SILVER KING COALITION MINES CO. v. CONKLING MINING CO. (two cases).

255 U.S. 151 (41 S.Ct. 310, 65 L.Ed. 561)

SILVER KING COALITION MINES CO. v. CONKLING MINING CO. (two cases).

Nos. 158, 187.

Argued: Jan. 19, 1921.

Decided: Feb. 28, 1921.

Messrs. Thomas Marioneaux, of Salt Lake City, Utah, Curtis H. Lindley, of San Francisco, Cal., W. H. Dickson and A. C. Ellis, Jr., both of Salt Lake City, Utah, and W. C. Prentiss, of Washington, D. C., for petitioner and appellant.

Argument of Counsel from page 152-153 intentionally omitted

Messrs. F. B. Critchlow and Wm. W. Ray, both of Salt Lake City, Utah, for respondent and appellee.

Argument of Counsel from pages 153-159 intentionally omitted

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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 Fed. 553, 144 C. C. A. 607. Thereupon a writ of certiorari was granted by this Court. 250 U. S. 655, 40 Sup. Ct. 13, 63 L. Ed. 1192. 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' 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 1500 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 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. Sts. § 2324 (Comp. St. § 4620). 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, 92, 32 Sup. Ct. 187, 56 L. Ed. 359. 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. Sts. § 2325 (Comp. St. § 4622). 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, 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, 259, 34 Sup. Ct. 498, 58 L. Ed. 943, L. R. A. 1915A, 1113. 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, 257, 34 Sup. Ct. 498, 58 L. Ed. 943, L. R. A. 1915A, 1113. 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. Sts. § 2327 (Comp. St. § 4626), 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 Min. Co. v. Fortune Gold Min. Co., 129 Fed. 668, 64 C. C. A. 180; Grand Central Mining Co. v. Mammoth MINING CO., 36 UTAH, 364, 378, 379, 104 Pac. 573, Ann. CAS. 1912a, 254; foss v. Johnstone, 158 Cal. 119, 128, 110 Pac. 294; McIver v. Walker, 4 Wheat. 444, 447, 448, 4 L. Ed. 611; Heath v. Wallace, 138 U. S. 573, 11 Sup. Ct. 380, 34 L. Ed. 1063. 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.

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