After hearing, counsel the court of its own motion dismisses a
case for want of jurisdiction. Plaintiff in error moves to
reinstate it, supporting the motion by affidavits as to the value
of the property in dispute. The Court orders service on the other
party, and on return vacates the judgment of dismissal.
In an action of ejectment, the description of the land claimed
was as follows
"Commencing near the base of said mountain east of Bear Creek
and running southeast and parallel with Coley Tunnel through said
mountain five thousand feet from the mouth or starting point of
said tunnel at a stake marked and in or at the mouth of said Silver
Gate Tunnel and two hundred and fifty feet northeast and two
hundred and fifty feet southwest from said stake or tunnel to its
termination."
Held that it was a sufficient description.
In ejectment for the possession of a mine in Colorado, the
complaint, after describing the land and a tunnel claim therein,
averred that "The said tunnel claim so located embraces many
valuable lodes or veins which have been discovered, worked, and
mined by the plaintiff and its grantors."
Page 127 U. S. 472
Held that this was a sufficient description of the
lodes for which recovery was asked.
A complaint in ejectment in Colorado for a mine which alleges a
valid and legal location by those under whom the plaintiff claims,
and possession and occupation by the plaintiff for more than five
consecutive years prior to the ouster, and payment of taxes by him
during that time, sets up a sufficient claim to title as against
everybody except the United States.
Mineral locations on public lands made prior to the passage of
any mineral law by Congress are governed by local rules and customs
then in force, but their effect cannot be determined on the
demurrer in this action.
The case as stated by the Court was as follows
This was a writ of error to the Circuit Court of the United
States for the District of Colorado to review a judgment of that
court sustaining a demurrer to the "second amended complaint" filed
by the Glacier Mountain Silver Mining Company, plaintiff in error,
against J. frank Willis, Charles Buckland, and Donald M.
Frothingham, defendants in error, which complaint is in the words
and figures following, to-wit:
"For second amended complaint, the plaintiff complains and
alleges that it is a corporation organized and existing under the
laws of the State of Ohio and is a citizen of the State of Ohio;
that the defendants are and each of them is a citizen of the State
of Colorado, and that the property in controversy exceeds the value
of $500."
"Plaintiff further alleges that on the 21st day of June, 1865,
one Joseph Coley and one George C. Reeves, each being a citizen of
the United States, went upon the public domain of the United States
theretofore wholly unoccupied and unclaimed and located on said day
a tunnel and tunnel site at the base of Glacier Mountain, in Snake
River mining district, County of Summit, Colorado."
That afterwards and on the same day, they marked the boundaries
of their said location and commenced to run a tunnel into said
Glacier Mountain, and, after fully complying with the laws of the
United States, the laws of the Colorado, and the local rules and
regulations of the said Snake River mining district, they caused to
be made out and recorded in the recorder's office of the County of
Summit aforesaid
Page 127 U. S. 473
a location certificate of said tunnel claim, which said
certificate described the location and boundaries of said tunnel
claim.
"That from the day of said location until the ouster hereinafter
set forth, the said locators of said tunnel claim and their
grantees remained continuously in possession of said tunnel claim,
working and mining thereon, and have expended thereon more than the
sum of $5,000."
"That the plaintiff is the owner of the said tunnel claim, above
described, by location and purchase, and is now entitled to the
quiet and peaceable and exclusive possession thereof, by virtue of
a full compliance on its part and on the part of its grantors with
the laws, rules, and customs above set forth; that the plaintiff
and its grantors have been in the peaceable and undisputed
possession of said tunnel claim by virtue of such location,
occupation, preemption, and record for more than five years prior
to the ouster hereinafter complained of."
"That plaintiff and its grantors, for more than five consecutive
years prior to the acts of the defendants hereinafter mentioned,
paid all taxes legally or otherwise assessed upon said tunnel
claim, and have worked and mined the same from said 21st day of
June, 1865, up to the time of the acts of the defendants
hereinafter set forth."
"That the said tunnel claim, so located, embraces many valuable
lodes or veins which have been discovered, worked, and mined by the
plaintiff and its grantors."
"That the said tunnel claim was by its locators named the
'Silver Gate Tunnel Claim,' and is described more fully as follows:
commencing at the base of said Glacier Mountain east of Bear Creek,
and running southeast and parallel with Coley tunnel, through said
mountain, five thousand feet from the mouth or starting point of
said tunnel at a stake marked, and in or at the mouth of said
Silver Gate Tunnel, and two hundred and fifty feet northeast, and
two hundred and fifty feet southwest, from said stake or tunnel, to
its termination."
"Said tunnel site is situate on Glacier Mountain, in Snake River
mining district, County of Summit, and State of Colorado, and is
five thousand feet in length by five hundred feet in width. "
Page 127 U. S. 474
"Plaintiff further alleges that while it was in the quiet and
peaceful possession of said tunnel claim and every part thereof,
the defendants, wrongfully and without right and without consent of
the plaintiff, to-wit, on or about the 2d day of July, 1883,
entered upon the premises, and into said tunnel, so run by
plaintiff and its grantors on said claim, and wrongfully and
unlawfully ousted the plaintiff therefrom, claiming the said tunnel
as the War Eagle."
"That on or about said last-mentioned date, the defendants,
without right, made a pretended location of a lode claim across
said tunnel and within said tunnel claim, and therein wrongfully
ousted the plaintiff therefrom, claiming that they had discovered a
lode which they called the Tempest Lode."
"That the defendants have ever since hitherto unlawfully and
wrongfully withheld the possession of the said premises and tunnel
claim from the plaintiff, to its damage in the sum of $1,000."
"Wherefore plaintiff demands judgment against the defendants
--"
"(1) For the recovery of the possession of said Silver Gate
Tunnel, tunnel site, and claim."
"(2) For the sum of $1,000 damages for the wrongful withholding
thereof."
"(3) For costs of suit."
The demurrer of the defendants rested upon four grounds:
"First. That the property sought to be recovered in this action
is not described by its legal subdivisions, nor by its metes and
bounds."
"Second. That the lodes alleged to be embraced within the said
tunnel site location, and for which a recovery is asked by the said
plaintiff, are not mentioned nor described, nor any location of
them, or any of them, alleged."
"Third. That said complainant does not show any valid and legal
subsisting preemption or location of said Silver Gate Tunnel
site."
"Fourth. That the claim of the said plaintiff to a strip of
ground 5,000 feet in length by 500 feet in width as a tunnel site
is unwarranted and unprecedented, and was not at the
Page 127 U. S. 475
date of said pretended location, nor at any time subsequent
thereto, authorized by any local, state, or congressional law.
"
Page 127 U. S. 479
MR. JUSTICE LAMAR, after stating the case as above reported,
delivered the opinion of the Court.
The opinion of the court below is not found in the record, and
we are not advised, by brief or otherwise, as to the grounds
Page 127 U. S. 480
upon which the court sustained the demurrer. We must therefore
determine the issues presented in the case by reference to the bill
of complaint and to the causes assigned for demurrer.
First. That the property sought to be recovered in this
action is not described by its legal subdivisions, nor by its metes
and bounds. We do not think this ground is tenable. The complaint,
after setting forth the location by plaintiff's grantors of the
tunnel and tunnel site in Snake River Mining District, Summit
County, Colorado, at the base of the Glacier Mountain, states that
they (said grantors) caused to be made out, and recorded in the
recorder's office of the county aforesaid, a location certificate
of said tunnel claim, which said certificate described the location
and boundaries of said tunnel claim; that the said tunnel claim was
by its locators named the "Silver Gate Tunnel Claim," and is
described more fully as follows:
"Commencing at the base of said Glacier Mountain east of Bear
Creek, and running southeast and parallel with Coley tunnel,
through said mountain, five thousand feet from the mouth or
starting point of said tunnel at a stake marked, and in or at the
mouth of said Silver Gate Tunnel, and two hundred and fifty feet
northeast, and two hundred and fifty feet southwest from said stake
or tunnel, to its termination."
We think this description is sufficiently plain and distinct to
enable the sheriff, in case of a recovery, to execute a writ of
possession or to enable a surveyor to ascertain the exact limits of
the location. The strict rule of pleading which formerly required
exact accuracy in the description of premises sought to be
recovered has, in modern practice, been relaxed and a general
description of the property held to be good. The provisions of
state statutes, as to the description of the premises by metes and
bounds have been held to be only directory, and a description by
name, where the property is well known, is often sufficient.
As to the second cause of demurrer, we think that, though the
lodes alleged to be embraced within the said tunnel site location
are not each separately described, the statement in the complaint
that all the lodes in the tunnel claim have been
Page 127 U. S. 481
worked and mined by the plaintiff and its grantors comprehends
every part of the property for the recovery of which the action is
brought.
With reference to the third ground of the demurrer, it is only
necessary to say that the complaint alleges that a valid and legal
location of said tunnel was made by persons under whom the
plaintiff claims, and that the plaintiff held possession of the
same for more than five consecutive years prior to the ouster by
the defendants, and paid all the taxes during that period legally
or otherwise assessed upon said property. This, under the laws of
Colorado, would give the plaintiff a right to the premises in
dispute superior to any other claim except that of the
government.
The fourth ground of demurrer is:
"That the claim of the said plaintiff to a strip of ground 5,000
feet in length, by 500 feet in width, as a tunnel site is
unwarranted and unprecedented, and was not at the date of said
pretended location, nor at any time subsequent thereto, authorized
by any local, state, or congressional law."
Under § 2323 Rev.Stat., the right is given to locate a tunnel
3,000 feet from the face of said tunnel, and the right is also
given to the lodes discovered in said tunnel, "to the same extent
as if discovered from the surface," which is 300 feet on each side
of the tunnel. Under the local laws of Colorado, the right is given
to "250 feet each way from said tunnel, on each lode so
discovered." 1801, � 5, General Laws of Colorado, 627. The
objection presented by the demurrer is that the tunnel is 5,000
feet in length, whereas the statute only recognizes a right of
3,000 feet from the mouth thereof, and that this renders the whole
claim void.
We do not assent to this proposition. The location would be good
to the extent of 3,000 feet at least.
Richmond Mining Co. v.
Rose, 114 U. S. 576,
114 U. S. 580.
This would be true had the location been made under the mining laws
now in force. It will be observed, however, that this location was
made prior to the passage of any general mineral law. It was made
in 1865, and the first general statute passed by Congress on the
subject is that of July 26, 1866. It is alleged by the plaintiff in
error that this location was made in accordance
Page 127 U. S. 482
with the local rules and customs of miners in force at the time
of the location, and that therefore such location was recognized
and protected by the general mineral laws of July 26, 1866, 14
Stat. 251, and that of May 10, 1872, 17 Stat. 91. This allegation,
however, is denied by the defendants; but, as these local rules and
customs differ in the several mining districts as to the extent and
character of the mine, the question cannot properly be determined
on demurrer.
The Land Department of the government, and this Court also, have
always acted upon the rule that all mineral locations were to be
governed by the local rules and customs in force at the time of the
location when such location was made prior to the passage of any
mineral law by Congress.
Jennison v. Kirk, 98 U. S.
453,
98 U. S. 457;
Broder v. Water Co., 101 U. S. 274,
101 U. S. 276;
Jackson v. Roby, 109 U. S. 440,
109 U. S. 441;
Chambers v. Harrington, 111 U. S. 350,
111 U. S.
352.
We are therefore of the opinion that the cause of action is
plainly and fully set forth in the complaint, and that the judgment
of the court below cannot be sustained on any ground presented by
the record.
The judgment of the circuit court is therefore reversed and
the cause remanded to that court for such further proceedings as
are consistent with this opinion. So ordered.