Show y X a f I 1 je latent rights kights of an apparent trespasser X BY G LAVAGNINO f 3 in the mining review of august appears an article entitled an important supreme court decision written by J B graham formerly of the bingham bulletin which reappeared in that paper issued on the he refers to a decision rendered last may by the supreme court of the united states upon an adverse claim proceeding based on the ownership of the yes you do lode claim covering portions of ground including the discovery points embraced in the locations no 1 and no 2 as applied for patent in 1898 the decision is a very important one added to the maze of our mining laws inasmuch as it seems to establish what is generally considered as new doctrine in the interpretation of section 2325 of the revised statutes of the united states contrary to the reasoning of the supreme court of the united states in the belk vs meagher case and contrary to the axioms of law and of common sense as well viz that a good legal title cannot be initiated by an illegal act or wrong doing to wit by trespass under this decision the rights of relocation granted by section 2324 of the revised statutes of the united states do not exist that is to say whenever the annual assessment work is not done upon a senior location the junior location of the identical ground by virtue of some kind of latent right becomes ipso facto valid provided the junior locator has done the assessment work for that year and then the ground is not open to relocation as it was heretofore generally supposed to be the effect of the decision will probably be to 0 encourage and place a premium on what has heretofore been generally regarded in the light of a trespass As far as mr grahams article pretends to be an account of this litigation and comment on the decision it is incorrect and misleading in at least two points to wit 1 the supreme court of the united states did not sustain the views of the lower court and of the supreme court of utah concerning the validity of a location made by a so called deputy united states mineral surveyor but on the contrary to the great surprise of all the parties interested in the issue declined to render its decision upon this point 2 the supreme court of the united states did not sustain the supreme court ot of the state of utah in its unwarranted application of the statute of limitations to the case it expressly overruled it when it denied the motion to dismiss based upon that part of the decision of the state supreme court in the lower court two cases were tried practically together the yes you do vs no I 1 and no 2 and the yes you do vs mute no 1 I the second being in substance identical with the first except that the mute location was about one year younger than the nos 1 and 2 and the supreme court of utah could not have found any prescriptive right as mute the contention was th that at the three locations no 1 and 2 and the mute no 1 were null and void ab initio inirio as their alleged discoveries were upon ground a already located by two valid locations upon which assessment work was done for many years and of which the yes you do became a valid relocation there are reasons to believe that the trial court at that time would have supported the same contention but for the accident that the yes you do claim had been located by a deputy united states mineral surveyor and that as a matter of public policy the trial court construed section of the united states statutes so as to include a deputy surveyor among the officers clerks and employed emp loyes in the general land office to be prohibited from directly or indirectly purchasing or becoming interested in the purchase of any of the public lands thus excluding them from the benefits granted by section 2319 there were no reported decisions of any court construing the said section and the decisions of the land department upon the general scope of this section have been contradictory and it was not until feb auary 1898 after the date of the location ot oi the yes you do claim that the department held that a deputy mineral surveyor was prohibited by statute from making entry of a mining claim up to that time the rulings allowed a deputy surveyor to make a mineral entry the only limitation being that in such a case lie he could not act in any other capacity than that of claimant A manual of instructions to deputy mineral surveyors surveyors issued by the land department and approved by the secretary of the interior as late as 1895 gives an example of a location made by a united states deputy mineral surveyor plainly confirming the right to make a valid location this matter is far from being settled even now notwithstanding the decision of the state supreme court which denies to a deputy mineral surveyor the right to make a location of mineral ground anywhere in this broad land the court having found that the yes you do was not a valid location that the plaintiffs protest and adverse claim based upon said location was without right and that therefore the plaintiff had no standing in court as adverse claimant should have dis missed the case but instead of dis dismissing the case and leaving to the land department the responsibility of passing upon the merits of the respective claims for which application was made for patent the court because of its ruling that the location made by a deputy mineral surveyor was void rejected all of the proofs offered by the plaintiff and reached the conclusive presumption that under section 2325 of the united states statutes that the defendants were entitled to possession this presumption also logically meant that the defendants had been in exclusive possession of the area in conflict with the no band 1 and no 2 and mute locations since 1889 and 1890 which the evidence showed was not true the state supreme court basing its opinion on this conclusive presumption of possession held that the defendants were entitled to a patent under the statute of limitations as well as upon the construction of section of the united states statutes the united states supreme court denied the correctness of the former and assumed the latter interpretation to be not true leaving every conclusion reached by our state courts as erroneous As a matter of fact only the flimsiest flims iest kind of evidence was presented to the court quite ex parte and in a parallel case that of the buttermilk vs the mute the findings of the court were merely the terms of compromise between the parties and not the results of any investigation vesti gation thus it was found to be immaterial whether or not the and mute milte locations were originally valid or whether any assessment work was done on them except as to the year in which the senior location ceased to do such assessment work after these de decisions of the courts the land department refused to antei into the merits of the applicants claims insisting that the matter had been conclusively determined in a proper court the government was not considered as a party to the suits and the effect of such proceedings was to shield defective or fraudulent claims from any further danger in the land department these and findings of the courts however were worth mentioning here because they present peculiarities of their own which go toward exemplifying not only what a game of chance after all is the administration of our mining laws but also that in such game one cannot even rely upon what our honored president calls a square deal some courts hold that it is ther their duty to protect the rightson rights right of the government to its land to see that the sundry requirements validity of discovery assessment work etc are fulfilled and if necessary to find that neither of the claims in dispute are v valid al id as required by the amendment of section 2326 of the united states statutes pa passed S sed march 3rd ard 1881 it would seem that any co court urt which bases its fl finding upon public c policy might consistently upon the same ak ground accept any evidence which goes to prove that a certain claim which application R is made for patent is not valid especially as the land department is then de barred from examining into the matter it seems clear that according to the procedure obtained in these cases to insure plain sailing in the land department it is sufficient for any fraudulent claim if such conception is still possible to initiate an adverse suit with another defective one and the court will find that the second one being not good the first one by presumption is good or if it suits best the two claimants may agree upon some compromise and the court will find that both are good and adjudge the conflict according to the compromise this condition is intensified by the ruling of the supreme court of utah concerning what constitutes a valid discovery of mineral to any one who has experienced what amount of trouble and expense may be caused in the land department in the absence of adverse suits by any irresponsible and unscrupulous protestant amicus curiae even after the receivers receipt for the land is obtained the above solution would recommend itself although it is plainly a premium upon fraud reverting now to mr grahams article its main purpose though not hinted at by its title and of comparatively little importance to the mining fraternity seems rather to lay in the exploiting of the affairs of the saint joe company and in the booming of its property and of its genial doctor again the s tory story told mainly maimy of litigation beside the one decided by the united states supreme court is incorrect and misleading in some important particulars but especially in the general tendency of showing the saint joe company and its genial doctor in the light of vindicated victims of possibly malicious litigations on the part of its neighbors As nothing could be farther from the truth a few details are now added although they are not of general interest after the first step at the trial court in the cases of yes you do DG vs no 1 and 2 and yes you do vs mute a stipulation was entered by and between the parties the intention being to permit the plaintiff without prejudice to his rights at that time to delay any and all steps looking to an appeal in the second causa until the final decision was reached in the first cause it appears that such stipulation could not be binding in law as by the state supreme court the six months limit to an appeal being jurisdictional the final decision was reached last may but long before that the defendant proceeded in the application for patent of the mute claim breaking his covenant in the intention it a not perhaps in the actual wording again after the ruling of the trial court in the yes you do case the plaintiff being still of the opinion that the and mute locations were illegal at the start and had been practically abandoned for many years till the saint joe company purchased the same with some of its stock in view of the doubt as to the legality of the yes you do location itself came to the conclusion that the ground in controversy might be still free and upon this assumption caused some new locations to be made and upon these he initiated sundry secondary suits which of course at present after the united states supreme court decision may not have reasonable merit except as to the last one to wit the yes you do vs no 5 this claim being a junior location made bythe saint joe company in order to jump as mr graham would say a certain fraction of said yes you do claim not in conflict with the no 1 and 2 nor with the mute probably for the reason that it could not well be embraced in their surveys for patent upon this fraction of ground the principal workings of the yes you do claim that is many years of bona fide assessment along a mineralized contact exist the validity of the yes you do claim has not been determined by the united states supreme court and this last case has certainly merit and it should have great interest for all united states deputy mineral surveyors but the ground in contention is probably far from having sufficient intrinsic immediate merit to justify any further expense the same however may be said of other portions of ground in contention or not that would explain why so many old locations upon the same ground were abandoned or quasi abandoned and why no more adverse suits were initiated because when the saint joe company entered the bingham district it merely purchased mainly with company stock several of such doubtful locations and it claimed with new locations other land in sight no not j actually patented or applied for patent it started some tunnels away from the ground later in controversy and applied the tunnel work as assessment work and later as patent work even now the saint joe company has but little or no work of its own actually on the ground of several conflicting claims the claim or claims through which the saint joe company attempted to absorb part of the greek group mentioned by mr graham were probably no more irregular than the principal claims no 1 and 2 and mute but the complicating elements above described did not enter into the game and the encroachments encroach ments along that line were prevented at the trial court not relinquished by the saint joe company in conclusion it may be said that while the saint joe company did not need the encouragement coura gement of the present united states supreme court decision to enter upon its enter enterprising rising career this may be considered to some extent as an advance specimen of the probable consequences of said de decision cislon the actions of the saint joe company appear now legalized by such decision but notwithstanding all that mr graham is not justified in making the claim in his article that some litigation took on the semblance of blackmail ils as nothing could be farther from the truth as he himself ought to know mr graham should rather content himself in repeating the other claim that the saint joe property is now in shape to put out over fifty tons of fair milling ore daily largely from development work as in all probability nobody would oe be deceived by that unless it be some eastern stockholders least of all should the genial doctor complain of hampering litigation he should be actually thankful for the great help that it turned out to be in legalizing apparently worthless titles raising the value of the property a hundredfold before the eyes of the stockholders raising funds once more and silencing those of the minority stockholders who did not approve of some reported highhanded high handed proceedings who perhaps insisted on asking questions and as mr graham stated in applying for a receivership G LAVAGNINO |