#### THE NORTH AMERICAN TRANSPORTATION & TRADING COMPANY v. THE UNITED STATES.

[No. 29905.

Decided April 29, 1918.]

*On the Proofs.*

*Constitutional law; mining claim is property.*— A placer mining claim which has been perfected in accordance with law is property. When so perfected it has the effect of a grant by the United States of the right of present and exclusive possession, and if taken by the United States just compensation must be made therefor under the Constitution.

*425*The Reporter's*statement of the case:

*Mr. A. R. Serven*for the plaintiff. *Serven & Joyce*were on the briefs.

*Mr. Richard P.*Whiteley, with whom was *Mr. Assistant Attorney General Huston*Thompson, for the defendants.

Defendants contend:

First, that permanent possession of the land was taken by the military authorities under the right of eminent domain on July 1, 1900, and that the court is without jurisdiction because the claim is barred by the statute of limitations, petition not having been filed until December 7, 1906.

Second, that if the court has jurisdiction the title possessed by plaintiff was inchoate merely, and not secure until fee-simple title was obtained by patent.

Third, that the location had no intrinsic or speculative value as a mining claim either on July 1, 1900, or December 8, 1900, and that it had no value as ordinary real estate when taken by the military authorities.

An examination of the record will show that the land was taken under the right of eminent domain on July 1, 1900, and not on December 8,1900, when the Executive Order was issued. The general commanding the Department of Alaska, acting under the authority vested in him as the agent of the Secretary of War and the President, took possession of the land on or about July 1, 1900. That this possession was a permanent taking and not a temporary occupation is shown by the fact that buildings for the permanent post were immediately erected, and in his report of September 3, 1900, Gen. Randall states that barracks for the permanent post were then being built. This brings the case clearly within the principle laid down by the Supreme Court in the case of *Lynah*v. *United*States, 188 U. S. 445, in which it was held that all private property is subject to appropriation by the Government for public use under the right of eminent domain, and that where the Government appropriates property to which it asserts no claim of title it does so under an implied contract that it will pay the value of the property ap*426propriated and that the Court of Claims has jurisdiction to determine the value of such property and to render judgment against the United States for the same. The court said in part as follows:

“All private property is held subject to the necessities of the Government. The right of eminent domain underlies all such rights of property. The Government may take personal or real property whenever its necessities or the exigencies of the occasion demand. So the contention that the Government had a paramount right to appropriate this property may be conceded, but the Constitution in the fifth amendment guarantees that when this governmental right of appropriation- — this asserted paramount right — is exercised it shall be attended by compensation. * * * Therefore, following the settled law of this court, we hold that there has been a taking of the lands for public uses and that the Government is under an implied contract to make compensation therefor.”

In the case of *Johnson*v. *United*States, 4 C. Cls., 248, the question of the talcing of property by the United States for a military reservation was considered, and it was held that' even though the United States entered against the consent of the owner and held without having a right of property, it still holds rightfully under its right of eminent domain. That the holding being lawful, the question is upon what terms does the Government hold, which question the Constitution answers by the words “just compensation.”

■ Since, therefore, this was a permanent taking of land to which plaintiff had established possessory title, it amounts to a taking under the right of eminent domain, for which just compensation will be implied under the fifth amendment, and the right of action accrues from the time when actual possession of the land was taken by the proper authorities, which was on or about July 1, 1900. The petition was not filed until December 7, 1906, so that the claim is barred by the statute of limitations.

While it is true that possessory title is obtained by a valid location which is properly recorded and a sufficient amount of assessment work done, it is also true that such a title may be lost in many ways. Assessment work has to be done each year to the extent of $100; the discovery shaft has to be *427kept open; an official survey has to be made of the location; the preliminary plat and field notes and a final plat made; application for patent must be made and publication had, which gives any adverse claimant the opportunity to present his claims; and until patent issues nothing more than a quitclaim deed to the location is given.

As the Supreme Court has stated, a possessory title is a mere right of possession and enjoyment of profits without purchase, and upon conditions that may be defeated at any time by the failure of the party in possession to comply with the conditions. *Benson Mining Go.*v. *Alta Mining Go.*145 U. S. 428; *Morrison’s Mining*Rights, pp. 7-11, 540.

Hat, Judge,

reviewing the facts found to be established, delivered the opinion of the court:

The plaintiff brings this suit to recover the value of a mining claim taken from it by the defendants. On July 1, 1899, the plaintiff discovered and duly located a placer mining claim on the public domain of the United States near the Nome River and Bering Sea in the Territory of Alaska. It complied with all legal requirements in locating said claim and filed for record in the office of the recorder for the Cape Nome mining district the location notice, which was duly recorded in Volume XVI, page 63, of the official records of said recorder’s office. The said notice complied in all respects with the laws of the United States. Before the end of the year following the location of the aforesaid claim the plaintiff had erected thereon a tool and storage log cabin about 14 by 25 feet in size and had sunk six or seven prospect pits to a depth of from 7 to 9 feet about 100 feet apart on said claim and had sunk a timbered shaft 5 by 7 feet and 22 feet in depth. These pits and shaft disclosed a deposit of auri-ferous ruby sand and gravel and showed that the claim was well adapted for placer mining. The plaintiff also had placed around the exterior land boundaries of said claim a line of posts, all of which, including the cost of said cabin, amounted to an expenditure on the claim of $600. ■ This cabin was afterwards paid for by the United States. The plaintiff during the year 1899 and 1900 made application for a survey *428for patent to said placer claim, and also bad the claim surveyed by the United States deputy mineral surveyor.

About July 1, 1900, Gen. Randall, an officer of the Army of the United States, who at that time commanded the troops of the United States in Alaska, took possession of a tract of land, including the mining claim of the plaintiff, and announced that he intended to use the same as a site for an Army post. He was not then authorized to select any part of the public domain for that purpose, nor had the President of the United States reserved or set apart any of said tract of land for military purposes. However, he called upon the plaintiff to give possession of its said mining claim, and the plaintiff, not being able to withstand his authority, but at the same time demanding compensation for its said claim, gave up the possession thereof to said officer. Gen. Randall then recommended to the Secretary of War that said tract of land should be used as a site for an Army post, and on December 8, 1900, the President of the United States issued an order reserving from sale and setting aside for military purposes the tract of land in which was included the mining claim of the plaintiff. The petition in this case was filed on the 7th day of December, 1906.

The tract of land so taken by the United States, in which tract was included the mining claim of the plaintiff, has been occupied by the defendants and used by them as an Army post ever since the order of the President was issued, and the buildings erected on said land are located on that portion of the land whereon is located the mining claim of the plaintiff. And by reason of the taking of this land by the defendants the plaintiff has been unable to operate its claim or to do any further mining work thereon.

The facts above recited show that the plaintiff had acquired a right to this placer claim by fully complying with the law, and that the United States had notice of the claim of the plaintiff when the land on which it was located was taken by the defendants for military purposes. A mining claim which has been perfected in accordance with law is property, and when perfected it has the effect of a grant by the United States of the right of present and exclusive possession. *Belk*v. Meagher, 104 U. S., 279, 283.

*429Where there is a valid location of a mining claim, the area becomes segregated from the public domain and the property of the locator. *St. Louis Mining Co.*v. *Montana Mining*Co., 171 U. S., 650, 655. In the case of *Gwillim*v. Donnellan, 115 U. S., 45, 49, the court says: “A valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located.” And the locator, in the opinion of the court, will be entitled to possession against the United States as well as against any other defendant.

The title to the land which was set apart for military purposes was in the United States, but the mining claim of the plaintiff which it had perfected under the provisions of the statutes of the United States was its property, and if taken from it by the United States it is entitled to just compensation therefor under the Fifth Amendment of the Constitution.

It is always more or less difficult to determine the value of mining property. In this case the evidence is conflicting and witnesses in the case differ widely as to the value of the mining claim of the plaintiff. One witness puts its value at $300,000, while another witness says it has no value at all. But that the claim has some value may, we think, be deduced from all the evidence in the case. There is, of course, in it an element of speculation, but situated as it was in a country where claims of this character were constant subjects of barter and sale and where similar claims had yielded large fortunes to their discoverers, it may well be said that if the claim had been exploited it would have been one of considerable if not of great value. At best, evidence of its value is largely a matter of opinion, and taking into account the opportunities of the witnesses to form intelligent judgments who have testified in this case, we are of the opinion that the value of the plaintiff’s claim when it was takert by the defendants was $23,800, and judgment will be entered for that amount in favor of the plaintiff. It is so ordered.

Downey, *Judge;*Barney, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.