US SUPREME COURT DECISIONS

Where the necessary effect of the ruling of the state court is to deny to a locator of a mineral claim the protection of the relocation provision of 2324, Rev.Stat., if that section justified the claim based upon it, or if the record show that the trial court considered that the plaintiff specially claimed and was denied right under § 2326, Rev.Stat., authorizing an adverse of an application for a patent to mineral land, a federal question is involved and the motion to dismiss the writ of error will be denied.

Under § 2326, Rev.Stat., where there was a conflict of boundaries between a senior and junior location, and the senior location has been forfeited, the person who made the relocation of such forfeited claim has not the right in adverse proceedings to assail the junior locator in respect to the conflict area which had previously existed between that location and the abandoned or forfeited claim.

A senior locator possessed of paramount right in mineral lands may abandon such right and cause them to enure to the benefit of the applicant by failure to adverse, or after adverse, by failure to prosecute such adverse. The provision of § 2326, Rev.Stat., as construed in this case, so qualify §§ 2319 and 2324, Rev.Stat., as to prevent mineral land of the United States which have been the subject of conflicting locations from becoming quoad the claim of third parties unoccupied mineral land by the mere forfeiture of one of such location.

Quaere, whether a deputy mineral surveyor is prohibited by § 452 Rev.Stat. from making the location of a mining claim, not decided.

Uhlig and McKernan, two of the defendants in error, by locations alleged to have been made on January 1, 1889, asserted ownership of two adjacent mining lode claims, designated respectively as the Uhlig No. 1 and the Uhlig No. 2, situated in the West Mountain mining district, in Salt Lake County, State of Utah. In the month of August, 1898, the parties named filed in the proper land office an application for patent for said claims. During the publication of notice of the filing of the application, Giovanni Lavagnino, plaintiff in error, as the alleged owner of a mining lode claim called the Yes You Do, filed an adverse claim to a portion of the land embraced in each of the Uhlig locations, which it was asserted chanrobles.com-red

Page 198 U. S. 444

overlapped the Yes You Do. Thereupon, pursuant to the requirements of section 2326 of the Revised Statutes, this action was brought in a District Court of Salt Lake County, Utah, to determine in whom was vested the title and right of possession to the conflicting areas, which, in the case of the Uhlig No. 1, claim, amounted to 6.374 acres and in the No. 2 to 1.441 acres.

In substance, Lavagnino alleged in his complaint that, at the time of the location of the Uhlig claims, there was a subsisting valid location known as the Levi P. lode claim, which included within its areas the land in dispute in the action; that the necessary labor required by the statutes of the United States was performed upon the claim up to and including the year 1896; that no actual labor or improvements were made upon the claim for the year 1897, and, in consequence, all the land included within the Levi P. location became forfeited, and acquired the status of unoccupied and mineral lands of the United States, and that, while such was the status of the land, on January 1, 1898, one J. Fewson Smith, Jr., the grantor of Lavagnino, relocated the Levi P. claim as the Yes You Do, and that thereafter all the requirements necessary to be done had been performed, and the Yes You Do was then a valid and subsisting location.

Subsequently the St. Joe Mining Company was substituted in the stead of Uhlig as a party defendant.

On the trial, it was shown that, at the time Smith located the Yes You Do claim, he was a deputy mineral surveyor for the district in which such mining claim was situated, and that he made the survey and plat for the protest which had been filed in the land office against the Uhlig application for patent. On the offer, as evidence for the plaintiff, of the notice of location of the Yes You Do claim and the deed from Smith to Lavagnino, objection was made to their admission, and the offered evidence was excluded upon the ground that the asserted location by Smith of the Yes You Do was not valid, because, at the time of the making thereof, Smith was a deputy chanrobles.com-red

Page 198 U. S. 445

mineral surveyor, and was prohibited by the terms of section 452 of the Revised Statutes of the United States from making the location of a mining lode claim. For the same reason, the trial court sustained an objection to evidence offered on behalf of the plaintiff tending to show that, at the time the Uhlig claims were located, the ground covered by such locations was then covered by prior locations made at an earlier hour on the same day, and was consequently not subject to location as unoccupied mineral lands of the United States. That one of said locations -- the Levi P. -- embraced the premises in dispute, and was a subsisting location until forfeited by failure to perform the annual work for the year 1897; that the relocation of said claim as the Yes You Do was made on January 1, 1898, and that the annual work and other steps required by law to be done in connection with the claim had been performed.

Following the introduction of testimony tending to show the validity of the Uhlig locations, testimony was introduced on behalf of the plaintiff in respect to the location and working of the Levi P. claim, but, on the offer of the Levi P. location notice, the trial court sustained an objection thereto, and ruled that, as the Yes You Do was not a valid location, there were no adverse claims before the court, and as a result it was to be conclusively presumed that there did not exist any location which in anywise conflicted with the Uhlig claims sought to be patented.

The court made findings of fact in which, inter alia, it was recited that the plaintiff at the trial had not introduced any legal or competent evidence to sustain the issues on his part, and consequently that "upon the trial, on motion of counsel for defendants, the said action of the plaintiff against the defendant was, and is hereby, dismissed." The facts were then found in respect to the location and working of the Uhlig claims, and, as conclusions of law, the court held that the action against the defendants should be dismissed with costs, and that the defendant the St. Joe Mining Company, and the defendant Alexander McKernan, were entitled to purchase chanrobles.com-red

Page 198 U. S. 446

from the United States of America the said Uhlig claims and the whole thereof, and were also entitled to a decree quieting their title to the premises in dispute. From a decree entered in conformity to these conclusions, an appeal was prosecuted to the Supreme Court of Utah, and that court affirmed the decree. 26 Utah 1. A writ of error was thereupon sued out from this Court. chanrobles.com-red

Page 198 U. S. 448