LAKIN V. DOLLY.
833
LAKIN
v. DOLLY.
SAME v. UOBERTS et at
(Circuit Court, N. D. California. March 23, 189L) Nos: 10,596, 10,630. 1. PUBLIC LANDS-PATENTS-VALIDITY.
A land patent from the goyernment of the UnIted States, issued with all the fOl'm8 of law, may be sho'9\'ll to be void by any extrinsic evidence which is callaule lif showing a want of authority for the isaue of the patent.
2. MINING CLAIM-PATENT-VALIDITY.
By tbe Tll'O\'j!o'iom; of Hey, SI.. t 2320, the land office has no pOWIll' to issue a patent to a n,ining claim extending more than 300 feet in width on e:lch side of the miclllleoJ:tlw l<:de. Such patent, if issued, is absolutely not merely voidable. as to sllch excess, and can be collaterally attacked in an action of ejectment; but one patent maJ" embrace two or more clliims on the same lode.. Smelting Co. v. Kemp, 104 U. S. 636, followed.
S.
LANDLORD AND TENANT-EsTOPPEL TO DENY TITLE.
In 1876, B. entered and claimed for agricultural and building purposes certain public lumls. tllim; his claim in the county records, but acquiring no title from the UnIte.d States. A patE:nt to a mining claim, including this land, had been previously applied for, and was subsequently granted, but was void as to the lands in question. In 1883 nominal rents of from one to five dollars were paid to the patentee by assignees of B.'s interest, and other persons, after 1&'XI, entered on similar land, with the perlllission of the patentee, or with the understanding that he did not object so long as his rights w"!re not interfered with. In IS89 one claiming under the patentee's title notified such occupants to pay rent, to purcbase the land, or to quit. Held, in an action of ejectment, that the occupants had acted under a mistake as to the law in regard to the patentee's title, and that there was 110 relation of landlord and tenant sutlicient to estop them from denying such title.
4.
SAME-",EvIDENCE-PAYMENT OF TAXES.
A mining company paid state and county taxes from 1878 to 1888 on certain lands covered by its but in respect to which the patent was void. After 1883 certain occupying claimants paid taxes on their improvements. Held, in an action of ejectment by the mining company against the Oc.cupyiDg claimants, that the payment of taxes was irrelevant and immaterial to establish title in either party.
At Law. Actions of ejectment by William H. Lakin against O. B. Dolly, (No. 10,596,) and against J. H. Roberts and others, (No. 10,630.) In cause No. 10,596 judgment was heretofore given for plaintiff. It is now resubmitted on an agreed statement of factB. Cause 10,630 is submitted on the same facts. Judgment for defendants in both cases. H. L. Gear, for plaintiff. Goodwin & Goodwin, for defendants. HAWLEY, District Judge. These cases are actions of ejectment. The Dolly case is submitted upon a stipulation"That defendant may move to set aside the judgment, and for a new trial of. the above-entitled action, without previous service of notice of intention, and witllOut showing of facts CO'lStitutiDg surprise or excusable neglect as a !,'round. of the motion; it bE'ing that if the facts hereinafter stipulated do, as matter of law, show a tight of the d"!fendant to defend the action saccessfully
33&
FEDERAL 'BEPOBTEB"
voL 53.
as against the plaintiff, under the pleadings, defendant is entitled to a new trial of sald action upon the and excusable neglect; and that, if such right so appears; 'the' s'ald' judgment may be set aside, upon condition of payment of the costs ofplalntil1 included in sald judgment; and that judgment then be rendered ,in favor of defendant for his costs; but that if said facts do ridt'show such rightiof successMdefense, as'matter of law, the motion of defendant is to be and the verdict and ju<1J;:ment in favor of plaintiff are to be and remai:Ji final,"
'1'he'Boberts case is Iilubmitted,by agreement of counsel, upon the agreed statement of facts filed in the Dolly case. From the agreed stateinent of facts and the various exhibits referred to, the following, among other facts, are made to appear, viz.: That holds the title t9 ,the premises in controversy that was the patent of the United States to the Mammoth Gold Mimpg,the lands, in controversy are mineral lands, the,Jamci$!,n quartz mining district,in Plumas the, the town, of Johnsville is situate. That the patent issued to the Mammoth Gold Mining Companyon the 18th day of, May, 1877, although it purports upon its face pursuance of the of the United States, to upon ,'Q,D. entry made by CompaJly'l\!arch 17, 1877, was applie(i forby,JohnB.;McGee an.doTa;rnes M. Thompson, under the law of 1866, on Augnst 30, 186(7. That the patent embraces two separate loca;t!()llS',and conveys 4;100 feet .of. 81 gold·bearing quartz lode, with 252.95 at: land. .rha.t ,the trend' or, tlle extension of the the, is That the lode as marked on,the patent, aswell'as located and fixed on the surface of thelandj is in ;astraightlinealollg the west er northwest boundary of said patented'tl-Mt, and is .tfjthin50' feet of said line. That the sur· face tract covered by the except said 50' foot{,;;is on the' east or t three of a mile southeast side of said lode, and e:¥:WJ;lds therefrom. That the written laws ,adopted in ;1851 by the miners of the. Jamison· <.IUltrtz mining district, governing the location of quartz claims therei.n, made for the locatiol\ of surface ground in connection'f\Wth the quartz J9,cation in excess of 100 feet on each side of the lode; nor was there a:qylaw, usage, or custom authorizing the location or occupancy of Illqre than 100 feet of surface ground on eaeh side' of . "Quarti mlnets. ot Jamison opened and. worlie<l mines on Eureka nio"lltaiu acttta).1y occupied such portion of public land' as they chose for the purpose of working their mines, the extent of such occupation not being 11 matter ot defined custom, but ofactual,posseE'sion; but · *; * there was nl} actual possession of the land on which the village of Johnsyille is situated, except the road leading across the same from the. Mammbth mine to the Mammoth mill and to Jamison City,"
-That, in l867,McGee and Thompsq:p. procured a of the ¥ammoth' 'claim and extension, and of the exterior b\>undaries of the sur· fMe ground, and had a diagrani made, and thereupon, on the 30th day of August, 1867, they posted on said MamlIioth claim the fol· lowing notice: ',' . . ,torr-he undersigned give notice that they infend to applyifor a patent for the vein or lode set forth in the above diagram,called the 'Mammoth
LAKIN ,,;nOLLY.
835
Cmlm/ situated in tbeJamison mining dtstnlJt, county of Plumas, Californi!l., 's,nd nIJw post this notice on a conspicuous part thereof.. '.'Pated on the grC'und this 30th day of August, 1867. "John B. McGee. "Jas. M. Thompson."
-That on the 7th day of September, 1867, they published in a local newspaper, for the .period of 90 days, the following notice, viz.: !'The undersigned give notice that they intend to' apply for a patent for the veiu or lode known as the 'Mammoth Quartz Claim,' situated in the Jamison mining district, county of Plumas, state of California, and now post this notice ()n a conspicuous part thl"reof: Commencing at an iron pin drilled into a ronk on the line dividing the Mammoth claim from the Eureka claim, and runthencp for the center of the vein northeast 4,100. feet, and including the land between the lode and Jamison creek for working purposes. "Dated on the ground this 30th day ofA.ugust, 1867. "John B. McGee. "James M. Thompson"
-That on the 17th day of June, 1876, one John F.Banks entered upon and clll.imed 20 acres of land upon which the town of Johnsville is now situate. and located the samefC)r building and agricultural pur· poses. That his claim thereto was recorded upon the records of Plumas county prior to the issuance of the patent to the Mammoth Company.. That by certain mesne COnveyances this tract of land has be. come vested in the defendants. That for more than 10 years last past the town of .Johrulville has been the center C)f trade and business of that section of country/with a population of over 200 persons, and laid off into streets;lots, and blocks. That no portion of this tract of land occupied by defendants is within 1,000 feet of the lode described in the patent. That said land has never been sectionized by the gov· .ernmen,t of the United States, nor in llny manner surveyed by the gov.er;nmeilt of the United States, other than by the survey made in the proceedings to obtain the patent to the Mammoth quartz lode under which plaintiff claims title. That in the summer of 1883, for the -first time, the Sierra Buttes Mining Oompany, from which company plain· tiff claims title, demanded of the citizens of Johnsville that they should pay nominal rent to the company for the land occupied by them as town lots. That the defendant Dolly, and several of the defendants in the Roberts case, paid from one to five dollars each, and no further payments of rent from them were ever demanded until the of 1889. That the other defendants in the Roberts case, who .entered upon the land subsequent to 1883, either obtained permission ·of said company, or entered the land with the understanding that the Sierra Buttes Gold Mining Company did not object to the occupying of the town lots as long as the enjoyment of its rights in the premo ises were not interfered with. That the lands embraced in the pat·ent were assessed for state and county purposes from 1878 to 1888 to the mining company, and it paid the taxes thereon. That after the. defendants in the respective actions were assessed for taxes on respective improvements on the land occupied by them, and the taxes so ass('ssed were paid by them. That in the spring of 1889 the 'plaintiff, Lakin, after he had acquired a judgment against the Sierra Buttes Gold Mining Oompany, enforcing a trust in the portion of the patented ground which includes the uremises in controversy, notified
836
J'EDERAL
vol. 53.
..the defendant Dolly and the defendants in the Roberts case that they must either pay rent. for the land occupied 'by them, purchase said land, or quit ,the premises and move their improvements therefrom withill: 30 ,days. That defendants neglected and refused to perform either of fOaid requirements, and remained in the possession of the premises. . , Upon the foregoing facts the contention of defendants is that under the provisions of sections. 2318, 2320, Rev.. St. U. s., the patent issued to the Mammoth Gold Mining, Company W, ,voiQ as to all that portion of "the t;!urfaee ·groulld on,1;P.e east or. southeast side of the quartz lode in excess, of feet from the center of the lode. The contention of the plaiD:tlff is that the land department had jurisdiction to pass upon the patent; that its action cannot be all questions of fact, anfl collaterally attacked in an action of ejectment. I luid occasion, in Rose v; Mining Co"17 Nev. 25, 27 Pac. Rep. 1105, (affirmed in 114 U. S. 576, 5 Sup. Ct. Rep. 1055,) and in the of Whitney v.Taylor, 45 616. to thoroughlyexawine question as to when, where, and un,der,what circUillstancesa patent could be deplared void, and to determiIul the extent of the power of land departIn:ent of the government. of 'the ,United States to passllP()n and decide jurisdictional facts. ,The question was referred to. discussed. by Mr. in Francoeur v. Newhouse, 40 Fed.. Rep. 623, and hasb.een freqUEmtly raised andpassed'upon in a variety of cases In the supreme court of the United States.. Polk's v. Wendal,.9 .Cranch, 87; New Orleans.Y. U.s., 662, 730, WHcoxv. Pet. 498, 509; StoddaT,'d v. Chambers, 2 How. 284,317; Easton v. Salisbury, 21 now. v. 6.Wall. 160; Best v. Polk, 18 Wall. 112,117; Leavenwortb,L. & G. R.Co.v. U. S., 92 U. S. 733;Newhall v. Sanger, Id. 761; 93 U. S. 209; Smelting Co. v. Kemp, 104 U. S. 636; Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ot. Rep. 389; RaHway Co. v. Dunmeyer, 113U. S. 629--642, 5 Sup. Ct. Rep. 566; Reynolds v. :Mining Co., 116 U. S. 687, 6 Sup. Ct. Rep. 601. The general principles bearing upon this subject are very clearly announced by Mr. Justice Miller in delivering the opinion of the court in Doolan v. Carr, 125 U. S. 624, 8 Sup. Ct. Rep. ail follows:
the.
"There is no question as to the principle that .Vhel, cue officers of the govm'Ilment have issued a patent In due form of law, "'Ilich on its face is sufficient to convey the title to the land described in it, such patent is to be treated as valid in actions at law as distinguished from suits in equity, subject. however, I1.t all times to the inquiry whether such officers had the la,"ful authority to. make a conveyance of the title. But If t.hose officers acted without authority, if the land which they purported to convey had never been within their control, or had been withdrawn from that control at the time they undertook to exercise such authority. then their act was vOi\l,-void for want of power in them to >lct on the subject-matter of the patent,-llot merely voidable; in which case, If the eircumstances jnstified such a decree, a direct Pl'()ccpding, with proper avp.rmcnts and evidence, would be required to establish that it was voidable, and should therefore be avoided. The distinction is c, mlluifest one, although the circumstances that euter into it are not always easily defined. It is,vevertheless, a clear distinction, established by law, and it has been often asserted in this court, that even a patent from the government of the United States, issued with all the forms of law, may be shown to be void by evidence, if it be such evidence as by its nature is capable ot showing a want of authority for its issue."
LAKIN fl. DOLLT.
837
In the light of the authorities, there can be no question 88 to the duty of this C01Jrt to investigate and determine whether or not defendants' contention is well founded. It is claimed by plaintiff that upon the facts of this case, and under the provision of section 2328, Rev. St. U. S., the patent must be considered and treated as having been issued under the act of congress of 1866. It is immaterial, so far as the result of this decision concerned, whether the patent is construed with reference to the act of 1866, or the subsequent provisions of the Revised Statutes, under and in pursuance of which the patent purports to have been iSSUed; but I am of the opinion that the question as to the validity of the patent depends upon the construction to be given to section 2320, Rev. St. U S. 'l'his section reads as follows: "Mlning clal.ms upon veins or lodes of quartz or other rock In place bearing deposits, heretofore gold, sUver, clnnabar, lead, tin, copper, or located, shall be governed as to length the vein or lode by the customs. regulations, and laws In force at the date of their location. A mining claim located atter the 10th day of May, eighteen hundred and seventy-two, whether located by one or more persons. may (;qual, but shall not exceed, one 11Iousand location of a mining five hundred feet In lengtI:; along the vein or lode; but cl..l im shall be made until the dtscovery of the vein or lode withln the llmits of the claim located. No claim shall extend more ,than three hundred feet on side.. of the middle of the vein at the surface, nor shall any claim bo limited by'. any mining regulations to less than twenty-five feet on each side of the middle .of the vein at the surface, except where'adveI'l!e rights' existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necessary.. The end lines of each claim shall be parallel to each other."
This entire section seems to be clear, definite, and certain. It provides that all mining claims upon quartz lodes located prior to its passage should be governed as to the length ,of the claim along the lode ''by the customs, regulations, and laws in force t\t the date of their location;" that the claims located after May 10, 1872, ''may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode." So far the section relates solely to the question of the length of the lode that may be located. It next takes up the question as to how much surface ground will be allowed to the locator of a quartz lode, and says that "no claim"--evidently meaning all claims, whether coming within the first clause, relating to claims located prior to the passage of this section, or within the second clause, relating to location made subsequent thereto--"shall extend more than three hundred feet on eaA:lh side of the middle of the vein at the surface." Having thus expressed the extent of the surface ground to which the locator may be entitled, it further provides that the amount of the surfaA:le ground shall not in any case be limited by any mining regulations to less than 25 feet on each side of the middle of the vein at the surface, except in certain contingencies, which have no application to the facts of this case. After the passage of thE: act of which this section forms a part, it seems very clear, to my mind, that the land department had no jurisdiction, power, or authority to issue a patent for a quartz lode to any surface ground exceeding 300 feet in width on each side of the middle of the vein or lode, and that any patent which is issued for more than that amount of surface v.53l<'.no.3-22
388
,.voL 53.
grOUll_M. null Mld void as to. the excess can attacked in a court of law. . The principles announced in Smelting Co. v. Kemp, 104 U. S.636,· in so .far as ·the same are applicable to these cases, fully support the conclusions I have reached. There, as here, the patent was regular upon its face. l'unless some limitation in the law, as to the extent of a mining clalln which can be patented, has been disregarded." In the course of an exhaustive and able opinion by Mr. Justice Field, quoting from Patterson v. Winn, 11 Wheat. 380, it is said that-
"If a patent WlJS tssued withoutll.uthority, or wasprobiblted by statute,
in that,··aase.rested upon the that a patent could not issue for a over. 160 acres." This· contention Wl;l.$,<MuglJ.t. to. be maintained .upon the theory ..that the applicant .forr,8r,pa.tent couldl:not. embody in his ap,Plicationany mining he had purchased from other locators. The court held that there was no valid reason, and nothing in the language of the actliot:corlgress, which prevented an individual from acquiring by purcha:se the· mining ground located by others, and adding it to his own. The views therein" expressed are conclusive as to the right of the appliMnttlfol' a. pateht to the Mammoth quartz lode to embrace in their8ijJplieation two or 'more separate locations owned by them Jlode. In Mining-Co. v. Kerr, 130 U. S. 261, 9 Sup. Ct. on the , Rep. 511, the' qUeStion was whether the patent issued ·for a quartz lode was 'Void because it embraced more than 200 feet in width 01 surface ground. The question thus raised was substantially the sanie as is' presented here,but the facts were different. There it was shown that ,the rules adopted on the 17th of May, 1870, by the miners . bfthe district where the lode was located, provided that "thesurlace width· of any mining location shall not exceed 100 feet in width on each side of the wall rocks of said lode;" but it also appeared that in anticipation of the act of congress of May 10, 1872, (section 2326, Rev. St:,) there was a meeting of miners held in said district on the 4th day of May, 1872, and the rules of the district were altered and amended so as to provide that "the snrface width shall be governed by laws of the United States of America;" and the court very properly held that, ill' view of this testimony, the land department had the right to determine which of these rules were in force. What the result of the opbJ.ion would have been if there had been no amelldrilent to the mining rules is made clear by the language of the court in its reference to the rules and regulations of the miners adopted in 1870 limiting the surlace ground to 200 feet. Upon this point the court said: correctnes$'·:()f .their i
LAKIN V.DOLLY.
839
"Bad that regulation remained in existence, and been in operation at the time the C1:ml milling claim was located, its effect upon the legality an,d validity of that location, at leaRt as to all the land In excess of two hundred feet, could not be doubted." 130 tJ. S. 261,9 Sup. Ct. Rep. 511.
In the cases under consideration, the surface' ground upon which the town ()f Johnsville is situated, embracing the lands claimed by defendants, was never possessed or located as a part of the Mammoth quartz lode, and there was no law of the United States at the time the application was made for a patent in 1867, or when the patent was issued in 1877, or any state law, or any local rule, regulation, or custom of· the miners in the Jamison mining district, which authorized or permitted any such location to be made. The patent, in so far as it includes any of said ground, was issuli)d Without 'any authority of law, and is therefore nun and void. 2. Does the agreed statement of facts establish such a t.enancy between the respective parties as to estop the defendants from denying the title of plaintiff to the lands in controversy? The general rule that a tenant cannot dispute his landlord's title is too well settled to requireany'discussion or citation of authorities. This rule, however, is subject to various exceptions and qualifications, equally as important and as well established as the rule itself. Among these exceptions are (1) where the tenant was induced to take a lease by mistake, fraud, or misrepresentation on the part of the lessor; (2) where both parties acted under a mutual mistake as to the law in regard to the title of the lessor; (3) where the tenant did not take possession of the property under the lease, but was in possession at the time he took his lease. Tewksbury v. Magraff, 33 Cal. 241; Franklin v. Merida, 35 Cal. 575; Shultz v. Elliott, 11 Humph. 187; Hammons v. McClure, 85 Tenn. 65, 2 S. W. Rep. 37; Miller v. McBrier, 14 Serg. & R. 382; Swift v. Dean, 11 Vt. 323; Carter v. Marshall, 72 m. 609; Bigelow, Estop. §§ 399.409,527; 2 Tayl. LandI. & Ten. § 707; Wood, Landl. & Ten. §§ 364, 374. The principles of law relating to these exceptions are elaborately stated, and the reasons given in support thereof are so clearly in the authorities cited, that I deem it unnecessary to discuss this branch of the case at any length. , The third ground above stated is the only one upon which there is any dissent. It would probably require in certain cases some qualification,and depend to a great extent, in all, upon the particular facts of each' case: hut upon the agreed statement of, facts the exceptions mentioned are directly applicable to this case, and, in my judgment, conclusive in favor of the right of defendants to show that the plaintiff did not acquire any title to the lands in controversy by virtue of the patent for the Mammoth quartz lode. It is cEjrta.inly clear that the parties have acted under a mistake as to thelawin regard to the title of plaintiff. Estoppels are said to be od,iotis in law, as they have a tendency to prevent a full, complete, and thorough investigation of the truth; and, in order to be operative in any case, ought to be certain to every intent, precise, clear, and un· equivocal, and not depend upon inference. The facts agreed to fall far short of f"stablishing the complete relation of la/ridlord and tenant, tQestop express or implied, so as to have the effect in
340
!'EDERAL: REFORTER ,vol.
53.'
the truth.. At.'thetime of thE! these were lji:posseSsion of the lands occupied by them under the possessory orl.ginally acquired by Banks, ltnd,althougb, they have no title from the government of the United States, they are in a position to show that they have a better right to the lands than plaintiff. 'If the defendants were simply in possession as mere naked trespassers,' without any question of tenancy being raised, they could, in defense of such possession, attack the validity of plaintiff's title; for it has been held by the supreme court of the United States that in cases of this character, as in all other cases of ejectment, the plaintiff must recover upon the strength of his own title, and not upon the weaJrn,ess of defendants. Reynolds v. Mining 00., 116 U. S. 688, 6 Sup. at. l,l.ep. 601; Doolan v. Carr, 125 U. S. 629, 8 Sup. Ct. Rep. 1228. The facts agreed upon with reference to the payment of taxes are irrelevant.andimmaterialras:they do not establish any title in either party.;, In pursuance of the stipulation and agreement of counsel, it follows from the conclusions reached, as to the law of the case, that in the case of Lakin v. Dolly the judgment heretofore entered in favor of theiplaintiff tnust be set aside, upon the payment by defenCfant of theoos1s of plaintiff inclwled in sald judgment, and judgnient, be entered.infavof of defendant for his costs ; and in Lakin v. Roberts et al. judgment must be entered in favor of· defendants for their costs. It iIJ so ordered. WIGHT et al. v. ROYALWS. CO. (Circuit Court, E. D. Pennsylvania. November'29,1892.) No. 49. FIRE INSURANOE-NoTICE OF CANCELLATION.
A fire insurance policy provided that the company coUld terminate the iWlIll'8nce,by giriug to the insured. or his representative," and refl1uQing a ratable proporti()n of the premium. Held, that the brokers who obtained the insurance were' not the insured's representatives to receive notice of cancellation. Gracev. Insurance Co., 3 Sup. Ct. H.ep. 207, 109 U. S. 278, followed.
At Law. Action by Wight & Lackey against the Royal Insurance Company to recover loss on a policy of fire insu:r,ance. On motion for judgment for want of.a sufficient affidavit of Rule absolute. . W. Willdlls Carr, for plaintiffs. Morton P. Henry, for defendant. Circuit . This is an action to enforce payment of loss undl'ir a policy of fire, insurance. The defense alleged by the affidavit is that the had been duly terminated 'before the loss occurred. . The policy contaiil$ a cltnceling clause as follows: ' "When, from any. cause, the company or its agents shall desire to terminate this insurance effected, it shall be lawful for the company or its agents so to do by notice to the insured 01' his representative, and to require this policy to be l."iven up for the purpose of being caneeled: provided, that in any such