BROWN V. GURNEY, 201 U. S. 184 (1906)

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U.S. Supreme Court

Brown v. Gurney, 201 U.S. 184 (1906)

Brown v. Gurney

Nos. 97-99

Argued December 5, 1905

Decided April 2, 1906

201 U.S. 184


The Land Department refused to issue a patent on a mining lode location for which the local office had issued final certificate on the ground that the entry embraced two tracts separated by a placer claim; but gave the applicant the privilege for a definite period of electing which tract he would take, the entry to be cancelled on one of the tracts specified unless he meanwhile appealed or made his election. Within the period, he waived his appeal and elected to take the other tract. Subsequently the Land Department entered a formal order cancelling the entry as to the tract abandoned. Meanwhile three entries were made of the abandoned tract. The first immediately after the Land Department had refused the patent; the second immediately after the election and relinquishment was made, and the third immediately after the final order of cancellation was entered. In consolidated adverse proceedings between these three entrymen, held that:

In adverse proceedings, each party is practically a plaintiff, and must show his title.

The order refusing to grant the patent did not, of itself, restore the land to the public domain during the period of election, but the relinquishment of the original entryman to the abandoned tract operated to do so eo instanti, and the formal order of cancellation merely recorded a preexisting fact, and the rights of the party entering the land immediately after the relinquishment were superior to those of the other entrymen.

Rulings of the Land Department as to land covered by a location cannot be challenged collaterally in separate proceedings, and the principle of freedom from collateral attack is equally applicable in cases of final entry as in those where patent has issued.

A final certificate issued after submission of final proof and payment of purchase price is for many purposes equivalent to a patent.

Brown applied for a patent on a mining claim, known as the Scorpion, and Gurney adversed this application as the owner and claimant of the Hobson's Choice, as did Small,

Page 201 U. S. 185

also, as the owner and claimant of the P.G. Claim. Thereafter, each brought suit in support of his adverse claim in the District Court of Teller County, Colorado. The cases were tried together on an agreed statement of facts. This showed that the Scorpion, Hobson's Choice, and P.G. locations covered substantially the same tract of ground, and were all made in compliance with law, with the exception repeated in connection with each of said locations:

"Provided, however, that it is not admitted that, at the time of said location, the ground embraced in said location was a part of the vacant and unappropriated public domain."

It appeared that, prior to May 28, 1895, a mining lode location called the Kohnyo was owned by the Cripple Creek Mining Company, which claim was divided into two noncontiguous tracts by the Mr. Rosa placer claim. The north end of the Kohnyo, comprising five hundred feet of the claim, was where the discovery of mineral was made, and it also contained a discovery shaft and the other workings and improvements of the claim. The south end being seven hundred feet in length, did not show mineral, and was without development work of any kind.

The following diagram illustrates the situation:


The local land office permitted the claimant of the Kohnyo to enter the two tracts as one claim, but the Department ultimately refused to issue a patent for such tracts, basing the refusal upon the ground that two portions of a lode mining claim, separated by a patented placer, could not be included within one patent. The Land Office gave the applicant, however, the privilege to apply for a patent upon either of

Page 201 U. S. 186

the segregated tracts, and directed that, in default of an election or appeal by the claimant within sixty days from the date of the order, the entry of that portion of the claim lying sough of the Mr. Rosa claim should be cancelled without further notice. This decision was rendered May 28, 1895, and no appeal was taken from it; but the claimant of the Kohnyo instituted proceedings against the claimant of the Mt. Rosa placer, the purpose of which was to secure title to the vein of the Kohnyo, which, it was claimed, passed through the portion of the placer claim which conflicted with the Kohnyo location. These proceedings were prosecuted before the Land Department, with the result that, on May 7, 1898, a decision was rendered against the Kohnyo claimant's contention of a known vein in the placer conflict.

June 14, 1898, the claimant of the Kohnyo filed in the Land Office a written instrument, dated June 10, by which it elected to retain and patent the north end of the Kohnyo claim, and in which it also waived any right to further question or review the decision of the Secretary of the Interior of May 7, 1898, affirming the decision of May 28, 1895.

July 15, 1898, the Commissioner of the General Land Office cancelled the entry of the Kohnyo claim as to that portion south of the Mr. Rosa placer.

May 13, 1898, Brown located this seven hundred feet as the Scorpion lode claim. June 23, 1898, Gurney located the same premises as the Hobson's Choice lode claim, and July 16, 1898, Small located the same ground as the P.G. lode claim. July 15 and 16, 1898, the claimant of the Scorpion filed amended and second amended certificates.

On these facts, judgment was rendered for defendant in each case, from which plaintiffs appealed to the supreme court of the state. That court reversed the judgment in Gurney v. Brown and entered judgment that Gurney recover the premises included in the Hobson's Choice location, and for costs, and reversed the judgment in Small v. Brown, and entered judgment "that neither party has established any right to the

Page 201 U. S. 187

premises in controversy," and for costs. The opinion is reported in 32 Colo. 472.

Page 201 U. S. 189

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