DEFFEBACK V. HAWKE, 115 U. S. 392 (1885)

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U.S. Supreme Court

Deffeback v. Hawke, 115 U.S. 392 (1885)

Deffeback v. Hawke

Submitted October 14, 1885

Decided November 16, 1885

115 U.S. 392


No title from the United States to land known at the time of sale to be valuable for its minerals of gold, silver, cinnabar, or copper can be obtained under the preemption or homestead laws, or the townsite laws, or in any other way than as prescribed by the laws specially authorizing the sale of such lands, except in the States of Michigan, Wisconsin, Minnesota, Missouri and Kansas.

A certificate of purchase of mineral land, upon an entry of the same by a claimant at the local land office, if no adverse claim is filed with the register and receiver and the entry is not cancelled or disaffirmed by the officers of the Land Department at Washington, passes the right of the government to him, and as against the acquisition of title by any other party, is equivalent to a patent. The land thereby ceases to be the subject of sale by the government, which thereafter holds the legal title in trust for the holder of the certificate.

The officers of the Land Department have no authority to insert in a patent any other terms than those of conveyance, with recitals showing a compliance with the law and the conditions which it prescribed. The patent of a placer mining claim carries with it the title to the surface included within the lines of the mining location, as well as to the land beneath the surface.

There can be no color of title in an occupant of land who does not hold under an instrument or proceeding or law purporting to transfer the title or to give the right of possession. Nor can good faith be affirmed of a party in holding adversely where he knows that he has no title, and that under the law, which he is presumed to know, he can acquire none. So held where, in an action of ejectment for known mineral land by the holder of a patent

Page 115 U. S. 393

of the United States, the occupant set up a claim to improvements made thereon under a statute of Dakota which provided that

"In an action for the recovery of real property upon which permanent improvements have been made by a defendant or those under whom he claims, holding under color of title adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a counterclaim by such defendant,"

he not having taken any proceedings to acquire the title under the laws of Congress authorizing the sale of such lands or to acquire the right of possession under the local customs or rules of miners of the district.

It would seem that there may be an entry of a townsite even though within its limits mineral lands are found, the entry and the patent being inoperative as to all lands known at the time to be valuable for their minerals or discovered to be such before their occupation and improvement for residences or business under the townsite title.

This is an action to recover a parcel of mineral land situated in the County of Lawrence, in the Territory of Dakota, claimed by the plaintiff under a patent of the United States bearing date on the 31st of January, 1882. The complaint alleges that on the 20th of November, 1877, the plaintiff, being in the actual, peaceable, and exclusive possession of the premises, filed his application in the United States land office at Deadwood, in that county and territory, to enter the land as a placer mining claim; that on the 31st of January, 1878, he entered the same and paid the government price therefor, and that on the 31st of January, 1882, a patent of the United States conveying a fee simple title to the land was executed and delivered to him, the land being described as mineral entry No. 8, and mineral lot No. 53; that while thus the owner and in possession of the premises, the defendant, on or about the 1st of July, 1878, with full notice of the plaintiff's title, unlawfully and wrongfully entered upon a portion of the premises, which is particularly described, and ousted the plaintiff therefrom, and has ever since withheld the possession thereof, to his damage of $500.

The complaint also alleges that the value of the rents and profits of the premises from the entry of the defendant has been $800, and it prays judgment for the possession of the premises, for the damages sustained, and for the rents and profits lost.

Page 115 U. S. 394

To the complaint the defendant put in an answer, admitting that on the 20th of November, 1877, the plaintiff filed in the United States Land Office his application for a patent of the placer mining claim, described as mineral lot No. 53; that it includes the premises in controversy, and that on the 31st of January, 1878, the plaintiff paid to the receiver of the land office the price of the land per acre, and received from the register and the receiver a certificate or receipt therefor, which payment and receipt are commonly called an entry.

The answer also contains two special pleas by way of counterclaim, upon which affirmative relief is asked, namely that the plaintiff be decreed to be a trustee of the premises for the defendant and be directed to convey them, or an interest in them, to him or to allow to him compensation for improvements thereon. In the first of these it sets up various matters as grounds to charge the plaintiff as trustee of the premises for the defendant. In the second special plea it alleges improvements made upon the premises either by the defendant or his grantor as a ground for compensation under the statute of the territory.

In the first special plea, the answer avers substantially as follows:

That on the 28th of February, 1877, the day on which the treaty with the Sioux Indians was ratified, by which the lands in Lawrence County were first opened to settlement and occupation, the land included in mineral lot No. 53, together with a large amount of other land in its immediate vicinity, was appropriated, set apart, and occupied for townsite purposes, and, as such, was surveyed and laid out into lots, blocks, streets, and alleys, for municipal purposes and trade, and was then, and has ever since been, known and called the Town of Deadwood; that the town then contained a population of 2,000 inhabitants, and about 500 buildings, used as residences or for business, and not for agriculture; that the town was then, and has ever since been, the center of trade and business west of the Missouri River in the Territory of Dakota, and at the commencement of this action, contained a population of about 3,000 inhabitants, and buildings and improvements of the value of about a million of dollars;

Page 115 U. S. 395

that the land in controversy was one of the lots originally laid out and occupied for townsite purposes, and has always been thus occupied by the defendant or his grantors, with the buildings and improvements thereon, for the purpose of business and trade and not for agriculture; that the placer mining claim, for which the plaintiff filed his application for a patent, as alleged in the complaint, was not located or claimed by him or any other person until after the selection, settlement upon, and appropriation of that and adjacent lands for townsite purposes, and that on the 29th of July, 1878, the Town of Deadwood being unincorporated, the probate judge of Lawrence County entered at the local land office, the said townsite, paid the government price therefor, and received from its officers a receipt for the money and a certificate showing the entry and purchase by him in trust for the use and benefit of the occupants, including the defendant, and that such townsite embraces the land covered by the plaintiff's patent.

The answer further alleges in substance that thereafter, on the 10th of April, 1879, the Commissioner of the General Land Office at Washington ordered a hearing before the land office in Deadwood between the plaintiff and the probate judge, as trustee for occupants of the townsite, as to the character of the land for mineral purposes, at which hearing it was not disputed that the defendant and other occupants of town lots in Deadwood were the prior appropriators of the land, but the Commissioner refused to allow the consideration of any other fact than the mineral character of the land, holding as a proposition of law, decisive of and controlling the case and the rights of the parties, that the only question of fact that could be considered was the mineral or nonmineral character of the land, and that the fact of the prior occupation and appropriation of the land for townsite purposes did not confer any right upon the occupants; that the register and the receiver followed these instructions and decided the controversy solely upon the ground of the mineral character of the land; that their decision, upon appeal to the Commissioner of the General Land Office, and thence to the Secretary of the Interior, was affirmed, and those officers, the Commissioner and the Secretary, awarded the

Page 115 U. S. 396

land, with the improvements thereon, to the plaintiff and refused to patent the same, or any interest therein, to the said probate judge or to the defendant, but cancelled the entry of the judge and directed and caused the patent mentioned in the complaint to be issued to the plaintiff, whereas the defendant insists that the patent should have contained an exception or reservation excluding from its operation all town property, and all houses, buildings, lots, blocks, streets, and alleys, and other improvements on the land, not belonging to the plaintiff, and all rights necessary or proper to the occupation, possession, and enjoyment of the same; that the decision of the Commissioner and the Secretary in awarding the property to the plaintiff and refusing to recognize or protect the prior rights of the defendant and other occupants of the town was contrary to law and an erroneous construction thereof, and that therefore the plaintiff, by reason of his patent, holds the land in controversy, and the buildings and improvements thereon, in trust for the defendant, all of which should be conveyed to him, he offering to pay his just proportion of the legal expenses of procuring the patent.

In the second special plea, the answer sets up that on the 28th day of February, 1877, one Henry B. Beaman, being one of the occupants of the townsite, was in the peaceable and lawful possession of the premises in controversy, with a building and other improvements thereon, and that, from that time until his conveyance to the defendant, he remained in the continuous occupation thereof, using the same as a town lot for business and trade, claiming title thereto in good faith against all persons, except the United States, and claiming the right to acquire the title from the United States as a town lot; that thereafter the said Beaman sold and conveyed the premises to the defendant, who purchased them in good faith, and, before the plaintiff acquired any title thereto, made permanent improvements thereon of the value of $1,300, and that the value of the land itself without the improvements would not exceed $100.

The answer concludes with a prayer that the plaintiff take nothing by his suit, and be decreed to convey to the defendant the premises in controversy, excepting and reserving to himself

Page 115 U. S. 397

the right to mine and extract the precious metals from them, provided, in so doing, he shall not materially injure, endanger, or interfere with the buildings and improvements thereon and the necessary use and enjoyment of them by the defendant, and that in the event it should be determined that the plaintiff is the owner of and entitled to the possession of the premises, then the value of the improvements thereon be specifically found, and the defendant have judgment for the same and for such other and further relief as may be just, with costs.

To each of the special pleas of the answer the plaintiff interposed a general demurrer on the ground that it did not state facts sufficient to constitute a defense to the action nor a counterclaim in the defendant's favor against him, which was sustained, with leave to the defendant to file an amended answer. The defendant refused to amend, and elected to stand on his pleadings. Judgment was therefore entered for the plaintiff. On appeal to the supreme court of the territory, the judgment was affirmed, and the case is brought to this Court on appeal.

Page 115 U. S. 400

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