#### JEFFERSON LIME COMPANY v. THE UNITED STATES.

[Congressional 14977.

Decided April 7, 1913.]

*On the Proofs.*

The claimants while prospecting for mineral in pursuance of their regular business discover an extensive cavern <5n the unsurveyed public domain in Montana. They open an entrance to the cavern, place a door there, and construct a stairway within it. Subsequently they apply for a patent to land which will include the cavern. The Northern Pacific Railroad Co. files *275a protest, claiming the land as embraced in sections granted to the company. The claimant’s application for a patent is rejected by the Secretary of the Interior. It brings an action against the railroad to quiet title, which is dismissed by the court. Subsequently the President withdraws the cavern from settlement and sets it aside under the act, 8th June, 1906. The Senate refers a bill for the relief of the claimant.

I.This court can not entertain a contention that another court and the Interior Department were in error, and that the party seeking a patent for land upon which he had entered would have obtained it but for the intervention of the President in withdrawing the land from settlement.

II.A party entering upon the public land with a view to future settlement must know that the title to the property is not in himself, and that expenditures of money on public lands in permanent improvements before title is acquired are at law entirely voluntary.

III.Where a bill in Congress is to reimburse a settler for all expenses incurred and services performed in all matters touching the discovery, exploration, and develpment of a cavern, and the evidence fails to show the amount of money expended, the court can not advise Congress as to what might be a reasonable appropriation. Such a claim is not a legal or equitable one. The claimants can appeal alone to the bounty of Congress.

*The Reporters’*statement of the case:

The following is the bill referred and the court’s finding of the facts:

“A bill for the relief of the Jefferson Lime Company.

*“Be it enacted by the Senate and Rouse of Representatives of the United States of America in Congress assembled,*That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay to the Jefferson Lime Company, a corporation of Butte, Montana, out of any money in the Treasury not otherwise appropriated, the sum of forty thousand dollars, being in reimbursement of and remuneration for all expenses incurred and services performed in all matters touching the discovery, exploration, and development of the cavern known as the Lewis and Clark Cavern National Monument, embracing lot twelve of section seventeen, township one north, range two west, Montana principal meridian, containing one hundred and sixty acres of land, which said cavern was set aside by proclamation of the *276President of the United States on May eleventh, nineteen hundred and eight, in conformity with an act of Congress approved June eighth, nineteen hundred and six, entitled ‘An act for the preservation of American antiquities.5 ”

The petition contained the following allegations:

“ The Jefferson Lime Co. is a corporation duly organized under the laws of the State of Montana.

“ In June, 1901, it was engaged in the production and sale of limestone rock from its property, known as the Riverside placer claim, in Jefferson County, Mont., when a party of its employees, under the direction of its general manager, at a point about 1 mile distant from this property, discovered on the steep mountain side an entrance to what proved to be an extraordinary limestone cavern on the then unsurveyed public domain of the United States. The company thereafter, at its sole cost and expense, made extensive explorations and investigations of this cavern by its employees, and expended large sums of money in constructing a new entrance thereto and in making its various chambers accessible by means of stairways and other work in the interior of the cavern.

“On July 6, 1905, the individuals representing the Jefferson Lime Co. applied for patent for the Jefferson placer mining claim to cover the area included in the cavern. Under date of July 10, 1906, the Secretary of the Interior declined to issue patent for this claim, because under the provisions of the act of February 26, 1895, this land had been classified as nonmineral, and hence it must be considered, because of such nonmineral classification, as included in the land granted to the Northern Pacific Railway Co. under the act of July 2, 1864.

“ Thereafter, in 1907, the company instituted a suit against the Northern Pacific Railway Co. in the district court of Jefferson County, Mont., for the purpose of quieting title to this particular land. The court held in this case that inasmuch as neither the Jefferson Lime Co. nor the Northern Pacific Railway Co. held a patent from the United States therefor it had no jurisdiction of the case,.which was dismissed without prejudice.

*277“ On May 11,1908, by presidential proclamation, under the provisions of the act of Congress approved June 8, 1906, entitled “An act for the preservation of American antiquities,” 160 acres of land containing this cavern were set aside as the Lewis and Clark Cavern National Monument on the then unsurveyed public land of the United States, which was afterwards found to be in lot 12 of section 17, township 1 north, range 2 west of the Montana principal meridian.

*“*On February 2, 1911, the Northern Pacific Kailway Co., although no patent had ever been issued to it for said land, quitclaimed and conveyed to the United States all the right, title, and interest it had or might have in the said land so set aside as the Lewis and Clark Cavern National Monument, which said deed, dated March 2, 1911, was formerly accepted by the United States.

“ During all the time since the discovery of this cavern the general public, under regulations made by the claimant for the protection of said cavern and without payment of any admission fee or other charge to claimant therefor, has had free access to said cavern and has enjoyed and continues to enjoy the same by means of the improvements and accessories made at the sole cost of this claimant.

“ The claimant has never received any compensation whatsoever from the United States Government or otherwise for the services rendered in connection with this cavern, nor has it ever been reimbursed for any of the expenses made by it in connection therewith, and it has not transferred or assigned the whole or any part of this claim or any interest therein.”

The court upon the evidence adduced, and after considering the briefs and arguments of counsel on each side, makes the following findings of fact:

I. Claimant, the Jefferson Lime Co., is a corporation duly organized and incorporated under the laws of the State of Montana.

II. In June, 1901, D. A. Morrison, then and continually since then employed as general manager for claimant company, and as such in charge of its work and property in *278Jefferson County, Mont., while prospecting for mineral for claimant in pursuance of its regular business, with several other employees of claimant, discovered a very extensive cavern on then unsurveyed public domain, afterwards and now located on lot 12, section 17, township 1 north, range 2 west of Montana meridian, the same being now known as the Lewis *&*Clark Cavern National Monument.

III. From 1905 to 1907 claimant explored a portion of said cavern; made a roadway from the Northern Pacific Eailroad to the base of the mountain in which said cavern is situated; opened an entrance to the cavern and placed a door there, and constructed a stairway within the cavern.

The evidence is not sufficient to prove the value of the services rendered nor the amount of money expended upon said work.

IV. On July 5, 1905, George B. Casey and others, composing the Jefferson Lime Co., applied for a patent to land, including the cavern, before the General Land Office, at Bozeman, Mont. The Northern Pacific Eailroad Co. filed a protest against the issuance of such patent to petitioners, claiming the land as embraced in the odd sections granted to the company under the act of July 2, 1864. In July, 1906, claimant’s application for a patent to said premises was rejected by the Secretary of the Interior.

On October 16, 1907, claimant commenced an action against the railroad company to quiet title to said premises, which action was dismissed by the district court for Jefferson County, Mont.

V. By reason of the very unusual and extraordinary character of this cavern from the scenic, scientific, and mineral points of view, as disclosed and demonstrated by means of the discovery of this petitioner, the President of the United States on May 11, 1908, issued the following proclamation:

“Whereas an extraordinary limestone cavern situated in Jefferson County, Montana, is of great scientific interest, and it appears that the public interest would be promoted by reserving the same with as much land as may be necessary for the proper protection thereof:

“ Now, therefore, I, Theodore Eoosevelt, President of the United States of America, by virtue of the power in me vested by section two of the act of Congress approved June *2798, 1906, entitled £An act for the preservation of American antiquities,’ do hereby set aside as the Lewis and Clark Cavern National Monument, subject to any valid existing rights, at, embracing, and surrounding the limestone cavern located upon unsurveyed land in township one north, range two west of Montana meridian, Montana, one mile more or less northeasterly from Limespur, a station and post office on the Northern Pacific Eailroad, Jefferson County, one hundred and sixty acres of land in square form with side lines running north and south and all sides equidistant from the main entrance to said cavern.

“ Warning is hereby expressly given to all persons not to appropriate, injure, or destroy any of the natural formations in the cavern hereby declared to be a national monument, nor to locate or settle upon any of the lands reserved and made a part of said monument by this proclamation.

“ In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed.

“ Done at the city of Washington this 11th day of May, in the year of our Lord one thousand nine hundred and eight, and of the Independence of the United States the one hundred and thirty-second.

“ [seat,.] “ Theodoee Roosevelt.

“ By the President:

“ Elihu Root, *Secretary of State.”*

VI. On the 2d of February, 1911, the Northern Pacific Railroad Co., by quitclaim deed, conveyed the premises in controversy to' the United States, which deed was formally accepted by the United States on March 2, 1911.

VII. It does not appear that the work done in the exploration and improvement of the cavern, as set forth in Finding III, was done at the request or with the knowledge of the Northern Pacific Railroad Co. or the United States.

*Mr. lice E. O. Pace*for the claimant. *Messrs. Serven <& Joyce*were on the brief. \

*Mr. WiTMam F. Norris*(with whom was *Mr. Assistant Attorney Genéral John Q. Thompson)*for the defendant.

Booth, J.,

delivered the opinion of the court:

The findings disclose an unusual state of facts, sor unusual that the court deems it wise to supplement them with written comments. The corporate name of the claimant company suggests its business, and while engaged therein accidentally *280discovers the unique cave now ¡mown as Lewis and Clark Cavern National Monument. Whatever the value of the cavern from a scientific and scenic standpoint may be, it is eliminated from the case; no claim is predicated thereon, for the whole amount claimed is for reimbursement of funds expended for specific purposes. However commendable it may be to carefully preserve and make accessible to the public a strange and unusually peculiar formation beneath the earth’s surface, it can not, under the circumstances presented in this case, become the basis of a claim either legal or equitable against the rightful owners of the property. From the findings it is apparent that at the time of the discovery of the cave the claimant company knew that the title to the property was not in it; that the money alleged to have been expended in building stairways, doors, etc., was so expended with full knowledge of this fact; that while there was a possibility of acquiring title under the public-land laws all sums expended in permanent improvements until said title was acquired were entirely voluntary. In 1905 the claimant company commenced proceedings to acquire title; in 1906 its application was rejected because of adverse ownership. In 1907 it instituted legal proceedings to test the title of the adverse owner, in which it was entirely unsuccessful, the final result being the taking over of the property by the Government under the act of June 8, 1906. In July, 1897, this very tract of land had been classified by the Interior Department as nonmineral, a most potent obstacle to claimant company’s first application for patent. All these facts constitute themselves such a formidable array of well-known and easily ascertainable difficulties in the way of claimant company at the time of the discovery that it is difficult to see upon what supposed hypothesis of subsequent reimbursement it voluntarily spent the sums now claimed. Why it did not defer incurring the total claimed expense of $40,000 until it was secure as to title is a matter of most pertinent inquiry. Treating the subject as a court must treat it, we can not entertain a contention that the courts and the Interior Department were in error, and that the claimant company might have obtained a patent but for the intervention of the President under the act of June 8, 1906, *281for it is apparent from the record that during the existence of these various controversies, and at the time litigation was pending respecting the title to the property, much, if not the greater part, of the sums claimed were expended. The claimant company doubtless expended some money as alleged in its petition, but from the competent evidence in the record it is, however, absolutely impossible to even venture an amount, and we can not advise Congress as to what might be a reasonable appropriation in the premises unless the record sustains the proposed suggestion. That the claim is not either a legal or equitable one against the Government is so obvious as to require no further elaboration. Claimant company, it is true, expended all the sums claimed with a view of possessing the property, but we can not hold because it was subsequently unable to do so, by reason of the intervention of others acting in strict accord with positive law, that a claim arises, either legal or equitable, against the defendants. The cavern as it exists is a distinct contribution to the world’s wonders. As a matter of special and general interest to the public it is undoubtedly a discovery of merit and consequence. From a scientific point of view it is valuable and instructive. These are subjects, however, with which the court as a proposition of law has nothing to do. Under the Tucker Act they appeal alone to the bounty of Congress.

The findings, together with a copy of this opinion, will be transmitted to Congress. It is so ordered.