# Heydenfeldt v. Daney Gold and Silver Mining Company

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United States Supreme Court
93 U.S. 634
Heydenfeldt v. Daney Gold and Silver Mining Company
ERROR to the Supreme Court of the State of Nevada.
This is an action of ejectment brought by Heydenfeldt in the District Court of the First Judicial District of Nevada, against the Daney Gold and Silver Mining Company. The case was tried by the court, which found the following facts:--On the fourteenth day of July, 1868, the State of Nevada issued to one William Webelhuth its patent for the west half of the south-west quarter of section 16, township 16 north, range 21 east (lying in Lyon County, State of Nevada), Mount Diablo base and meridian, containing eighty acres, according to the official plat of the survey of public lands as made by the United States surveyor-general for the district of Nevada; which said patent was recorded in the recorder's office of the county of Lyon on the twenty-fifth day of July, 1868, and was issued by the State authorities, under and by virtue of the statute of Nevada, conveying lands assumed to have been granted to the State by the act of Congress approved March 21, 1864, entitled 'An Act to enable the people of the Territory of Nevada to form a State government upon certain conditions.'
On the eighteenth day of August, 1873, William Webelhuth, by deed of conveyance duly signed, sealed, and acknowledged, conveyed the same premises to one Philip Kitz, which deed was recorded in the recorder's office of the county of Lyon Jan. 13, 1874.
On the ninth day of January, 1874, Philip Kitz, by deed duly signed, sealed, and acknowledged, conveyed the same premises to this plaintiff, which said deed was duly recorded in the recorder's office of the county of Lyon on the same day.
The defendant is in the possession of the premises. The plaintiff, prior to bringing this action, demanded the possession thereof, but the same was refused.
On the second day of March, 1874, the United States, by its proper authorities, granted to the defendant, by its patent, in due and regular form, lot No. 72, embracing a portion of section 16, in township 16 north of range 21 east, Mount Diablo meridian, in the Devil's Gate mining district, in the county of Lyon and State of Nevada, in the district of lands subject to sale at Carson City, embracing thirteen (13) acres and seventy-eight one hundredths (78/100) of an acre, more or less, with the exclusive right of possession and enjoyment of all the land included within the exterior lines of the survey of said premises not expressly excepted, and of two thousand linear feet of Mammoth Lode ledge, vein, or deposit for said two thousand feet therein throughout its entire depth, &c., which said grant by the patent covers and includes the lands and premises sought to be recovered by the plaintiff from the defendant in this action, and which said patent was so issued to the defendant under and by virtue of the act of Congress approved July 26, 1866, entitled 'An Act granting the right of way to ditch and canal owners over the public land, and for other purposes;' the act amendatory thereof, approved July 9, 1870, and the act approved May 10, 1872, entitled 'An Act to promote the development of the mining resources of the United States.'
The land in controversy is mineral land, containing precious metals, and the defendant is in possession and is conducting and carrying on the business of mining thereon, having in the prosecution of mining erected and constructed improvements of the value of over $80,000.
In 1867, and prior to the date of the survey or approval of the survey of section 16, township 16 north, range 21 east, by the United States, the defendant's grantors and predecessors in interest had entered upon the premises described by plaintiff in his complaint for mining purposes, and had claimed and occupied the same in conformity to the laws, customs, and usages of miners in the locality and mining district in which said premises are situated, and were so possessed and engaged in mining thereon when the said land was first surveyed, and when the State of Nevada issued its patent as aforesaid to William Webelhuth.
Thereupon, as conclusions of law, the court found,--
The act of Congress approved March 21, 1864, enabling the people of the Territory of Nevada to form a constitution, &c., under and by virtue of which act the State of Nevada selected the lands, and sold and conveyed the same to the predecessors in interest of the pliantiff, did not constitute a grant in praesenti, but an inchoate, incomplete grant until the premises were surveyed by the United States, and the survey properly approved.
Said survey and the approval thereof not having been made prior to the entry thereon and claim thereto by defendant's predecessors in interest for mining purposes, the same was not by said act of Congress, or in any other manner, ever granted by the United States to the State of Nevada.
The entry of defendant's grantors thereon for mining purposes, and their rights thereto having become established prior to the survey of said section by the United States, the said premises were not included within, and did not pas to the State of Nevada, by the granting clause contained in said act of Congress of March 21, 1864, but, on the contrary, were excluded therefrom by reason of their having been previously possessed and occupied by defendant's grantors for mining purposes, in conformity with the mining laws, rules, and customs of miners in the locality where the same was situated, and in conformity with the act of Congress approved July 26, 1866, granting the right of way to ditch and canal owners over the public lands, and for other purposes.
Thereupon judgment was rendered for the defendant. The Supreme Court of Nevada having affirmed it, the plaintiff sued out this writ of error.
Submitted on printed arguments by Mr. W. E. F. Deal for the plaintiff in error, and by Mr. C. E. De Long for the defendant in error.
MR. JUSTICE DAVIS delivered the opinion 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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