Intrusion upon and location of a mining claim within the
territory set apart by the treaty proclaimed November 4, 1868, for
the exclusive use and occupancy of the confederated bands of Ute
Indians was forbidden thereby, and was inoperative to confer any
rights upon the plaintiffs. Location of the same premises by others
after extinguishment of the Indian title and prior to relocation of
the former prohibited claim gave the right of possession.
The failure of the plaintiffs to record their location after
extinguishment of such Indian title within the period prescribed by
the laws of Colorado,
Page 144 U. S. 659
and until long after the premises had been properly located by
others, forbids their claim of priority based upon a wrongful entry
during the existence of the Indian Reservation.
Noonan v. Caledonia Mining Co., 121 U.
S. 393, cited and distinguished.
This action was brought in a district court of Colorado to
recover possession of a tract of mineral land, a part of what was
known as the "Bear Lode." The plaintiffs claimed under a location
made September 3, 1872. The land so located was at that time within
the territory reserved for the use and occupancy of the Ute
Indians. The Indian title was extinguished in March, 1874, and the
defendant claimed under a location made August 29, 1874. The case
was submitted on the pleadings and the following stipulation.
"The following stipulation is agreed upon by and between the
parties, and testimony relating to the matters herein referred to
is waived and may be dispensed with upon the hearing and
trial."
"I. It is admitted that the 'Bear' lode was located Sept. 3rd,
1872, and was duly recorded as stated in the complaint. It is
admitted by the defendant that all the averments in paragraph II of
the complaint are true, excepting the averment that the Bear Lodge
mining claim was at the date of its location 'a part of the public
domain of the United States and unoccupied and unclaimed by any
person and was open to entry as mineral lands,' and excepting
further that if the locators of the Bear lode were entitled to make
any such location whatever of said premises or any part thereof
they were not entitled on Sept. 3rd, 1872, or any time prior to
June 15th, 1874, to locate a claim exceeding fifty (50) feet in
width, and defendant therefore denies that plaintiffs are entitled
to more than 50 feet in width, if they are entitled to
anything."
"It is further admitted that an additional certificate of
location was filed, as stated in paragraph 5 of the complaint."
"It is also admitted that the plaintiffs are the proper persons
to maintain this suit, and proof of chain of title and production
of conveyances and records is dispensed with."
"It is further admitted that the allegations contained in
paragraph 9 of plaintiffs' complaint are true. "
Page 144 U. S. 660
"II. It is further admitted that on the 29th day of August, A.D.
1874, A. H. Kallenberg, W. H. Wallace, and J. G. Jackson located
the 'Titusville' lode, and plaintiffs admit that all the matters
and things stated in paragraph 1 of second defense and answer are
true, excepting the statement that said 'premises
was then
(Aug. 29th, 1874) a part and parcel of the unoccupied and
unappropriated public domain of the United States,' which last
averment plaintiffs do not admit."
"It is further admitted that since the respective locations of
said 'Bear' and 'Titusville' lodes, each of the claimants and their
grantors have duly done and performed the annual assessment work,
and neither party shall be required to introduce testimony relating
to the annual expenditures required by law."
"It is further agreed that the defendant named is the proper
party defendant in this action, and that no proof of its chain of
title to the 'Titusville' lode or the production of conveyances or
records showing such title shall be required."
Judgment for the defendant, which was affirmed by the supreme
court of the state. To the latter judgment this writ of error was
sued out.
Page 144 U. S. 661
MR. JUSTICE FIELD delivered the opinion of the court.
The defendant, a corporation organized and existing under the
laws of Colorado, in October, 1880, applied to the proper land
office in that state for a mineral patent for a lode claim
Page 144 U. S. 662
known as the "Titusville Lode," in San Juan County, which was
fifteen hundred feet in length by three hundred feet in width.
Within the time prescribed by statute, and during the month, the
appellants here, Kendall and others, filed in the same land office
an adverse claim for a portion of the premises of which the
defendant desired to obtain a patent, asserting a prior and
superior right to the same, as part of a lode known as "Bear Lode,"
which they had discovered on the 3d of September, 1872, and upon
which they had sunk a discovery shaft, and performed the several
acts required to perfect a mineral location under the laws of the
United States and the local rules and customs of miners. Within
thirty days thereafter they brought the present action under
section 2326 of the Revised Statutes, to determine, as between the
parties, the right of possession to the disputed premises, the
issue of a patent for the same being dependent upon such
determination. In their complaint, they allege the performance of
the labor required, and all other acts necessary to preserve the
lode from forfeiture. That lode, as originally located, extended
fifteen hundred feet in length and one hundred feet on each side of
the center of the vein. In October, 1878, the locators filed an
additional certificate of location in the local land office,
claiming one hundred fifty feet on each side of the center. And
they aver that the Titusville lode, claimed by the defendant
corporation, is a junior location, and includes in length twelve
hundred feet of the surface ground of the Bear lode, and in width
covers more than the south half of the surface ground for the
twelve hundred feet.
The defendant, in its answer, denies that the ground in
controversy comprised part of the unappropriated public domain of
the United States, and that it was open to location on the 3d day
of September, 1872, as set forth by the plaintiffs, and alleges
that at that date the ground embraced a portion of a certain tract
of land which, by treaty between the United States and certain
confederated bands of the Ute Indians in Colorado, concluded March
2, 1868, and proclaimed on the 6th of November of the same year,
had been reserved for the use and occupancy of the Indians, and
that the Indian title to the
Page 144 U. S. 663
tract was not extinguished until March, 1874. 15 Stat. 619. The
answer also alleges that the Titusville lode claim was located on
the 29th day of August, 1874; that all acts were done necessary to
constitute a valid location of the premises, and that the legal
title to the lode, and the right to its possession, had, by various
conveyances from the original locators, become vested in the
defendant, and it prays judgment therefor.
By the terms of the treaty mentioned, a tract of country, which
included the mining property in question, was set apart for the
absolute and undisturbed use and occupation of the Indians therein
named, and for such other friendly tribes or individual Indians as
from time to time they might be willing, with the consent of the
United States, to admit among them, and the United States agreed
that no persons except those designated, and such officers, agents,
and employees of the government as might be authorized to enter
upon Indian reservations in discharge of duties enjoined by law,
should ever be permitted to "pass over, settle upon, or reside in
the territory described," except as therein otherwise provided. 15
Stat. 619, 620. The effect of the treaty was to exclude all
intrusion for mining or other private pursuits upon the territory
thus reserved for the Indians. It prohibited any entry of the kind
upon the premises, and no interest could be claimed or enforced in
disregard of this provision. Not until the withdrawal of the land
from this reservation of the treaty by a new convention with the
Indians, and one which would throw the lands open, could a mining
location thereon be initiated by the plaintiffs. The location of
the Bear lode, having been made while the treaty was in force, was
inoperative to confer any rights upon the plaintiffs. Whatever
rights to mining land they subsequently possessed upon the original
Indian tract were founded upon a new location, made more than two
years after the withdrawal of the reservation, and after the
Titusville lode had been located by the defendant. Had the
plaintiffs, immediately after the withdrawal of the reservation,
relocated their Bear lode, their position would have been that of
original locators. They would then have been within the rule in
Noonan
Page 144 U. S. 664
v. Mining Co., 121 U. S. 393.
That rule was this: that where a party was in possession of a
mining claim on the withdrawal of a reservation caused by a treaty
with the Indians, with the requisite discovery, with surface
boundaries sufficiently marked, with a notice of location posted,
and with a disclosed vein of ore, he could, by adopting what had
been done, and causing a proper record to be made, and performing
the amount of labor or making the improvements necessary to hold
the claim, date his rights from that day. But such was not the case
here. The reservation by the treaty was withdrawn in March, 1874;
the Titusville lode was located on the 29th day of August, 1874,
and the Bear lode of the plaintiffs was not relocated until two
years afterwards.
Whatever rights, therefore, the plaintiffs had subsequently to
the withdrawal of the reservation in the premises claimed by the
defendant arose from its disclaimer. By that disclaimer the company
relinquished to the plaintiffs such portion of their Bear lode,
with surface width of fifty feet, as came in conflict with the
premises claimed by it under the Titusville location; and, upon its
motion in the trial court, judgment was entered pursuant to such
disclaimer for the plaintiffs for the amount disclaimed and for the
defendant for the residue.
The plaintiffs now seek, by their writ of error, to recover the
residue of the Titusville lode, insisting that under the decision
in
Noonan v. Caledonia Mining Co., they have a right to
all the premises which were covered by their illegal location
during the pendency of the Indian treaty. But such is not the
proper construction of that decision. There was in that case no new
location by different parties, after the removal of the
reservation, to interfere with the old location, then renewed, and
with a proper record.
There is another view of this case, which leads to the same
conclusion. Section 2324 of the Revised Statutes makes the manner
of locating mining claims and recording them subject to the laws of
the state or territory, and the regulations of each mining
district, when they are not in conflict with the laws of the United
States. The act of Colorado of February 13, 1874, requires the
discoverer of a lode, within three months
Page 144 U. S. 665
from the date of discovery, to record his claim in the office of
the recorder of the county in which the lode is situated by a
location certificate.
It also provides that a location certificate of a lode claim
which shall not contain the name of the lode, the name of the
locator, the date of the location, the number of linear feet
claimed on each side of the discovery shaft, the general course of
the lode, and such description as shall identify the claim with
reasonable certainty, shall be void.
The reservation of the premises in controversy by force of the
Indian treaty was extinguished April 29, 1874. On that date the
premises in controversy were open to location, and within three
months afterwards the duty rested upon the plaintiffs to record the
certificate of the location of their lode, if they desired to
preserve any right in it. No such record of their location was made
within that time. No record was made or desired by them until an
additional certificate of location was filed by them, claiming 150
feet on each side of the center of their vein, which was not done
until October, 1878. As they failed to comply with the law in
making a record of the location certificate of their lode, it does
not lie with them to insist that their wrongful entry upon the
premises during the existence of the Indian reservation operated in
their favor against parties who went upon the premises after they
had become a part of the public domain, and made a proper location
certificate and record thereof, and complied in other particulars
with the requirements of the law.
Judgment affirmed.
