Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1882-03-25

I ~ ~
upon Congressman upon the Courts. But we
are OF opinion that such is not the meaning, oo-
iect or intent of the law. and that such a con-
struction il not warranted either oy tue letter
or the spirit Of the statute. The most
that could possibly be claimed against the
validity Of the Uncle Sam location would
be that it was voidsble to the extent OF the ex-
cess of two hundred feet, and the owners or
the claim could determine from which end, or
ends, this excess should be taken. Nothing
more than this result would follow from the
reasoning of Beatty, j., In the Golden Fleece
v. Cable Con, supra, where an alien JOINS IN
making a location, or from the viewsexpressed
by the Supreme Court OF Idaho IN ATKINS v.
Hendree. where 1t was claimed that the ioca-
tors had purposely Included q greater number
of feet than the law allowed, and the Court
said that call the Seneht that q subsequent To-
Gator can claim is that he shall be entitled to
maintain his right to the excess q ldaholl2)
There is not any principle decided or reason
given in either of these decisions Inconsistent
with the construction contendedf Tor by appel
lants that the statute intented to give two hun
bred feet to the discoverer of the lode within the
limits of his claim, and we are NOT prepared 10
say that such q construction is not warranted
by the language of the statute. But under the
existing facts of this case 1t is only necessary
to decide that the Uncle Sam location is not
entirely void that if voidable at all 1t is only
as TO the excess of the discovery interest.
8. Is the st. George patent void? The pro-
visions of the Act of Congress to which we
have already referred and upon which this and
| Otner questions, TO De hereinafter uloCusseu,
must be determined read as follows: Where
an adverse claim is filed during the period of
publication, 1t shall be upon oath OF the per.
son or persons making the same, and shall
show the nature, boundaries and extento OF such
adverse claim. and all proceedings except the
publication OF notice and making ana ming
of the AFFIDAVIT thereof, shall be stayed until
the controversy shall have been settled or De
cided By q Court of competent jurisdiction,
or the adverse claim waived. 1t shall be the
duty of the adverse claimant. within thirty
days after filing his claim, TO pro-
ceedings in a Court of competent jurisdiction,
to determine the question Of the right OF pos
session, and prosecute the same with reasons-
BILE diligence to final judgment: and a failure
to do SO shall be a waiver Of his adverse
claim. After such judgment shall have been
rendered, the party entitled to the possession
of the claim, or any portion thereof. may,
without giving further notice, file a certified
copy of the judgment roll with the Register Of
the Land Office, together with the certhcate OF
the Surveyor General that the requisite
smount of labor has been expended or i'm
provements made thereon, and the description
required in other cases, and shall pay to the
Receiver five dollars per acre for his claim,
together with the proper fees. whereupon the
whole proceedings and the judgment roll shall
be certified by the Register to the Commis-
sioner of the General Land Office, and a patent
shall Issue thereon for the claim or such por-
ton thereof as the applicant shall appear,
from the decision of the Court, TO rightly pos
sess.-(Rev. Stat. U. g., Sec. 1896
The language Of this statute is clear, plain
snd explicit.
When a patent is issued in pursuance of its
provisions 1t would furnish the highest and
best evidence of title which q party could OBJ
tain. In such a case, as was said by Field, j
in the Eureka case a Saw. 319l, ga patent of
the United States for land, whether agricul-
tural or mineral, is something upon which its
holder can rely for peace and security in his
possessi seas. In its potency it is ironclsd
against all mere speculative differences"
l Rpf ~ ia HpTyal1V &c nlpar md az Wa1 sHfflad
that if the statute hiss not been compiled with
and a patent is issued without authority of
law. no substantial title is acquired.
The position taken by respondent that the
officers of the Land Department of the Gov
ernment had jurisdiction to declare the ad-
verse claim of appellants waived, by n failure
on their part to prosecute this suit with rea-
sonAble diligence. cannot be sustained.
When this suit was commenced the Dis
trict Court acquired jurisdiction to try every
question involved in the case, including the
question of diligence in its prosecution. Con-
gress did not intend that the Land Department
should take any action until the controversy
was finally determined in the State Courts.
The Department is not authorized to interfere
with the proceedings in the Courts. The
statute declares the steps that must be taken,
and by following its directions no conflict of
authority can ever arise between the Land De-
partment and the Courts. By departing from
them, endless confusion and expensive and
unnecessary litigation will be bound to follow.
Secretary of the Interior Schurz. in oyerrul-
ing the decision of the Commissioner of the
Land Office, in the Iowa Mining Company V.
Bonanza Mining Company, gave a clear expo
sition Of the Act of Congress. He said: This
stature provides, in plain terms, that a failure
on the part of an adverse claimant to prosecute
his suit to judgment with reasonable diligence,
shall be q waiver of his claim; but 1t does not
provide, either in terms or by necessary i'm
plication, that you shall decide what con-
stitutes reasonable diligence while suit is
pending in Court. There can be no question
| ITtf that fhE H.Aa NAnrf n Navajo has n
quired jurisdiction over this cause, and ii is
equally clear that the object of the law was to
require parties claiming an adverse interest in
land included in an application for patent to
try the right of possession, and have the con-
troversy determined by the State Courts be-
fore q patent was issued. Where a Court has
jurisdiction it has q right to decide every ques-
ton which occurs In the cause" Elliott V.
Piersal, l Pet. 340l. The question OF diligence
in the prosecution of a pending suit as as much
a question for the determination of the Court
as any other question of law or fact which
may arise in the progress of the case, and one
which, after the Court has acquired iurisdic-
tion, should be left for its determination. l
do not think it was the intention Of Congress
that you shesld decide what constitutes reason.
able diligence in the prosecution of a suit
pending in a Court of competent jurisdiction,
for such a proceeding would necessarily inter
fere with matters which the Court alone
should determine. Under such q practice 1t
might occur in which you would hold that
reasonable diligence bad not been exercised.
and issue a patent. while the Court might hold
otherwise and give judgment for the adverse
claimant, and the result would be a conflict of
authority. and a confusion of titles. = =
l am of the opinion that the proper practice
in cases Of this character is for the defendant,
If in his opinion the suit is not prosecuted
with reasonable diligence, to move the Court
to dismiss the case for want of prosecution,
and, if the motion is granted, cause the judg-
ment to be certified to your Office. when q
patent can be issued without conflict with
41a s,,rfcI,of5An of fha Oor,rfa ~ tha riuhfa Of
the parties in interest" tSickel's Mining Laws,
300; Cops Mineral Lands, 2l9.)
Equally plain and explicit is the opinion of
Secretary Chandler, in City Rock V. King of
the West; 1.-The plain meaning of this sec
ton is that all contests which may arise in the
disposal of the mineral lands shall
be tried and determined, if tried at all,
in a Court of competent jurisdiction: that the
adjudication and determination Of that Court
shall be final, and a patent for the tract In con-
troversy shall issue to the successful party or
parties, upon showing further compliance
Herewith" After stating the objections raised
| by the protest he adds: both of these objec-
tions 80 to the merits of the case, and not. to
the form of the claim. 1t is unquestionaoly
your duty. as well as mine, when an adverse
| claim is presented for consideration, to exam
inc it and determine whether the claimant has
substantially set forth, under oath, its nature,
boundaries and extent; but If a compliance
with the law is shown in these particulars,
| and q suit has been instituted to determine the
rights of the parties, l am of the opinion that
we can proceed no further with the investiga-
tlon. II is the duty Of the Court in which the
suit is pending to determine all ether ques-
lions relating to the controversy" (Stekels
Mining Laws, 2s6: Cops Mineral Lands. 2i9)
The facts of this case, as well as the deci-
sions of the Secretaries of the Interior, shSw
the expediency, wisdom and propriety Of Con-
gress making provision, as it did. to have this
Question, and all others arising in the action.
to be settled and determined in the State
Courts. The certificate issued by the Clerk
" TO the effect that this action had not been
| placed uyon the calendar, nor had any pro-
ceedings been had therein from the March
| term, 1874" was true upon its face but this
fset. without showing the cause Of the delay,
conveyed to the officers of the land department.
an absolutely false impression and induced
them, in an ex parte proceeding, y decide that
| tha utaiptfffs had not prOaRcuted the suit with