(C£rcuf.t Court, D. Montana. February 25, 1892.)
MINING CI.AIM-NATlJRE OJ' ESTATB-DoWER.
A mining claim in the public domain, as defined by Rev. St. U. So' 52822, is BSUbjeqt'of dower, since the estate is one ,of inheritance, and the'owner bas a title of tbe highest kind.
B. SAME-PATENT-MERGER 011' CLAIM. , , ' When a person ill posSe!l!liOIl of B mining claim obtains a patent therefor, lifter posting notices, making proofs of work, and paying five dollars peraore"as by Rev. St. U. S. 5 the claim, as a separate estate; is merged In the full fee, ' silpple t i t l e . , 8. SAME-DoWER. ,.', . ' I When such a merger takes place, a right of dower in the subordinate estate Is ex. . tlnguished, if the owner thereof has filed no adverse claim in the register's against t4e application for a patent. . " ,
At Law. Action by Mary A. Black against the Elkhorn Mining pany,Limited, to recover dower in a mining lode. A complaint was overruled. , 47 :Ired. Rep. 600. The hearing is now l1POP a demurrer to new matter in the answer. Overruled. ' Word, Smitk &- Word, for plaintiff: Oullen, Sanders &- Shelton, for defendant.
KNOWLEs, District Judge. The plaintiff, Mary A. Black, this action to have dower assigned her in the A. M. Holter lode, in Elkhorn mining district, Jefferson county t Mont. The c 'l1plai'p't sets forth that L. M. Bhtck was the husband of plaintiff; that in his·life.. time he WllS seised of an estate of inheritance in the said A. M. Holter lode; that he conveyed the same to one Burton, and that by. conveyances the title possessed by him passed to defendant; that tiff did not join in this conveyance to BurtoD, and never at any linquished her dower in any way in said premises. The appears, is a corporation. It denies all these allegations of the plaint, and t4en sets up several averments of new matter a . , defense to the cause action set forth in the cumplaint. The plaintifffiled her demurrer to this new matter. I find myselfsoillewhat perplexed in considering the same. The first ground set forth in this new matter is to the effect that plaintiff ought not be endowed of the property described in the complaint, because L. M. Black, her was not at the time of his marriage with plaintiff, or at any time thereafter, seised of" said tenements, with the appurtenances whereofplain; tiff claims to be endowed." This seems something like the averment of a conclusion of law. The third averment of new matter for a defense is that the Elkhorn Mining Company, the grantor of defendant, being seised of the premises and possessed thereof, applied for a patent to said premises from the United States, and that plaintiff filed no adverse claim to this application, and that on the 19th day of November, 1889, the United S,tates issued a patent to said Elkhorn Mining Company for said land. Considering these two defenses together, and the arguments and
briefs of cQunsel, and it is evident that the two points sought to be presented are: Jiirstlthat! there is l'midowerin an unpMenlred mining claim; and, second, that, if plaintiff had any dower-right in such a claim, it was lost by plaintift''.failing W'file an adverse Claim to' the application of the Elkhorn Mining Company to th El same. .· .. "." of these prQpositions. now .ponsider. Is there any dowe1"rightrna· miningcla:inr(undeJ!the laws AJ;ld tn answering this question I am called upon to deternl,ine what is the nature of.:th,.ustate ina The 2322d section of the Revised 8tat" "The locators of all mining claims heretofore or which shall hereafter be made on any mineral vein upon tbe. public domain, a,sslgps, wbt'.n.no. adverS 8l cll\lm on the 10th day of May, 1872. so long as they comply with the lawsof United 8tates, and local regulations not in conflict with the laws of the United States, governing their possessory, shall the exclus,ive of possession and enjoyment of pi their, and of all or all lodt"s, and, througho1-1t theIr entue depth, .the top or apex of whIch lies in$Iile of:Sucb sirrface lines extended downward vertIcally." ' I have been unable to find any lali\guage to this in any deed or other grant. The supreme court, in the case of Forbe8 v. Gracey, 94 U. 8. 762, says: "The usa, A#tbe word, -mining' or ·mining claims' is evidently intended to . b,etween the,caee in which. the miner is the owner of the soil. and thertlfotehas a perfect title to the mine. and in whicb the miner does not have title to the soil,but works the mine under what is known in the ' mining distrIct,' and What is, as we have said. by the act of congress. as a mining claim....
j ..... : '. ; . "
At place mtllis opinion the court says of a mining claim: "Itis property in the miner of great value." And agai,n: "ThesAclaims ai'esubjects of bargain and sale·. and constitute, very largely, the wealth of the Pacific coast states." And again: "This claim may be sold, transferred, mortgaged, and inherited." In all this there is no very cleat statement as to, the nature of the estate in a mining claim. The only definite proposition is that the miner owning a mining claim does not own the Boil embraced within the lines of his claim. . In the case of Erhardt v. Boaro, 113 U. S. 527, 0 Sup. Ct. Rep. 560, the court again say: "The government of theJJnited States has opened the public mineral lands to exploration for tile precious metals. and. aft a reward to the successful explorer. grants to him the right to extract and possess the minerals within cer' tain prescribed limits."
"CongreSs has seen fit to make tbe possession, fof that part of the publio fee. and to provide lands which, is valuable .fqrmj'gera1s sepa'table froin right to possession the paramount for the existence .of the. in States." . . title to the in speaking of the lQ98-tion of a mining clahn, it said: "Wben perfecte4. it of a grant by the United States of the possession." right of present and Taking thestatu.te and these decisions together,and' wefind:.tbat thi3 locator of a mining claim bas a "possessory titlajll: that it is property, in the highest sense of thattertnj that it' may be sold, mortgaged,and inherited; that he may enjoy thi$ possession, and aU lodes whose apex' lies within the surface lines of his location, through their entire depth, r and that he may mineand'f\xtraot, and to his own uS6,"all the minerals thereinjand that this rightoomes 'by virtue ofa grant! from the; United States. the.own'er of the ·soil. Let' us turn to someoll the decisions of state courts; and see bow certain language in: private I grants have been construed. In 'case of CaldweU v. Fulton,Sl St.' 475 j iu a conveyance,inwhich this language was used, namely, 4'8180 the·full right. title, flndiprlviIege of digging and taking.away stonecoa.l,w any extent the said George Greer may think 'proper to do or cause done',1 under any of: the landi:no'W owned and occupied by the said James Caldwell:proivided, the entl"allcethereto discharge therefrom ,be upon the .foregoing premises," it was beld that all the ooal 'beneath the 'tract of larld'occupiedbysaid James Caldwell was conveyed as 'a corl'lOtealhereditament, andtbat theYl1 did not import simply alicerise. Here the right to be oonsi'del'ed is that, in connection with thep088essionof the lode,the locator had'a! right to extract and appropriate all ores found therein, to any e<xtent.! The right is grant of plae.e. is a, of it,as land.Emeryj Co. v· .Luca8,112 Mass. 424, Manmng v. Prazter, 96 Ill. 279j HOIftwell v. 'Oamman,lO:N. J. Eq.:-128. There is undoubtedly a! distinctidnto be drawn between, a grant of coal or minerals in place, I and the grant of the right to extract and appropriate to one's own use such articles. Yet, as where the right to dig and appropriate such ores is an exclusive right,which passes to one's heirs IIrid assigns, and this right exffends throughout the entire depth of the mine, it is very difficult to distinguish it from a case where a man receives the title to coal in place. When a man receives 8 grant ofall the beneficial interestdsan estate, he receives the estate. ,The simple ,right to dig and carry. away ores is an entire thing, and cannot be .divided, SO as to have the same shared byseveraJ under the original claimant or proprietor. 2 Washb. RealProp. 379·. There has never been any doubt but that the:locator of a mining claim could give anynurnber of men the right to separately dig and carry away ores generally, or to a', specifio
an interest in land called "profit a prendre. II , It is the right oC taking soil; gravel; minerals, and the like· from land of another. 'Washb. U. In the case of Erhardt v. Boaro, Btlpra, the supreme
I'JllDERAL REPOB'.J:ER ,vol.
held that a minor had the right'toextractand possess the mineral found in, his location.·· A prqftt a prendre is ll.n interest in the estate.' .Pb8tv:Pearsall, 22·Wend. 425; Pierce v. Keater,70:N. Y. 419. In many particulars the right of' a locator of a claim is similar to this right of prbftt a prendre; but the6wner of this last right has not, as 1 bli,ve been able to find, any such right as the exclusive possession and of the mine from which he takes his ore. It may be that we a mining claim under any of the heads which have been to4escribe real or personal property, and it may be sui generis. In Q1l.this WEllitern region, .where mining for· precious metals exists. a mining, qlaigl: has been copsidered property, as an interest in land. It conveyed by deed. Actions for the recovery of possession of;rEjslestateapply to it; also, actions to quiet title; for trespass upon An action. of quare claU8Um fregit, applies. They have always treated. as real estate in the succession and distribution of estates of deCeased persoJ:Js. This view was entertained by Judge HALLETT Mining Co., 8 Fed. Rep. 863.. It was held to be real estate v. Gisborn, 2 Min. Rep.i340j Merritt v.Judd, 6 Min. 62; Belk v.Mea.gMr, 3 Mont. 79. It is evident, too, that the words" heirs andassignljl," in the statute making the grant of a mining claim, are not limitation, but are used to designate the estate conveyed as one of inh.edtance. The ,wotd.s "lands" and "real estate" are used in the . of Montana as SYIlonymous terms. The definition Of both is the . .see section 202, Compo St. Mont. p. 648. Plaintiff would . then have; in the property 8,8 a mining claim. , ; The Jorconsideration is as. to the effect a patent from the United-Statal!! to the. Elkhorn Mining Company of theA. M. Holter lode . haiVe upoP this right of dower: in the same,as the title to the same pliltent therefor. Perhaps plaintiff, never having been asher dower, in sa,idclaim, could not file an adverse claim to the ll.pplication ofthe Elknorn Mining, Company for a patent therefor; but I she had proceedings for a patent stayed until her dower :could bave.been assigned her; and·then she could have presented her .rights. pJainti:ff claims that the title held by her husband in the A. M. iHolwrlod.IDvas ,an equitable title, .&nd that the patent title was only It of the same. There is no claim that her husband had paid ,the government price for said land, or performed the other acts which lin connection therewith would entitle him to a patent from the United States; .b:qt the claim is;that the locator of a mining claim has an equi,table title,t<) same from the United States. I do not think this can be maintainlld. In the case of Belkv. Meagher, 3 Mont. 79, the supreme ,:court of Montana held that the title to a mining claim was a legal title. ,Until a person who has located a mining claim has done everything the :pnited Statee,statute requires upon an application to purchase the same from the United States, and has paid the purchase price thereof, he cannot be sRid to have any equitable title in that estate not vested by the .mining location. The right to purchase from the United States the ,premi/les uPl?n which a mineral location has been made by the possessor
BLACK V. ELKHORN MIN. CO.
of the same is not an equitable estate in'the premises. It has been held by the supreme court oithe United States that the right which a settler has upon public lands, to pre-empt them, is no estate in such lands, although actually settled upon by him. Hutchings v. Low, 15 Wall. 77; Prisbie v. Whitney, 9 Wall. 187; Wirthv. Branson, 98 U. S. 118. In the case of Forbes v. Gracey, BUpra, the supreme court held .that the United States had not parted with the title to lands in which minerals were found by the location of a mining claim; and in the case of Bdk ".· Meagher, IlUpra, it was held that the paramount title:was in the United States to land held as a mining claim. In section 2325, Rev. St. D., S., there is a provision made for the purchase of these lands. While in. all of this I do not think there is anything that is inconsistent with theposi,tion Mfore maintained, that an estate called a" mining claim" had been carved out of the estate the United States held in these lands, by virtne·of a m'iriin,g location on the same, yet it is apparent that the government ,has a large'estate in such lands, not disposed of by such location. In;the estate created by the location, the plaintiff was entitled to dower. In the estate held by the United States, she had no such right. Persons who make the proper applioation to patent a mining claim, post the proper noticeS,and· make the proper proofs of work, etc., and pay the price or five dollars per acre, are, under the provisions of said section 2325;'eJl;. titled to a patent; and where no adverse claim appears to this applieS!tion the language of the statute is: "If no adverse claim shall have been filed with the register and the recei1ler oithe proper land-oflice at the expiration ofsixty days of publication, it shaH be assumed that the applicant is entitled toa patent upon the payment tothlt proper oflicer of five dollars per 'acre. and that no ad verse claim The patent conveys the paramount title to the applicant, and by virtue of the statute the patent is presumptive proof that the applicant was the owner of the mining claim conveyed thereby; and this cannot be controverted except for fraud, or a mistake on the part of the officers of the. land department as to the law applicable to the conceded facts in, the case. What becomes of the estate called a "mining claim" after a pat'ent issues? As I have said, the presumption created by the patent is that the applicant was the owner of this mining claim. The patent gives the paramount estate. These two meeting in the same party, the lesser estate, which is the mining claim, becomes merged in the greater estate, that is received by virtue of the patent. From the necessities of the case, this must be so. The mining claim is a contingent estate. It is kept alive by' the performance of $100 worth of work each year. If this work is not performed the claim is forfeited, and the land embraced within its bounds becomes public domain. Can it be that, after a patent is obtained; any work can keep this estate, called a "mining claim," alive, and subjMt it to forfeiture? Take the case in hand. Dower is claimed: in two-fifths of the A. M. Holter lode claim. Will three-fifths of this claim merge in the patent title, and· two-fifths remain without this merger? It is evident congress had the intent to create this merger by providing for the conveyance of the paramount title to the owner of the
claitn,and to 110 one/alae·. The:generalrule is that when ;merger 'Pla<:eas to two estatesiln IQ.rtd the inferior perishes; 13 Amer. & IJ:ng. Enc·.·Law,313, titL'fMerger.'! . Thee.atatecalled.a "mining claiJ;n" in the A;; M. Holter lodeperiehed when the Elkhorn Mining Company received apll.tenl ft>l'tbe same. It then to mds.t.l'fo estate was then left. in whichplaiatiff could claim: dower. ·As 1 have said, the entraised the presumptian that the mining claim was owned by the applicant.and that this ownerehipwll,s free from auy claim on the part of plaintiff. At the., issuing of the patent this minin/!;claim became merged in the paramoupttitlej and perished; 'and no estate is in the defendant ontof.whl6h plaintiff OM ask to have dower assigned. Tlds case is analogoue to that pf a .base fee. When a base fee is destroyed by the para. mouIit:.title,. dower in the sattle ie lost. JacksO'(l. v. /(ip,8 N. J. Law, McLean, 105 Mass. 122., :. I have :not.consideredfullythe effectoithe statute ofrlfontana which provides tbatthe husband, being a citizen of the territory of Montana, might convey. the full title to real estate by his deed, when hie wife was not living ,in tbeterritory of.Moptana. There may be .some question. as to wheJt,a to bea (litizenof a territory, and when the wife could be said robe living in some other locality:thanthe territory;'Tbe practical.construction which .has been.;plaoo;iupon this. utein Montana, for years, has been that:if theperwanent residence of the husband was in Montana, and his ,wife did Qot make her home with him, bl.\Hived in somlJ Qtller state or tj'lrritory permanently, or without any de1initepnrposeofcQming or. returning to· the territory. the husband could convey his, real property so as to exclude -dower by hie own deed. 'The truth is that; at the time this' statute ;was' eiiacted, Montana was anew. o<'.untry, and. there were many lJleulivjngtherein, actually engaged in extensive business; and purchasing and transferrin/!; real as. tate,who had wives inthestateswhopermanent!y resided there. Ow" ing to this condition of &oCiety, muchtrou.ble was experienced in. the ,conveyance of real estate., aQd many apprehensions fear that the title to real estate cQnveyed,'migbtsome day be incumbered by a claim of dower from some wife,·whose e;xistencE\ was unknown at the time of the ,conveyance. condition of affllirs, statute was enacted; and to this extent, I think, it modified the common Jaw upon this subject. The subsequent statute of dower did not directly repeal this statute. If it was repealed at all, it was by implication; l;mt where there are two.atatutes, and one can apply to the subject specified in the statute genetally, and the other can be oonsidered as an exception to the generalrwe established by the both should stand. This, I think,.will be found to ,be the proper oonstructi()n of the generallaw upon the subject of dower, and ,the Ilpecial statute abovereferred to. As it appeared to me the fOl"mer points considered would probably be decisive Of the case, 1 placed most thought upon them. For the reasons assigned the demurrer is hereby oveJTuled.
SPRING DISirrr.LEBy' Co.
courc 0/ AppeaZll, Stl:t1l. mrcuit. January 18, 189a.)
I1n'BJtlUL RBVENtJII-BoNDBD WABBUOUSB-EltOBSSIVlI Loss.
Rev. at. U. S.S 8221. abating ,the tax on distilled spirits whne In · bonded warehouse "by accidental fire or other casualty... does not Include a loss by the warping of barrels from unusual and excessive summer heat, abnormal evaporation, caused by such heat, or the existence of UJld1scoverabie worm-holes In the barrels. ' SAME-AJ..x.oWANOB FOB Loss. When the commissioner of internal reveune regardl a losl from' such cauleBas excessive he has authority, under Act Cong. May 28, S to order the withdrawal of the spirits from the warehouse'before the three years of the bond have expired, and to require payment of the taxon tbequantltyoriglnally,entered, Without making any allowance under section 17 of said act for the 1088, even though it oocurred without the fraud or negligence of the owner. ,4.7 Fed. Rep. 6ll8/aftlrmed.
In Error to the Circuit Court of the United States for the District, of Kentucky. Petition by the Crystal Spring Distillery Company against AttiUs Cox, 8S collector of internal revenue, to recover taxes paid. A demurrer to the petiti<ln was sustained, and the cause dismWied. Plaintiff brings error. Affirmed. Walter Evans, fOf plaintiff in error. Atty., for defendant in error. Geo.W. JoUy, U. S. Before JACKSON, Circuit Judge, and SAGE and SWAN, District Judges. JACKSON, Circuit Judge. ' The writ of elTOr in this case is prosecuted to revise the judgment of the circuit court sustaining the demurrer to the petition and dismissing plaintiff's suit. The case presented by the petition is in brief this: In 1886 and 1887 the plaintiff, as a distiller in the fifth district of Kentucky, entered for deposit in its bonded warehouse, under and in accordance with the internal revenue laws of the United States, from time to time, 108 packages of whisky, containing by the original gauge made at the date of said entry 4,936 gallons, or over 40 wine gallons to each package. At the respective dates of entering said paokages for deposit in said warehouse,plaintilf, as required by law, gave bond;with surety,for the payinent of the 90 cents gallolHax thereon due the United States three years therealter; th'at being the period under the law during which the whisky could remain in bond, unless its withdrawal was sooner required by the commissioner of the internall'evenue. Iii the summer of 1888, before the expiration of thethree years bonded period, the commissioner of internal revenue instructed the defendant, Cox, who was then and during the year 1888 a collector ofinternal tevenue in nnd for the said fifth district of Kentucky, to require Ofthe plaintiff the immediate withdmwal of said packages of whisky from the wareho\lSEl, and the payment of the 90'eents tax upon each gallon. thereot, as ascertained by the original gauge made at the time of dep()Sit,'and wiihoutrlUlY'allowanee for losses occurring whileiIl said warehouse.,