# Opposition Brief — Mining Company v. Tunnel Company > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0596%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1905 - **Citation:** 196 U.S. 337 ## Text PEER Oe EI IME APO CL pe wl Re Maret ree P Eas MTSE I Fa ee Po ae ee LN RY SM CRI a | . + 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 —_-2— “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, PE PCI Kia st Py » 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. f b tS ARI RO —4— 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 Nye ae . “ ’ Pe INIT bis oak 2 AORTA ID AER, — 5 — 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 “oon 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 — 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 ' é é i E Fall AD LPR AAO D RARE RINT DAIRY TR BE AT EES RE # cara te ° é The decision follows those rendered by this court, and other Federal and State courts. They are all in perfect harmony with the decision com- SENET BE "RETREAT LT AMT LL TH ee hata 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 z we aE fe oy Re a ee nate Oe eae eee 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- IBN ae — SEL PIES STE SEES OTE Dg FAL VF 1 NE REPT ERIE MEY PTAs FANNY TT WF oad RT ee Ree SO LT CS RGR Oe | SG DOLL ELEN TORUS ATF UAW TIDY oy Ho RAT, RS. 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.” — LENT ELI ETA CO TA IAS BEB LIE ION Yee eer PREP cnee Towa te Sy Aa SRI IN PH RSs PHA RO PRE — = Raa 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 RTM, S. S ™ * Sasa ieee xa, . . . Fg LET TUS LE MRS IU IY ASL PTE LER IH NLT PLE IL EPID EER ES ED 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0596%3A09. Public record. Not legal advice.