The Land Department refused to issue a patent on a mining lode
location for which the local office had issued final certificate on
the ground that the entry embraced two tracts separated by a placer
claim; but gave the applicant the privilege for a definite period
of electing which tract he would take, the entry to be cancelled on
one of the tracts specified unless he meanwhile appealed or made
his election. Within the period, he waived his appeal and elected
to take the other tract. Subsequently the Land Department entered a
formal order cancelling the entry as to the tract abandoned.
Meanwhile three entries were made of the abandoned tract. The first
immediately after the Land Department had refused the patent; the
second immediately after the election and relinquishment was made,
and the third immediately after the final order of cancellation was
entered. In consolidated adverse proceedings between these three
entrymen,
held that:
In adverse proceedings, each party is practically a plaintiff,
and must show his title.
The order refusing to grant the patent did not, of itself,
restore the land to the public domain during the period of
election, but the relinquishment of the original entryman to the
abandoned tract operated to do so
eo instanti, and the
formal order of cancellation merely recorded a preexisting fact,
and the rights of the party entering the land immediately after the
relinquishment were superior to those of the other entrymen.
Rulings of the Land Department as to land covered by a location
cannot be challenged collaterally in separate proceedings, and the
principle of freedom from collateral attack is equally applicable
in cases of final entry as in those where patent has issued.
A final certificate issued after submission of final proof and
payment of purchase price is for many purposes equivalent to a
patent.
Brown applied for a patent on a mining claim, known as the
Scorpion, and Gurney adversed this application as the owner and
claimant of the Hobson's Choice, as did Small,
Page 201 U. S. 185
also, as the owner and claimant of the P.G. Claim. Thereafter,
each brought suit in support of his adverse claim in the District
Court of Teller County, Colorado. The cases were tried together on
an agreed statement of facts. This showed that the Scorpion,
Hobson's Choice, and P.G. locations covered substantially the same
tract of ground, and were all made in compliance with law, with the
exception repeated in connection with each of said locations:
"
Provided, however, that it is not admitted that, at
the time of said location, the ground embraced in said location was
a part of the vacant and unappropriated public domain."
It appeared that, prior to May 28, 1895, a mining lode location
called the Kohnyo was owned by the Cripple Creek Mining Company,
which claim was divided into two noncontiguous tracts by the Mr.
Rosa placer claim. The north end of the Kohnyo, comprising five
hundred feet of the claim, was where the discovery of mineral was
made, and it also contained a discovery shaft and the other
workings and improvements of the claim. The south end being seven
hundred feet in length, did not show mineral, and was without
development work of any kind.
The following diagram illustrates the situation:
image:a
The local land office permitted the claimant of the Kohnyo to
enter the two tracts as one claim, but the Department ultimately
refused to issue a patent for such tracts, basing the refusal upon
the ground that two portions of a lode mining claim, separated by a
patented placer, could not be included within one patent. The Land
Office gave the applicant, however, the privilege to apply for a
patent upon either of
Page 201 U. S. 186
the segregated tracts, and directed that, in default of an
election or appeal by the claimant within sixty days from the date
of the order, the entry of that portion of the claim lying sough of
the Mr. Rosa claim should be cancelled without further notice. This
decision was rendered May 28, 1895, and no appeal was taken from
it; but the claimant of the Kohnyo instituted proceedings against
the claimant of the Mt. Rosa placer, the purpose of which was to
secure title to the vein of the Kohnyo, which, it was claimed,
passed through the portion of the placer claim which conflicted
with the Kohnyo location. These proceedings were prosecuted before
the Land Department, with the result that, on May 7, 1898, a
decision was rendered against the Kohnyo claimant's contention of a
known vein in the placer conflict.
June 14, 1898, the claimant of the Kohnyo filed in the Land
Office a written instrument, dated June 10, by which it elected to
retain and patent the north end of the Kohnyo claim, and in which
it also waived any right to further question or review the decision
of the Secretary of the Interior of May 7, 1898, affirming the
decision of May 28, 1895.
July 15, 1898, the Commissioner of the General Land Office
cancelled the entry of the Kohnyo claim as to that portion south of
the Mr. Rosa placer.
May 13, 1898, Brown located this seven hundred feet as the
Scorpion lode claim. June 23, 1898, Gurney located the same
premises as the Hobson's Choice lode claim, and July 16, 1898,
Small located the same ground as the P.G. lode claim. July 15 and
16, 1898, the claimant of the Scorpion filed amended and second
amended certificates.
On these facts, judgment was rendered for defendant in each
case, from which plaintiffs appealed to the supreme court of the
state. That court reversed the judgment in
Gurney v. Brown
and entered judgment that Gurney recover the premises included in
the Hobson's Choice location, and for costs, and reversed the
judgment in
Small v. Brown, and entered judgment "that
neither party has established any right to the
Page 201 U. S. 187
premises in controversy," and for costs. The opinion is reported
in 32 Colo. 472.
Page 201 U. S. 189
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The question in these cases, which was intended to be, and was
passed upon, is when, in respect of the three locations, did the
premises in controversy become subject to location?
In the state supreme court, counsel for Brown contended that the
judgment below must be affirmed because the agreed facts failed to
identify the premises in dispute as part of the Kohnyo claim; did
not establish the validity of that location; and did not
affirmatively show that the premises, when located
Page 201 U. S. 190
as the Scorpion, were not part of the unappropriated public
domain.
But the supreme court applied the rule that where the existence
of certain facts is assumed in the trial court and the trial
proceeds, without objection, on that assumption, and the case is
decided in reliance thereon, neither party will be heard in the
court of review to question there, for the first time, the
existence of the facts, and especially not where the alleged
omissions might have been supplied if called to the attention of
the trial court. And properly applied it, for the identity of the
ground in controversy and the validity of the original Kohnyo
location were conceded by both parties; and, indeed, counsel really
does not deny them as matters of fact, but simply objects that the
stipulation did not include them. Moreover, we think the
stipulation and exhibits attached containing the various
proceedings before the Commissioner of the General Land Office and
the Secretary of the Interior establish the validity of the Kohnyo
location. According to that record, the Kohnyo claim had passed to
final entry; this entry had been recognized by the Commissioner of
the General Land Office and the Secretary; the question litigated
in the Land Department for something like three years, as to the
knowledge of the placer applicant at the time of his application
for patent of the existence of the Kohnyo vein in the placer
ground, had been decided adversely to the Kohnyo claim; the Kohnyo
claimant had thereupon accepted this decision, acquiesced therein,
and availed himself of the privilege extended by the Commissioner's
decision of May 28, 1895, and elected to retain the northerly tract
of the Kohnyo claim, which amounted to a relinquishment of the
southerly tract, and the entry as to that tract was thereafter
formally canceled.
It may be added also that in adverse proceedings each party is
practically a plaintiff and must show his title.
Jackson v.
Roby, 109 U. S. 440;
Perego v. Dodge, 163 U. S. 160,
163 U. S. 167.
By the Act of Congress of March 3, 1881, 21 Stat 505, c. 140, it
was provided that if, in an adverse suit, "title to the ground
Page 201 U. S. 191
in controversy shall not be established by either party, the
jury shall so find, and judgment shall be entered according to the
verdict." Under that act, it is held that before the applicant for
a patent can have judgment, he must prove his claim of title to the
ground. The object of the statute was, as we said in
Perego v.
Dodge, supra, to provide, in the case of a total failure of
proof of title, for an adjudication
"that neither party was entitled to the property, so that the
applicant could not go forward with the proceedings in the land
office simply because the adverse claimant had failed to make out
his case, if he had also failed."
2 Lindley on Mines § 763, and cases cited.
Of course, it is essential that the date of a location the
ground located on should be part of the public domain, and in the
present case the specific question affirmatively raised was whether
the ground in controversy was a part of the public domain at the
time of the respective contested locations.
It seems to us that when the Scorpion locator attempted to make
that location, he conceded the validity of the Kohnyo location and
the segregation by that location from the public domain of the
southerly portion of that claim, but assumed that the decision of
the Secretary of May 7, 1898, operated to restore that tract to the
public domain as of that date, since he relocated it on May 13, and
on the following fifteenth of July filed an amended location. But
the filing of the latter certificate did not cure the defect
arising from the fact that the discovery shaft of the Scorpion was
upon ground covered by the Kohnyo's claim, and the filing of the
amended certificate could not perfect the Scorpion location in view
of the previous location of the Hobson's Choice, which created
intervening rights in favor of a third person.
The stipulation of facts was evidently prepared in respect of
the inquiry concerning the date at which the ground in controversy
reverted to and became a part of the public domain, and that
embraced the question whether that resulted from the decision of
the Secretary of May 7, 1898, or from
Page 201 U. S. 192
the filing by the Kohnyo claimant of its election to retain the
northerly tract and relinquish the other, June 14, 1898, or upon
the formal cancelation of the entry, July 15, 1898.
Nevertheless, it is further contended that the proceedings in
the Land Department between way 28, 1895, and May 7, 1898, did not
suspend the operation of the decision of the Commissioner of May
28, 1895, and since by that order the Kohnyo's applicant was
required to make its election within sixty days from that date, as
to which end of the claim it would retain and patent, in default of
which election the entry of the southerly portion became canceled,
and the Kohnyo's claimant did not make such election until June,
1898, that the entry became canceled as to the ground in
controversy at the expiration of sixty days from May 28, 1895, and
thereupon the tract reverted to the public domain. The Land
Department ruled otherwise. It treated the order of May 28, 1895,
as suspended during the intermediate period, while the proceedings
as to the knowledge of the placer claimant of the existence of the
Kohnyo lode were pending. Manifestly because, if it was known by
the placer applicant at the time of application for the patent that
the Kohnyo vein extended through the placer ground, then the vein
did not pass by the patent, and the Kohnyo's claimant might be
entitled to patent both ends of its claims, embracing the vein and
a strip through the placer location
And when, on July 15, 1898, the Department canceled the Kohnyo
entry as to the tract in controversy, it was declared that:
"In view of the fact that no motion for a review of the
departmental decision of May 7, 1898, affirming the decision of
this office of May 28, 1895, was filed within the time prescribed
by the rules of practice, the decision last mentioned became final,
and it now devolves upon this office to execute the same."
The election, then, by the Kohnyo claimant, filed in the land
office June 14, 1898, was an abandonment of the south 700 feet of
the Kohnyo claim, which took effect
eo instanti. Lindley
on Mines, §§ 642-644;
Derry v. Ross, 5 Colo.
Page 201 U. S. 193
295, 300. This was voluntarily done, and took effect
notwithstanding the receiver's receipt had not been formally
canceled. The order of cancelation of July 15 simply recorded a
preexisting fact, and did not change the effect of the previous
abandonment. By reason of that abandonment, the southerly tract,
for the first time, reverted to and became a part of the public
domain. And as the Hobson's Choice was the first location of the
ground made after such abandonment, it follows that it was valid,
and that its owner was entitled to a decision in its favor.
We again state the dates of the respective locations. The
Scorpion was located May 13, 1898. The Hobson's Choice was located
June 23, 1898. The location of the P. G. was July 16. Thus it is
seen that the Scorpion was attempted to be located at a time when
the premises were not subject to location; that the Hobson's Choice
was located when the premises had reverted to the public domain;
and that the location of the P. G. was after that date.
We have accepted the rulings of the Land Department that the
Kohnyo location covered the southerly as well as the northerly end
of that claim. Such was the decision of May 28, 1895, and that of
the Secretary of the Interior of May 7, 1898, and the formal
cancelation of July 15, 1898. In this separate distinct
proceedings, counsel cannot challenge these rulings. The attack is
collateral, and cannot be entertained.
Steel v. Smelting
Company, 106 U. S. 447;
Smelting Company v. Kemp, 104 U.
S. 636. True, those decisions refer to instances where
the patent had issued, but the principle of freedom from collateral
attack is equally applicable where final entry has been made. The
final certificate issued by the receiver after the submission of
final proof and payment of the purchase price, where such is
required, has been repeatedly held to be for many purposes the
equivalent of a patent. We are advised in argument that the patent
was issued, but it is objected that, though such may be the fact,
it is not so stated in the facts agreed.
The cancelation of the entry of the 700 feet did
Page 201 U. S. 194
not rest on any defect in the original location. On the
contrary, the Land Department held the proceedings sufficient to
entitle the Kohnyo's claimant to proceed to patent for this
particular tract if he should so elect. It was only when the Kohnyo
claimant abandoned that tract by making his election that he waived
his right to patent, it and permitted the receiver's receipt to be
canceled to that extent.
That cancelation did not itself operate to restore the southerly
tract to the public domain, which had already taken place by the
action of the Kohnyo claimant in compliance with the judgment of
the Land Department.
We concur in the conclusions of the Supreme Court of Colorado,
and the judgments are
Affirmed.
