A notice to a co-owner to contribute his share of development
work on a mining claim, when rightfully published under § 2324, is
effective in cutting off the claims of all parties, and the title
is thus kept clear and free from uncertainty and doubt. Claims for
more than one year may be grouped in one notice.
It is not necessary for the notice to delinquent co-owners
required by § 2324, Rev.Stat., to specifically name the heirs of a
deceased co-owner, but is sufficient if addressed to such co-owner,
"his heirs, administrators and to whom it may concern," even though
an administrator had not been appointed at the time.
A notice published every day except Sundays, commencing Monday,
January 7, and ending Monday, April 1,
held to have been
published once a week for ninety days, and to be sufficient under §
2324, Rev.Stat.
The plaintiffs in error, being the administrator, together with
the heirs at law of Rufus Wilsey, deceased, commenced this suit in
the state court of South Dakota against the defendants, and upon
the trial, the complaint was dismissed upon the merits; that
judgment was affirmed by the supreme court of the state, and the
plaintiffs have brought the case here. The action was commenced to
obtain a decree that defendants held in trust for the plaintiffs in
error an undivided one-half interest in and to the land embraced in
what is called in the complaint the Golden Sand lode mining claim,
and plaintiffs asked for a decree that the defendants should convey
to the plaintiff in
Page 194 U. S. 249
error, Elder, administrator, an undivided one-half interest
therein, and for such other and further relief as might be just and
equitable.
The answer contained a denial of the various allegations of the
complaint and set up a defense of laches on the part of the
plaintiffs in error in asserting their claim. The case went to
trial before the court, and the following facts were found:
In January, 1878, Rufus Wilsey and Charles H. Havens located a
mining claim near Bald Mountain, in the Whitewood Mining District,
Lawrence County, South Dakota, by discovering mineral-bearing rock
in place, sinking a shaft, posting discovery notices, and planting
boundary stakes, and on May 13 of the same year they filed for
record their location certificate, which was then recorded. On June
12, 1878, Wilsey died, and soon thereafter the plaintiffs, his
heirs at law, were informed of his death. They knew that he had
left property, and from a time shortly after his death corresponded
with different attorneys and others residing in the Black Hills,
trying to get something out of the estate, but, until the
arrangement was made with the attorneys under which this action is
brought, made no progress towards a settlement. From the time of
the death of Wilsey, in 1878, up to December, 1893, the heirs of
Wilsey did nothing towards contributing or offering to contribute
towards paying for the annual labor made necessary by the federal
statute, Rev.Stat. sec. 2324, 2 Comp.Stat. 1901, p. 1426, in order
to keep possession of the mine. On June 19, 1878, one Evans was
appointed special administrator of the estate of Wilsey, and his
letters were subsequently revoked, and one Stevens was appointed
and filed his bond as administrator on August 13, 1881.
Subsequently, on an allegation of the death of Stevens sometime in
1888, the present administrator was appointed on the twelfth of
August, 1893.
In 1889 or soon thereafter, processes for the successful
treatment of all mining ores, including such ore as was found in
the ground in controversy, were introduced in Lawrence County, and
as a consequence the value of the mining property
Page 194 U. S. 250
therein was materially enhanced, and this property became of
much greater value in August, 1892, and December, 1893, than at any
time since its location.
On December 5, 1893, the plaintiffs in error, by their
attorneys, served on the defendant company an offer in writing to
pay $700 for annual development and assessment work, and if that
was not the correct amount of the expense for protecting their half
interest in the Golden Sand lode, then they offered to pay the full
amount due for the protection of the half interest of the
plaintiffs in error, and they asked for a receipt, and demanded a
deed for such half interest. The offer and the request were
refused, and this action was begun on December 6, 1893.
From the time of the location of the mine up to 1888, inclusive,
Havens, the co-owner with Wilsey, did at least one hundred dollars
worth of labor each year in order to hold the claim, and filed on
January 2, 1889, an affidavit to that effect, including the time
from 1880 to and including the year 1887, and another affidavit to
the same effect for the year 1888. Under the statute, he published
a notice directed to "Rufus Wilsey, his heirs, administrators, and
to all whom it may concern," informing them that he had expended
$800 in labor upon the mine for the years ending December 31, 1880,
1881, 1882, 1883, 1884, 1885, 1886, and 1887, and stating that, if,
within ninety days after this notice by publication, they failed to
contribute their proportion, $400, being $50 for each of said
years, their interest in said claim would become the property of
the subscriber under § 2324 of the Revised Statutes of the United
States. Havens also published for the year 1888 a notice similar to
the one already given in regard to the work done prior to that
year. The two notices were published in the proper newspaper and
were set out in full and published in each daily issue of the paper
(every day in the week except Sunday), beginning Monday, January 7,
1889, and concluding Tuesday, April 2, 1889, and no more. Havens
also continued, during the years 1889, 1890, 1891, and 1892, to do
at least $100 worth of work in the mine for the purpose of holding
the same. On
Page 194 U. S. 251
August 10, 1892, Havens made a deed of the whole lode and mining
claim to one Thomas H. White, and on August 25, 1892, White caused
to be filed for record an affidavit of Havens, which recited that
he was one of the locators of the Golden Sand lode, and that
Wilsey, his co-owner, and whom he advertised out for not
contributing his proportion of labor, had not paid his proportion
nor any of the expenditures for holding the claim.
Questions were made as to the sufficiency of the notices and as
to the regularity of the publication of the same under the above
statute of the United States. The case was tried once before, and
resulted in a judgment for plaintiffs which was reversed by the
supreme court of the state, 9 S.D. 636, and upon the new trial the
judgment was for the defendants. 15 S.D. 124.
Page 194 U. S. 253
MR. JUSTICE PECKHAM, after making the above statement of facts,
delivered the opinion of the Court.
The federal questions which arise in this case are based upon
the statute of the United States already referred to in the
foregoing statement of facts, being section 2324 of the Revised
Statutes, the material portion of which is set forth in the margin.
*
The plaintiffs in error contend that the notices published by or
in behalf of the defendants in error were not a compliance with the
statute, because of the manner in which they were addressed. They
also insist that, even assuming the sufficiency of the notices,
they were not published in accordance with the
Page 194 U. S. 254
requirements of the statute for a sufficient length of time, and
that therefore the title of the plaintiffs in error was not
divested. We are not impressed with the validity of either of the
two objections.
As to the first. The notice was addressed as follows: "To Rufus
Wilsey, his heirs, administrators, and to all whom it may concern."
The objection made is that, at the time when this notice was
published, Rufus Wilsey was dead, and there was no administrator
then existing, and the names of the heirs were not given, and the
notice, "to whom it may concern," was futile.
The statute, it will be observed, does not require that the
published notice in regard to a deceased co-owner shall be directed
to anyone by name. Upon the failure of a co-owner to contribute his
proportion of the expenditure required under the section, the
co-owner who has performed the labor or made the improvements may,
as provided for by the section at the expiration of the year, give
such delinquent co-owner personal notice in writing or notice by
publication in the newspaper published nearest the claim, and if,
at the expiration of ninety days after such notice in writing or by
publication, the delinquent refuses to contribute his proportion or
fails to do so, his interest in the claim thereby becomes the
property of his co-owners who have made the required expenditures.
We perceive no possible harm arising from the fact that the notice
itself, containing all the facts necessary to be included therein,
was addressed to "Rufus Wilsey, his heirs, administrators, and to
whom it may concern." The fact that Rufus Wilsey was dead was not
material so far as to thereby render the notice to his heirs
illegal or insufficient. It certainly did them no harm to include
the name of Rufus Wilsey, and the notice was quite as likely to
become known to them as if it had been addressed "to the heirs of
Rufus Wilsey, deceased, his administrators, and to all whom it may
concern." It is entirely unlike the publication of a summons for
the purpose of commencing an action against a particular individual
or individuals. There, the identification must be complete and the
person particularly described
Page 194 U. S. 255
and named, so that, when the publication has been finished, it
can be known that the particular individual has been served with
process by publication with the same effect as if it had been
personally served on the same individual without publication. This
statute provides a summary method for the purpose of insuring the
proper contribution of co-owners among themselves in the working of
the mine, and it provides a means by which a delinquent co-owner
may be compelled to contribute his share, under the penalty of
losing his right and title in the property because of such failure.
It was not necessary, in our judgment, that the notice should
specifically name the heirs of the deceased owner. The act does not
require it. If the notice be such that the former owner is
particularly named and identified thereby, and his heirs are
notified by the publication, it is a sufficient notice to them for
the purpose of making it necessary for them to comply with the
terms of the statute within the time designated therein by the
payment of their share of the expenses of working the mine, or else
to loss their right, title, and interest therein. The co-owner who
did the work might not know who the heirs were, and it might be
impossible for him to learn their names or whereabouts, and the
statute never contemplated that the man who did the work should be
prevented from obtaining the benefit of the statute by his
inability to learn who the heirs were and where they lived. A
general address to the heirs of the person named, and the proper
publication of the notice, is sufficient. It did not become
insufficient because, in addition to being addressed to them, it
was also addressed to their intestate by name. An address to a
deceased person did them no harm, so long as it was also addressed
to them.
The Supreme Court of South Dakota has held in this case that at
the time this notice was published the title to a one-half interest
in this claim was in the heirs, subject to a possible lien of the
administrator for administration purposes, and had been since the
death of Wilsey. 9 S.D. 636, 642. The same court has held that an
administrator has but a lien on real
Page 194 U. S. 256
estate for administrative purposes, and that the title vests in
the heirs. (Cases cited in opinion of the state court.) The only
debt, so far as the record shows, existing against the estate of
Wilsey was one for $50, in favor of Stevens, who was appointed
administrator in 1881, and died in 1888, and from then until 1893
there was no administrator, the present one being appointed
evidently for the purpose of this suit. The actual title to the fee
is in the government, but the interest of the miner may be conveyed
and inherited.
Black v. Elkhorn Mining Co., 163 U.
S. 445,
163 U. S. 449.
We are of opinion that the publication of the notice was
sufficient, although there was no administrator at the time of
publication. It is unnecessary under this statute to publish a
notice to lienors. We agree with the supreme court of the state
that the evident purpose and object of the law of 1872 (section
2324) were to encourage the exploration and development of the
mineral lands of the United States and the sale of the same, and
that, all the provisions of the law having been framed with that
object in view, if the required work is not performed, after the
expiration of the year and notice of contribution properly served
or sufficiently published, the rights of delinquents are absolutely
cut off, though the failure to do the work may have been caused by
the death of the locator or locators during the year. When a notice
has been rightfully published under the statute, it becomes
effective in cutting off the claims of all parties, and the title
is thus kept clear and free from uncertainty and doubt.
There was no irregularity in grouping in one notice claims for
more than one year's expenditures. We can perceive no reason why a
consolidation of the claims of several years should not be made and
included in one and the same notice.
(2) The objection to the sufficiency of the publication of the
notice we regard as equally unfounded. The statute provides for a
publication "for at least once a week for ninety days." The
publication was in fact made every day, except Sunday, in the
proper newspaper, beginning Monday, January 7, 1889,
Page 194 U. S. 257
and concluding Tuesday, April 2, 1889. And the statute provides
that if, after the expiration of ninety days after such notice in
writing or publication, such delinquent should fail or refuse to
contribute his proportion of the expenditure required by this
section, his interest in the claim shall become the property of his
co-owners who have made the required expenditures. The publication,
we think, was sufficient. The ninety-day period begins with the
first publication -- in this case, Monday, January 7. The
publication on that day was sufficient for the week then beginning.
The publication on January 15 was sufficient for that week, and, as
stated by the Supreme Court of South Dakota:
"Each succeeding Monday would certainly constitute at least one
publication each week while so continued. There was a publication
on each Monday from January 7 to April 1, both inclusive. If no
publication was required after the first until the following
Monday, none was required after April 1 until the following Monday,
April 8, and on that day the period of ninety days had been
completed. Including the first day of publication, ninety days
ended on Saturday, April 6. Excluding the first day, ninety days
ended on Sunday, April 7. On that day, the required notice had
continued during ninety days, and another publication on Monday,
April 8, was wholly unnecessary."
We are satisfied that this construction is the correct one, and
the publication was therefore made for a sufficient length of time
to comply with the statute.
The judgment of the Supreme Court of South Dakota is
Affirmed.
* Rev.Stat. § 2324, as amended 20 Stat. 61. c. 9, 2 Comp.Stat.
p. 1426.
"On each claim located after the tenth day of May, eighteen
hundred and seventy-two, and until a patent has been issued
therefor, not less than one hundred dollars' worth of labor shall
be performed or improvements made each year. On all claims located
prior to the tenth of May, eighteen hundred and seventy-two, ten
dollars' worth of labor shall be performed or improvements made by
the tenth day of June, eighteen hundred and seventy-four, and each
year thereafter, for each one hundred feet in length along the vein
until a patent has been issued therefor; but where such claims are
held in common, such expenditure may be made upon any one claim,
and upon a failure to comply with these conditions, the claim or
mine upon which such failure occurred shall be open to relocation
in the same manner as if no location of the same had ever been
made, provided that the original locators, their heirs, assigns, or
legal representatives, have not resumed work upon the claim after
failure, and before such location. Upon the failure of any one of
several co-owners to contribute his proportion of the expenditures
required hereby, the co-owners who have performed the labor or made
the improvements may, at the expiration of one year, give such
delinquent co-owner personal notice in writing, or notice by
publication in the newspaper published nearest the claim, for at
least once a week for ninety days, and if, at the expiration of
ninety days after such notice in writing or by publication, such
delinquent should fail or refuse to contribute his proportion of
the expenditure required by this section, his interest in the claim
shall become the property of his co-owners who have made the
required expenditures. Provided, That the period within which the
work required to be done annually on all unpatented mineral claims
shall commence on the first day of January succeeding the date of
location of claim, and this section shall apply to all claims
located since the tenth day of May, Anno Domini eighteen hundred
and seventy-two."
