the tunnel site in that case :

initiated his claim under the United States, one of .

the parties to that proceeding, subsequent to the ;

judgments. It was therefore a privy of the United i

States and was estopped by the judgments of the f

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Land Department from proving that no discoveries

had been made upon the lode claims before these

judgments were rendered. This is not the case in

the action before us. The claim to the tunnel site

was located on January 13, 1892. The judgments

of the Land Department allowing the entries were

rendered on August 5, 1892. At that time there

were three parties interested in the land, the lode

claimants, the United States, and the claimant of

the tunnel site. Two of these parties, the lode

claimants and the United States. were parties to

the proceedings and were estopped by the judg-

ments and the patents. One of them was not a

party to any of these proceedings, to the judg-

ments or to the patents, and, upon familiar princi-

ples; was neither bound by them nor estopped by

them from presenting and proving according to the

established rules of evidence in trials under the

common law the fact that no discoveries had been

made on the lode claims before the location of its

tunnel site, the fact essential to the validity of its

claim upon, and interest in, the land.

Not only was the claimant of the tunnel site

not a party to the proceedings in the Land Depart-

ment which resulted in the entries and patents to

the lode claims, but it was neither required to be-

come such a party nor to submit its claims and inter-

ests in the lands to the adjudication of that depart-

ment at that time because its rights therein were

then too uncertain, contingent and intangible for

determination. When the applications for the

patents of the lode claims were filed, the blind

veins which have induced the use of the tunnel

through the lands in controversy had not been

discovered, the tunnel had not been driven into

the land, and it was impossible to know whether

or not the claimant of the tunnel site would ever

acquire any right to use this land for the purpose

to which it is now devoted. The claimant of a

tunnel site is not required by sections 2325 and

2326, Revised Statutes, to file an adverse claim and

submit his rights in the lode claims crossed to

adjudication by the Land Department upon the

filing of applications for patents to those claims

when his rights are at that time uncertain, con-

tingent and intangible. Enterprise Min. Co. v.

Rico-Aspen Min. Co., 167 U. S., 108, 112; Enter-

prise Min. Co. v. Rico-Aspen Consolidated Min.

Co., 13 C. C. A. 390, 399, 400; 66 Fed., 200,

209, 210.

2. The issue whether the discoveries in the

lode claims were made before the location of the

tunnel site in the Ajax Gold Mining Company’s

case was necessarily considered and adjudged by

the Land Department when it permitted the

entries of the lode claims. The finding that such

discoveries had been made before the date of the

entries was indispensible to the decision that the

lode claimants were entitled to make the entries so

that that finding must have been made by the

Department. But the location of the tunnel site in

that case was subsequent to these entries. Hence

the finding that the discoveries were made before

the entries was necessarily a finding that they

were made before the location of the tunnel site,

and it was, as we have seen, binding upon the

—

— 26—

claimant of the tunnel site, because it was claiming

a right initiated after this adjudication under a

party to the judgments.

It is not soin the case before us. The question

here is whether or not discoveries were made ia

the lode claims prior to January 13, 1902, the date

of the location of the claim to the tunnel site.

The determination of this question was neither in-

dispensible nor material to the adjudication made

by the Land Department on August 5, 1892, that the

lode claimants were entitled to enter the land, and

there is nothing to show that this issue was ever

considered or decided by that department in reach-

ing its conclusion. The only question relative to

the discoveries that it was required to determine

was whether or not they had been made prior to

August 5, 1892, when the entries were permitted,

and the decision of that question left entirely un-

touched the issue in this case whether they were

made before or after the location of the tunnel site

on January 13, 1892.

3. When the entries were made in the Ajax

Gold Mining Company’s case no claim to a tunnel

site had been located or staked upon or across the

lode claims, and the entries of them and _ the

patents to them vested the title in the claimants

free from any right or claim to a tunnel site.

It is otherwise in the case at bar. Theclaim to

the tunnel site was located and staked out across

these lode claims before they were entered.

Under the Revised Statutes and the law the entries

and patents of these claims vested the title to them

subject to the rights of the prior claimant of the

tunnel site just as they vested it subject to the

right of an owner of an adjoining lode claim to

follow on its dip through a side line and through

the patented territory of these lode claimants any

vein which has its apex in his claim. Enterprise

Min. Co., v. Rice-Aspen Consol. Min. Co., 13 C.

C. A., 390, 400; 66 Fed., 200, 210; Mining Co. v.

Campbell, 135 U. S., 286, 301; Hall v. Mining Co.,

Morr. Min. Rep. (3rd ed.), p. 282; Branagan v.

Dulaney, 8 Colo., 408, 412; Lee v. Stahl, 9 Colo.,

208, 210; Morgenson v. Milling Co., 11 Colo., 176,

179.

While, therefore. it is a flagrant attack upon a

patent to attempt to maintain a claim initiated sub-

sequent to the entry on which it rests, it is no such

attack to assert the rights of the claimant of a

tunnel site located before the entry of the land

against a patent of it toa lode claimant, because

under the statutes and the law such a patent always

issues subject to those rights.

Notwithstanding all these considerations, coun-

sel for the plaintiff insists that the defendant is

estopped from pleading and proving that no dis-

coveries of mineral in place were made in the lode

claims before the location of the tunnel site on

January 13, 1892, because certificates of location of

the lode claims were filed on January 2, 1892, which

declare that such discoveries were made on that

day, and it is a well-settled principle that pat-

ents relate back to, and take effect upon, the dates

of the initiation of the rights on which they are

founded.

— 9 a RINNE NE eC ERR RES

— yon

But the certificates of location are not con-

clusive proof of the facts which they recite against

those asserting rights adverse to their makers.

They are competent evidence of the fact that they

were made and filed, and hence of an important

link in the chain of the plaintiff's title. But when

the existence of the facts which they recite is chal-

lenged they are but the ex parte statements of in-

terested parties, and there is nothing in them or in

their relation to the property or the parties to bind

those claiming the lands adversely to their makers

or to estop them from establishing the truth by the

customary oral and written evidence.

Nor is there anything in the doctrine of rela-

tion to work such an estoppel. Grant that the

patents relate back and take effect as of the date

of the initiation of the lode claims, yet since the

patents are subject to the rights of the claimant of

the tunnel site when they are issued they are still

subject to those rights when they have related back

to the inception of the claims upon which they

rest.

Moreover, the averment of the defendant is

that no discoveries were made in the lode claims

until after the location of its claim to the tunnel

site. If this allegation is true, it may be doubted

whether the lode claims can be said to have been

initiated before the claim for the tunnel site was lo-

cated. “No location of a mining claim shall be

made until the discovery of the vein or lode with-

in the limits of the claim located.” Rev. Stat.,

Sec. 2320; Enterprise Min. Co. v. Rico-Aspen Min.

Co., 167 U.S., 108, 112. It is true that subsequent

discoveries may validate earlier locations and that

the latter may then inure to the benefit: of the

locators as against the United States and all

parties whose claims were initiated subsequent to

the discoveries. But they would inure to their

benefit as of the dates of the discoveries and not

as of the dates of the locations and they would

neither destroy nor affect intervening rights. The

marking of boundaries and filing of location certi-

ficates may precede discovery or discovery may

precede them, but no location is valid until both

are complete. The earlier act then inures to the

benefit of the locator as of the date of the latter,

subject to all rights which have intervened be-

tween them. Erwin v. Pergo, 35 C. C. A., 482,

485; 93 Fed., 608, 611; Jupiter Min. Co. v. Bodie

Consol. Min. Co., 11 Fed., 666, 676; 4 Morr. Min.

Rep., 411, 423; North Noonday Min. Co. v. Orient

Min. Co., 1 Fed., 522, 531; Zollars v. Evans, 5 Fed.,

172, 175; Strepy v. Stark, 5 Pac., 111, 114; Thomp-

son v. Spray, 72 Cal., 528, 533; Erhardt v. Boaro,

113 U.S., 527, 536. There was, therefore, no valid

location of the lode claims until the discoveries

within them were made and it is held by the Cir-

cuit Court of Appeals of the Ninth Circuit in Last

Chance Mining Co. v. Tyler Min. Co., 61 Fed.,

557, 565; 9 C. C. A., 613, 621, that a patent fora

mining claim only relates back to the time when a

valid location was first made. If this is a correct

view of the law, the patents in this case could not

relate back to.a time anterior to the dates of the

discoveries, and if those were subsequent to the

-_— =

location of the tunnel site they could not affect de-

fendant’s rights. :

If litigation for the possession of the property

in controversy in this action had arisen between

the lode claimants and the claimant of the tunnel

site at a time prior to the entries of the lode claims,

the question whether or not discoveries of mineral

in place had been made in the lode claims before

the location of the tunnel site would have been

decisive of the issue, and the testimony of witnesses

who knew the facts and other evidence competent

in the customary trials of such issues at law would

have been admissible to determine the question.

What is there in the entries and the patents to de-

prive the defendant of its rights to try this issue

now upon like evidence? Its claim to this land

had attached before those entries were made. It

was not a party to the proceedings in the Land

Department which resulted in the adjudication

that the lode claimants were entitled to enter it.

It was not required to file an adverse claim and to

submit its rights to the adjudication of that de-

partment when the applications for the patents

were made. The adjudication of the Land De-

partment which permitted the entries was ves znler

alios acta and ineffectual to estop the defendant.

The Department was not required to determine,

and it did not decide the question here at issue,

and under the statutes and the decisions of the

Federal courts the entries and the patents were

made subject to the rights of the claimant of the

tunnel site which had attacked before the Land

Department permitted the entries. Our answer to

— wnt

the question which this case presents is, that when

the claim to a tunnel site has been located

before the entry of-+ conflicting lode claims,

which have subsequently passed to patents, the

question whether discoveries of mineral in place

were made in the lode claims before or after the

location of the claim to the tunnel site was per-

fected is open to determination by means of the

testimony of witnesses and other competent evi-

dence de hors the patents in any litigation between

the parties involving their conflicting claims,

Last Chance Min. Co. v. Tyler Min. Co., 61 Fed.,

557, 365-7;9 C. C. A., 613, 621-623; Champion Min.

Co. v. Cunsolidated Wyoming Gold Min. Co., 75

Cal., 78; Iron Silver Min. Co. v. Campbell, 135

U. S., 286; Davis’ Adm’r v. Weibold, 139 U.S., 507.

The averments that no discoveries of minerals

in place within the lode claims had been made

before the location of the claim to the tunnel site

should not have been stricken from the answer of

the defendant, and its evidence to sustain them

should have been received. The question which

has been considered is decisive of the issue

whether or not the judgment below should be

affirmed, and, as the other questions presented by

the assignment of errors may not arise again, they

will not now be considered. The judgment below

must be reversed and the case remanded to the

court below with directions to grant a new trial,

and it is so ordered.

CHARLES J. HUGHES, Jr.,

Attorney for Respondent.