1. Monuments prevail over courses and distances. P.
255 U. S.
162.
2. A patent which describes a lode mining claim by courses and
distances, but which also calls for monuments at the first two
corners, and refers to the other two turning points as "corner No.
3" and "corner No. 4," is subject to interpretation as calling for
monuments at all four corners, and opens the door to field notes
showing such
Page 255 U. S. 152
monuments and to parol evidence of their actual location on the
ground. Pp.
255 U. S. 159,
255 U. S.
162.
3. And such interpretation is greatly strengthened when the
patent, by its language, assumes identity of the claim as therein
described and patented with the lot as surveyed, platted, and
designated by the surveyor general, in view of his duty to see that
such lots are identified by monuments on the ground. P.
255 U. S.
161.
4. Under the mining law, an application to patent a lode claim
is for a claim marked by monuments; the posted and published notice
of application refers to a claim so marked, and such notice, as a
jurisdictional basis, will not sustain a patent for land outside
the monuments as against a senior location. P.
255 U. S.
161.
5. The rights of the respondent under its patent were fixed by
the register's final certificate. P.
255 U. S.
162.
6. The Act of April 28, 1904, amending Rev.Stats. § 2327, and
declaring that monuments shall prevail over inconsistent
descriptions in mining patents, merely made more explicit the
previous policy of the law.
Id.
230 F. 553 reversed.
Review of a decree of the circuit court of appeals which
reversed a decree of the district court dismissing a bill to
establish title to a body of ore as within the plaintiff's patented
mining claim and to obtain an account for ore extracted. The case
is stated in the opinion, p.
255 U. S.
159.
Page 255 U. S. 159
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill in equity brought by the respondent, the Conkling
Mining Company, in order to establish its right to a large body of
ore found under the southwesterly 135.5 feet of its patent as laid
out by courses and distances, and to obtain an account from the
petitioner, which has mined the ore, making a claim of right on its
side. The district court dismissed the bill. The decree was
reversed by the circuit court of appeals.
Conkling Mining Co.
v. Silver King Coalition Mines Co., 230 F. 553. Thereupon a
writ of certiorari was granted by this Court. 250 U.S. 655. A short
statement will be enough to present the single issue that it is
necessary to pass upon here. The only ground upon which the
Conkling Mining Company stands is that the ore is within the lines
of its patent extended vertically downward. If the patent, properly
construed does not cover the land in question, the case is at an
end.
The patent under which the Conkling Mining Company gets its
title was granted to the Boss Mining Company, and, so far as
material, is as follows: it recites that, in pursuance of the
Revised Statutes, etc., there have been deposited in the General
Land Office of the United States the plat and field notes of survey
and the Certificate No. 1697 of the Register of the local land
office, with other evidence whereby it appears that the grantee
duly entered and paid for that certain mining claim known as the
Conkling lode mining claim, designated by the Surveyor General as
Lot No. 689, "bounded, described, and platted as follows . . .
Beginning at corner No. 1 a pine post four inches square marked
U.S. 689 P. 1. Thence"
Page 255 U. S. 160
by courses and distances northwesterly "to corner No. 2, a pine
post four inches square marked U.S. 689 P. 2," these two corners
being undisputed.
"Thence second course, south sixty degrees and forty-five
minutes west one thousand five hundred feet to corner No. 3. Thence
third course, south twenty-one degrees and nine minutes east six
hundred feet to corner No. 4."
It then grants "the said mining premises hereinbefore described"
and all that portion of veins, lodes or ledges, "the tops or apexes
of which lie inside of the surface boundary lines of said granted
premises in said Lot No. 689," etc., with a proviso confining "the
right of possession to such outside parts of said veins," etc., "to
such portions thereof as lie between vertical planes drawn downward
through the end lines of said Lot No. 689," etc.
If "corner No. 3" and "corner No. 4" are determined by courses
and distances alone, the Conkling Mining Company is entitled to
prevail upon the question that we are discussing. The circuit court
of appeals was of opinion that the patent represented an
adjudication by the Land Department that the lot was 1,500 feet
long and 600 feet wide without regard to the location of the other
posts which the field notes showed to exist but the patent did not
mention. The district court, on the other hand, held that evidence
was admissible to show that there were monuments at corners No. 3
and No. 4, held that the monuments so established prevailed, and
therefore decided that the title of the Conkling Mining Company
failed.
The decree of the district court appears to us to be supported
by the face of the patent and by consideration of the
circumstances. If a draughtsman were determining his description by
courses and distances only, it seems unlikely that he would insert
"corner No. 3" and "corner No. 4" where the direction changed, as
it would add nothing to the change of direction in the boundary
line. The
Page 255 U. S. 161
words by themselves suggest a reference to an external object,
an interpretation greatly strengthened by the fact that the same
phrase in the first two instances of its use referred to one in
terms, and, coupled with evidence that such an external object was
found, the words at least tend to prove that a monument was meant.
Of course, evidence is admissible, if needed, to show that language
is to receive the interpretation that, taken by itself, it invites.
Furthermore, the grant is of "the said mining premises hereinbefore
described," assumed in the same sentence to be the lot designated
by the Surveyor General as Lot No. 689; and, when it is observed
that it is the duty of the Surveyor General to see that the lot is
identified by monuments on the ground, the presumption becomes
almost irresistible that "corner No. 3" and "corner No. 4" mean
corners determined as they are required to be determined by the
law.
One statutory foundation of a mining claim is that "the location
must be distinctly marked on the ground so that its boundaries can
be readily traced." Rev.Stats. § 2324. To obtain a patent, the
claimant must file in the proper land office along with his
application
"a plat and field notes of the claim . . . made by or under the
direction of the United States Surveyor General, showing accurately
the boundaries of the claim . . . which shall be distinctly marked
by monuments on the ground."
Waskey v. Hammer, 223 U. S. 85. He
also must file a certificate of the Surveyor General
"that the plat is correct, with such further description by such
reference to natural objects or permanent monuments as shall
identify the claim, and furnish an accurate description, to be
incorporated in the patent."
Rev.Stats. § 2325. It is the reference to natural objects or
monuments that is to be incorporated. Before the application is
filed, notice of it must be posted on the ground. The register
subsequently advertises the application in a newspaper,
Page 255 U. S. 162
etc., and if no adverse claim is made and the other conditions
are complied with, the patent is granted. The notice is
jurisdictional.
El Paso Brick Co. v. McKnight,
233 U. S. 250,
233 U. S. 259.
Obviously, therefore, a patent can convey only the claim as to
which notice has been given. A notice of an application for a
patent of land determined by monuments cannot give priority to a
junior location, such as was that of the Conkling Mining Company,
in respect of land outside the monuments, to which adjoining
claimants had no notice that the patent would purport to
extend.
The final receipt from the local land officer fixed the
claimant's rights.
El Paso Brick Co. v. McKnight,
233 U. S. 250,
233 U. S. 257.
The failure of the subsequent patent to the Boss Mining Company,
issued February 23, 1892, to describe the monuments at corners Nos.
3 and 4 was not an adjudication in favor of an inconsistent
description, but simply the following of a practice of abbreviating
by omission that had been adopted by the land office in 1891, and
which a few years later it was directed to discard. The Act of
April 28, 1904, c. 1796, 33 Stat. 545, amending Rev.Stats. § 2327,
making the monuments the highest authority to which inconsistent
descriptions must give way, simply made more explicit, or at most
carried a little farther, the previous policy of the law. We are
satisfied that evidence that the field notes, as the regulations of
the department required, showed marked posts at the third and
fourth corners was admissible, and that witnesses properly were
allowed to testify that they found posts upon the ground. The
district judge ,who saw and heard the witnesses, was satisfied that
they told the truth, and thereupon rightly determined that the
monuments so fixed controlled the courses and distances in the
instrument evidencing the grant.
See Resurrection Gold Mining
Co. v. Fortune Gold Mining Co., 129 F. 668;
Grand Central
Mining Co. v. Mammoth
Page 255 U. S. 163
Mining Co., 36 Utah 364, 378, 379;
Foss v.
Johnstone, 158 Cal. 119, 128;
McIver v.
Walker, 4 Wheat. 444,
17 U. S.
447-448;
Heath v. Wallace, 138 U.
S. 573. We see no sufficient reason for disturbing the
finding of the trial court upon the facts.
It may be that our decision will end this litigation. If not,
our decree is made without prejudice to such further questions as
may arise. We confine ourselves to the one here determined.
The petitioner, besides applying for the writ of certiorari,
took an appeal, for greater caution. It is immaterial to the
petitioner in which was the relief to which it is entitled is
obtained. The appeal will be dismissed.
Decree reversed.
Appeal dismissed.
THE CHIEF JUSTICE took no part in the decision of this case.