# Davis v. Wiebbold

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United States Supreme Court
139 U.S. 507
Davis v. Wiebbold
The following is the granting clause of the patent, with the conditions and stipulations annexed: 'Now, know ye, that the United States of America, in consideration of the premises and in conformity with the said Revised Statutes of the United States, have given and granted, and by these presents do give and grant, unto the said Heinrich C. Wiebbold, and to his heirs and assigns, the said mining premises hereinbefore described as lot No. 65, embracing a portion of township three (3) north of range eight (8) west of the principal meridian, with the exclusive right of possession and enjoyment of all the land included within the exterior lines of said survey not herein expressly excepted from these presents, and of fourteen hundred and sixty (1,460) linear feet in the said Gold Hill vein, lode, ledge, or deposit, for the length hereinbefore described, throughout its entire depth, although it may enter the land adjoining, and also all other veins, lodes, ledges, or deposits throughout their entire depth, the tops or apexes of which lie inside the exterior lines of said survey at the surface, extended downward vertically, although such veins, lodes, ledges, or deposits in their downward course may so far depart from a perpendicular as to extend outside the vertical side lines of said survey: provided, that the right of possession hereby granted to such outside parts of said veins, lodes, ledges, or deposits shall be confined to such portions thereof as lie between vertical planes drawn downward through the end lines of said survey at the surface, so continued in their own direction that such vertical planes will intersect such exterior parts of said veins, lodes, ledges, or deposits; excepting and excluding, however, from these presents all town property rights upon the surface, and there are expressly excepted and excluded from the same all houses, buildings, structures, lots, blocks, streets, alleys, or other municipal improvements on the surface of the above-described premises not belonging to the grantee herein, and all rights necessary or proper to the occupation, possession, and enjoyment of the same: and provided further, that nothing in this conveyance shall authorize the grantee herein, his heirs or assigns, to enter upon the surface of a mining claim owned or possessed by another; to have and to hold said mining premises, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, unto said Heinrich C. Wiebbold, and to his heirs and assigns forever, subject, nevertheless, to the following conditions and stipulations: First. That the grant hereby made is restricted to the land hereinbefore described as lot No. 65, with fourteen hundred and sixty (1,460) linear feet of the Gold Hill, throughout its entire depth as aforesaid, together with all other veins, lodes, ledges, or deposits throughout their entire depth as aforesaid, the tops or apexes of which lie inside the exterior lines of said survey. Second the surface, may be entered by the proprietor of any other vein, lode, ledge, or deposit, the top or apex of which lies outside the exterior limits of said survey, should the same in its downward course be found to penetrate, intersect, extend into, or underlie the premises hereby granted, for the purpose of extracting and removing the ore from such other vein, lode, ledge, or deposit. Third Th at the premises hereby conveyed shall be held subject to any vested and accrued waterrights for mining, agricultural, manufacturing, or other purposes, rights to ditches and reservoirs used in connection with such water-rights as may be recognized and acknowledged by the local laws, customs, and decisions of courts. Fourth. That in the absence of necessary legislation by congress the legislature of Montana may provide rules for working the mining claim or premises hereby granted, involving easements, drainage, and other necessary means to its complete development. In testimony whereof, I, Rutherford B. Hayes, president of the United States of America, have caused these letters to be made patent, and the seal of the general land-office to be hereto affixed. Given under my hand, at the city of Washington, the fifteenth day of January, in the year of our Lord one thousand eight hundred and eighty, independence of the United States the one hundred and fourth. By the President: R. B. HAYES. By WM. H. COOK, Secretary. S. W. CLARK, Recorder of Gen. Land-Office.'
To the introduction of this patent the defendant objected, on the ground that the exception contained in it excluded all town lots from the grant, and that it was necessary for the plaintiff to show that the property in controversy did not consist of lots thus excepted. But the court overruled the objection, and allowed the patent to be introduced; and to the ruling the defendant excepted.
The defendant, to maintain the issue on his part, introduced a patent of the United States, bearing date September 26, 1877, issued to Orville B. O'Bannon, probate judge of Deer Lodge county, Montana territory, in trust for the use and benefit of the occupants of the town-site of Butte in that county. It recites that the probate judge, by virtue of the act of congress of March 2, 1867, entitled 'An act for the relief of the inhabitants of cities and towns upon the public lands,' had deposited in the general land-office of the United States a certificate of the register of the land-office at Helena, Montana territory, whereby it appeared that full payment had been made by the probate judge in trust as aforesaid, according to the provisions of the act of congress of April 24, 1820, entitled 'An act making further, provisions for the sale of public lands,' for the tract of land constituting the town-site of Butte, embracing one hundred and eighty-three acres and a fraction of an acre, and of which a full description is given by metes and bounds. The following is its granting clause: 'Now, know ye, that the United States of America, in consideration of the premises and in conformity with the several acts of congress in such case made and provided, have given and granted, and by these presents do give and grant, unto the said Orville B. O'Bannon, probate judge as aforesaid, in trust as aforesaid, and to his successors, the said tract above described; to have and to hold the same, together with all the rights, privileges, immunities, and appurtenances of whatsoever nature thereunto belonging, unto the said Orville B. O'Bannon, probate judge as aforesaid, in trust as aforesaid, and to his successors and assigns, in trust as aforesaid. No title shall be hereby acquired to any mine of gold, silver, of cinnabar or copper, or to any valid mining claim or possession held under existing laws of congress. In testimony whereof, I, Rutherford B. Hayes, president of the United States of America, have caused these letters to be made patent, and the seal of the general land-office to be hereunto affixed. Given under my hand, at the city of Washington, the twenty-sixth day of September, in the year of our Lord one thousand eight hundred and seventy-seven, and of the independence of the United States the one hundred and second. [Seal.] By the President: R. B. HAYES. By B. LANG, Secretary. S. W. CLARK, Recorder of General Land-Office.'
The defendant also introduced a deed for the probate judge to himself, dated March 24, 1877, of the lots claied by him in his answer. This deed recites that the site of the town of Butte had been duly entered by the probate judge, pursuant to the act of congress; that a portion of the lots in such town-site were regularly pre-empted and conveyed by the probate judge to the parties entitled thereto; that there remained a portion of the town lots unclaimed after the expiration of 60 days; that in pursuance of the act of the legislature of Montana territory relating to the pre-emption of town-sites, and the disposal of lots therein, the probate judge had given notice more than 10 days that he would sell, on a day designated, at public sale, certain of the lots remaining unclaimed; that in pursuance of the notice the property described in the deed was, on the 12th of March, 1877, offered for public sale, and no bid having been received therefor, and the property offered being thereby rendered subject to private entry, the party of the second part, the defendant herein, had filed with the probate judge an application to enter the same; and therefore, in consideration thereof, and the sum of $220 paid, the probate judge, by virtue of the authority vested in him by the acts of congress and the legislature of Montana, thereby remised, released, and quitclaimed unto the said party of the second part the property described in his answer, with the exception of three lots, to have and to hold the premises, together with all the rights, privileges, and appurtenances thereunto belonging, to himself and to his heirs and assigns, as fully as by virtue of the acts of congress and of the legislature of Montana, and the proceedings thereunder, the said party of the first part could convey the same. The defendant then offered himself as a witness to prove that, for the five years preceding the commencement of the action, he had been in the exclusive possession of the premises, with the exception of three lots, as set forth in his answer, under the patent to the probate judge, and the latter's deed to him, under a claim of title exclusive of other rights, founding his claim upon those conveyances; but the plaintiff objected that the patent to the Gold Hill lode was issued June 5, 1880, and the action was commenced on the 8th day of August, 1884, showing that five years had not elapsed between the issuing of the patent and the commencement of the action, which objection the court sustained, and to the ruling an exception was taken. The defendant also offered to prove by sundry witnesses that at the time the patent of the Butte town-site to the probate judge was issued in trust for its occupants the premises embraced by the Gold Hill lode were not known to be valuable for minerals of any kind. To this evidence objection was taken, on the ground that the patent to the plaintiff proved that the premises contained valuable minerals, and as such could not be granted by the patent for the town-site, which objection the court sustained, and to the ruling an exception was taken. Evidence was also introduced by both parties as to the value of the rents and profits of the property. No other evidence was given or offered than as above stated. The court gave judgment that the plaintiff recover possession of certain portions of the premises claimed, which portions are designated by lots in block 13 of Butte City, and that a writ of restitution issue therefor; and also that the plaintiff recover $900 as damages for the detention of the property. On appeal to the supreme court of the territory the judgment was affirmed, and to review this latter judgment the case is brought to this court by appeal, the statute providing that mode of bringing up the case for review here instead of by a writ of error. Pending this appeal the appellant died, and the case was, by order of the court, continued in the name of his special administrator, James A. Talbott.
J. W. Forbis, for appellant.
S. M. Stockslager, for appellee.
Mr. Justice FIELD, after stating the facts as above, delivered the opiion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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