This Court does not review questions of fact in cases coming
from a state, court but accepts the conclusions of the state
tribunal as final.
Where an attempted mineral location is a failure by reason of a
lack of discovery and all rights have been conveyed to a third
party who formally relinquishes them, the land is again open to
location, and the party so relinquishing may locate it and become
entitled thereto by subsequent discovery, and otherwise complying
with the law, without waiting until the relinquished location
lapsed by failure to do the annual work required by statute.
In controversies between two mineral claimants, the rule as to
sufficiency of discovery is more liberal than it is in
controversies between a mineral claimant and an agricultural
entryman, as in the latter the land is sought to be withdrawn from
the category of agricultural lands, while in the former the
question is merely one of priority.
While the statute does not prescribe what is necessary to
constitute a discovery under the mining laws of the United States,
it is essential that it gives reasonable evidence of the fact
either that there is a vein or lode carrying precious minerals or,
if it be claimed as placer ground, that it is valuable for such
mining, and where there is not enough in what a locator claims to
have seen to justify a prudent person in the expenditure of money
and labor in exploitation, this Court will not overthrow a finding
of the lower court that there was no discovery.
This was an action in the Superior Court of Fresno County,
California, to quiet title to certain lands in that county. The
complaint by Miller and the Home Oil Company was filed October 14,
1898. The case was tried by the court without
Page 197 U. S. 314
a jury, findings of fact were made, and a decree entered in
favor of the plaintiffs. On appeal to the supreme court of the
state, this decree was affirmed, September 13, 1903. 140 Cal. 440.
Thereafter the case was brought to this Court on writ of error. The
dispute between the parties was as to the validity of respective
locations of the land under the mineral laws of the United States.
The mineral found therein, and on account of which the locations
were made, was petroleum. From the findings, it appears that, on
June 14, 1895, eight persons, one Barieau being of the number,
attempted to make a mineral location upon the tract in controversy,
the same being an entire quarter section. Whatever interest they
thus acquired was, on December 24, 1896, conveyed to E. O. Miller.
On December 31, 1896, Miller, by his written declaration, abandoned
and relinquished all rights which he had acquired by this
conveyance. On the same day and about four hours thereafter, Miller
and seven others, duly qualified to make entries, made a mineral
location of the entire tract. Subsequently all interests obtained
thereby were vested in the plaintiffs. On January 1, 1897, the
defendants attempted to make a location of certain portions of the
tract. The tenth, eleventh, fifteenth, seventeenth and eighteenth
findings are as follows:
"X. That immediately after going into possession of said
northeast quarter of said section 20, the said plaintiff, Home Oil
Company, commenced digging, boring, and excavating thereon for
petroleum and other fluid products, and has expended in such work
the sum of more than $30,000, and by means of such digging, boring,
and excavating discovered large quantities of petroleum therein,
and there now exists, and did at the commencement of this action,
wells of great depth, sunk and excavated upon said property by said
Home Oil Company, from which there is a daily flow of large
quantities of petroleum of great value."
"XI. That ever since the 17th day of September, 1897, the said
plaintiff, Home Oil Company, has been and is now
Page 197 U. S. 315
in the sole and exclusive possession of all of said real
property, and engaged in working, developing, and mining the same,
and extracting petroleum and other fluid products therefrom."
"XV. That said defendant A. Y. Chrisman never at any time
discovered a seepage of petroleum or other mineral oil upon said
land or any part thereof, and the defendant H. T. Chrisman never
discovered a seepage of petroleum or other mineral oil upon said
land or upon any part thereof, and that the only discovery of
petroleum or any other fluid produce upon said lands or upon any
part thereof is the discovery made by the plaintiff Home Oil
Company as in these findings before stated."
"XVII. That on the said 1st day of January, 1897, no part of the
said northeast quarter of section 20 was vacant public mineral land
or open to exploration or location for mining purposes, but, on the
contrary, the whole of said northeast quarter of said section 20
was then in the possession of J. A. Hannah, E. O. Miller, W. F.
Hall, D. G. Overall, L. E. Hall, Harry Levinson, R. B. Biddle, and
Charles H. Smith, under and by virtue of their location of said
land hereinbefore mentioned."
"XVIII. That the said defendants, A. Y. Chrisman and H. T.
Chrisman, did not make the location for mining purposes
hereinbefore mentioned in good faith, and did not, nor did either
of them, enter into the possession thereof or any part of the same
for the purpose of working and mining thereon on the 1st day of
January, 1897, or upon any other date, and said defendants have not
and neither of them has since the 1st day of January, 1897, or
since any day whatever, done and performed upon said land or any
part thereof such work and labor or made improvements thereon as is
required by the laws of the United States or of the State of
California, and that the said defendants have not been and neither
of them has been in the exclusive possession of said tracts of land
so claimed by them, and said defendants are not, and neither of
them is, in the possession of said tracts of land so claimed by
them or
Page 197 U. S. 316
either of them, or any part thereof, and the said defendants
ever since the said 1st day of January, 1897, or since any day
whatever or at all have not been nor are they or either of them now
entitled to the exclusive or any possession of the tracts of land
claimed by them or any part thereof, nor are said defendants
entitled, nor is either of them entitled, to the exclusive or any
possession whatever of any part of said northeast quarter of said
section 20, in township 19 south, range 15 east, Mt. Diablo base
and meridian. "
Page 197 U. S. 319
MR. JUSTICE BREWER delivered the opinion of the Court.
In cases coming from a state court, we do not review questions
of fact, but accept the conclusions of the state tribunals as
final.
Clipper Mining Co. v. Eli Mining & Land Co.,
194 U. S. 220, and
cases cited in the opinion;
Kaufman v. Tredway, 195, U.S.
271;
Smiley v. Kansas, 196 U. S. 447.
By the findings of the trial court, the Chrismans, plaintiffs in
error, never made any discovery of petroleum or other mineral oil,
did not make the attempted location in good faith, and never did
any work on the tract. These findings were of date June 24, 1899,
nearly two years and a half after their attempted location. It
would seem from these facts that they had no pretense of right to
the premises.
It is contended, however, that the supreme court, in its
opinion, practically set aside these findings in one respect, and
that is the discovery of petroleum. We do not so understand that
opinion. The only reference made to the matter is in these
words:
"The alleged discovery of defendants under their location may be
disposed of in a single sentence. It amounted to no more than the
pretended discovery by Barieau;"
and in reference to Barieau's alleged discovery, the court
said:
"Upon the question of discovery, the sole evidence is that of
Barieau himself. Giving fullest weight to that testimony, it
amounts to no more than this, that Barieau had walked over the land
at the time he posted his notice, and had discovered 'indications'
of petroleum. Specifically, he says that he saw a spring, and"
"the oil comes out and floats over the water in the summer time,
when it is hot. In June, 1895, there was a little water with oil
and a little oil with water coming out. It was dripping over a rock
about two feet high. There was no pool; it was just dripping a
little water and oil, not much
Page 197 U. S. 320
water."
This is all the "discovery" which it is even pretended was made
under the Barieau location.
There is nothing in this language from which it can be inferred
that the supreme court of the state set aside the finding of the
trial court. All that it said was in answer to the contention of
the defendants that they had made a discovery, and that contention
the supreme court repudiated, leaving the finding of fact to stand
as it was made by the trial court.
It is further contended that the location made by Barieau and
his associates and conveyed by them to Miller did not lapse until
midnight of December 31, 1896; that then it lapsed by reason of the
failure to do the annual work required by statute; that Miller
could not prior thereto abandon and relinquish that location, and
at the same time make a new one, as he attempted to do on the
afternoon of December 31, because the effect of such action would
be to continue a possessory right to the tracts without compliance
with the statutory requirement of work. Hence, as contended, the
only valid location was that made on January 1, 1897, by the
defendants. It may be doubted whether, in view of their want of
good faith, the defendant's can avail themselves of their
contention, and, indeed, also doubted whether they could uphold
their location by proof of a discovery by some other party. But it
has no foundation in fact, for, as found by the trial and held by
the supreme court of the state, the attempted location by Barieau
and his associates in June, 1895, was a failure by reason of a lack
of discovery. We have already quoted the declaration of the supreme
court. The testimony referred to in that quotation, even if true,
does not overthrow the finding. It does not establish a discovery.
It only suggests a possibility of mineral of sufficient amount and
value to justify further exploration.
By 29 Stat. p. 526, c. 216, "lands containing petroleum or other
mineral oils, and chiefly valuable therefor" may be entered and
patented "under the provisions of the laws relating to placer
mineral claims." By section 2329, Rev.Stat.,
Page 197 U. S. 321
placer claims are "subject to entry and patent, under like
circumstances and conditions, and upon similar proceedings, as are
provided for vein or lode claims." By section 2320, Rev.Stat., "no
location of a mining claim shall be made until the discovery of the
vein or lode within the limits of the claim located."
What is necessary to constitute a discovery of mineral is not
prescribed by statute, but there have been frequent judicial
declarations in respect thereto. In
United States v. Iron
Silver Mining Co., 128 U. S. 673, a
suit brought by the United States to set aside placer patents on
the charge that the patented tracts were not placer mining ground,
but land containing mineral veins or lodes of great value, as was
well known to the patentee on his application for the patents, we
said (p.
128 U. S.
683):
"It appears very clearly from the evidence that no lodes or
veins were discovered by the excavations of Sawyer in his
prospecting work, and that his lode locations were made upon an
erroneous opinion, and not upon knowledge, that lodes bearing metal
were disclosed by them. It is not enough that there may have been
some indications, by outcroppings on the surface of the existence
of lodes or veins of rock in place bearing gold or silver or other
metal, to justify their designation as 'known' veins or lodes. To
meet that designation, the lodes or veins must be clearly
ascertained and be of such extent as to render the land more
valuable on that account, and justify the exploitation. Although
pits and shafts had been sunk in various places, and what are
termed in mining cross-cuts had been run, only loose gold and small
nuggets had been found, mingled with earth, sand, and gravel. Lodes
and veins in quartz or other rock in place bearing gold or silver
or other metal were not disclosed when the application for the
patents were made."
This definition was accepted as correct in
Iron Silver
Company v. Mike & Starr Company, 143 U.
S. 394, though in that case there was a vigorous dissent
upon questions of fact, in
Page 197 U. S. 322
which Mr. Justice Field, speaking for the minority, said (p.
143 U. S.
412):
"The mere indication or presence of gold or silver is not
sufficient to establish the existence of a lode. The mineral must
exist in such quantities as to justify expenditure of money for the
development of the mine and the extraction of the mineral."
And again (p.
143 U. S.
424):
"It is not every vein or lode which may show traces of gold or
silver that is exempted from sale or patent of the ground embracing
it, but those only which possess these metals in such quantity as
to enhance the value of the land and invite the expenditure of time
and money for their development. No purpose or policy would be
subserved by excepting from sale and patent veins and lodes
yielding no remunerative return for labor expended upon them."
By the Land Department, this rule has been laid down, Castle v.
Womble, 19 L.D. 455, 457:
"Where minerals have been found and the evidence is of such a
character that a person of ordinary prudence would be justified in
the further expenditure of his labor and means, with a reasonable
prospect of success, in developing a valuable mine, the
requirements of the statute have been met. To hold otherwise would
tend to make of little avail, if not entirely nugatory, that
provision of the law whereby 'all valuable mineral deposits in
lands belonging to the United States . . . are . . . declared to be
free and open to exploration and purchase.'"
Some cases have held that a mere willingness on the part of the
locator to further expend his labor and means was a fair criterion.
In respect to this, Lindley on Mines (1st ed.) sec. 336, says:
"But it would seem that the question should not be left to the
arbitrary will of the locator. Willingness, unless evidenced by
actual exploitation, would be a mere mental state which could not
be satisfactorily proved. The facts which are within the
observation of the discoverer, and which induce him to locate,
should be such as would
justify a man of ordinary
Page 197 U. S. 323
prudence, not necessarily a skilled miner, in the expenditure of
his time and money in the development of the property."
It is true that, when the controversy is between two mineral
claimants, the rule respecting the sufficiency of a discovery of
mineral is more liberal than when it is between a mineral claimant
and one seeking to make an agricultural entry, for the reason that,
where land is sought to be taken out of the category of
agricultural lands, the evidence of its mineral character should be
reasonably clear, while in respect to mineral lands, in a
controversy between claimants, the question is simply which is
entitled to priority. That, it is true, is the case before us. But
even in such a case, as shown by the authorities we have cited,
there must be such a discovery of mineral as gives reasonable
evidence of the fact either that there is a vein or lode carrying
the precious mineral or, if it be claimed as placer ground, that it
is valuable for such mining.
Giving full weight to the testimony of Barieau, we should not be
justified, even in a case coming from a federal court, in
overthrowing the finding that he made no discovery. There was not
enough in what he claims to have seen to have justified a prudent
person in the expenditure of money and labor in exploitation for
petroleum. It merely suggested a possibility that the ground
contained oil sufficient to make it "chiefly valuable therefor." If
that be true were the case one coming from a federal court,
a
fortiori must it be true when the case comes to us from a
state court, whose findings of fact we have so often held to be
conclusive.
The judgment of the Supreme Court of California is
Affirmed.
