FEDERAL REfORTER,
vol. 43.
FRANCOEUR
v.
NEWFJOUSE.
(Oircuit Oourt, N. D. OalijrYrnia. August 6, 1890.1
1.
PUBLIC LANDR-RAILROAD GRANT-ExCEPTION-MINERAL LAND.
Where a grant to a railroad company excepts mineral land, the term "mineral land" means land known to be mineral land when the grant took effect or which there was then satisfactory reason to be believe to be such.
2-, ADVERSE POSSESSION-GOVERNMENT TITLE.
Possession held in subordination to the title of the United States may be adverse as to another claimant.
At Law. This is the same case, the decision in which-on demurrer-is :reported'lu 40 Fed. Rep. 6is, where, the facts alleged in the complaint siated.Sometpree months before the commencement of the suit, eqna,l to the government price of land, the'Central Pacific Railroad Qompany executed a quitclaim deed to plaintj'Winwhich they "doremise, release, and quitclaim to the G. H. J[rancqeur, his heirs, ,and assigns, all the right, title andintereat that (he said cOlnpany, or the trustees now have, or may herea.lter acfrom the governmeIit of the United States in and to" the premises in'questioll, however, all claim of the United States to the sa'me as m.ineral land." 'A.'L. Hart,and Geo., I!. Francoettr,for pJaintiff J. M. SMweU alid J. E. Reinstein, for defendant. Circuit Judge.
SAWYF;a, J..,(orally jury.) I announce to you that I have soxpe special issues in addition to the general verdict, upon w,hich I desire you to find. It may save future litigation. I will read thernto you so trat you will be prepared to appreciate wht I havl'l to S&Y upon these points. The first is-"We the jury in the above-entitfe,d .911$e.find. for or defendant, whichever it tumsoutto bt;l. ';You :wj]l write in either or "defendant," according as you {ilid 'on all the issues in the case, \: , " !, ! ;.':"
SPECIAL ISSUES.
'The' next one is: (1) Was the land in question known to' be min-: end, pr wail there good reason to beHeve itwas mineral, at the datEl!of i¥ji,lg' ri;lap of general location ofthe route of the road, and the with.,: d,awalo£ the lanas by order of theseqrl'ltary interior, on August 2:,18$2? ,(2) Was the land in question known to be mineral, or was .reason to that it at the time that the line of ,tJIeroap. was locate4 ;mJ,866? (8) Is the land inquestion, in 'faCt, mineral land? (4) Had the defendant and his grantors been in the continuous, open and notorious adverse possession of the premises in question, claiming to be in the rightful possession under the laws, and afterwards under a patent of the United States adverse to
FBABCOEUR tI. NEWHOUSE.
237
the claim of the plaintiff and his grantor, fora period of five years next before the commencement of this suit, on June 28, 1889? Gentlemen, I will now proceed to state to you the law which governs this case, which is the province of the court to determine. You will take, and apply it as given to you by the court, whether it meets with your approbation or not. It will then be your province to find the disputed facts in the case, and those issues you are to find, upon the testimony before you, either for the plaintiffor for the defendant, as the preponderance of proof in your judgment requires. It only requires a preponderance of proof. You are the exclusive judges of the testimony, and to you alone belongs the finding of the facts. You are to examine the testimony of each witness. You are the judges of the credibility of You are to consider the intrinsic character of the testithe mo ny ,whether.it is intrinsically probable or not. You will consider any circumstances which affect the credibility of the witnesses, and give the testimony dfeach witness such weight as you think it is erititled to receive, and render your verdict as the preponderance of the evidence appears to be in your minds. The deed to the plaintiff from the Central Pacific Railroad Company is dated February 13, 1889, only two or three months before the commencement of this suit. The deed, it is true, is a quitclaim deed,but if the title to the premises in question was in the Central Pacific Railroad Company at that time, that deed conveyed the title to Francoeur, and in that case, if the title was in the Cen:' tral Pacific Railroad Company and conveyed to Francoeur, there must be a verdict for the plaintiff on that issue, and the plaintiff'will be entitled to recover unless the other defense of the bar, by the statute of limitations, is found in lavor of the defendant, in which case, of course, that will control. The first great question to determine, is, was the title in the Central Pacific Railroad Company at the date of that deed? If it was. it must have passed under the act of 1862, lands to aid in the construction ofthe Central Pacific Railroad Company, and if the title vested under that act, then the United States had nothing left in it, and it could afterwards convey no title by patent to the defendant in this case. The act of 1862 all sections numbered with odd numbers within a space of 10 miles on· each side of the road to the Central PaCific road, to which other right had not attached at the date of the final definite location of the road, and mineral lands were excepted·. If the land in question was mineral lanQ within the meaning of that act, the title never passed to the Central Pacific Railroad, because it was not granted. It was excepted out of the grant. If it was not mineral land, and. there is no claim that any other rights had attached, then of course the title passed to the Central Pacific Railroad Company, so it is important to inquire.whether, at the time the right of the company spedfically attached to,this land, it was minemI lsnd,within the meaning of, this provision of the statute. If you should determine that' it was mineral lanrl;that ends the case, because the company had no title which. it could .convey to the plaintiff in this case, and he relies upon
J'JllJ')ERALREPOBTEB,
vol. 48.
no'other title. . The ;complaint allegcssrid showB,arid all of the testimony shows, atid there is none to the contrary, that these premises are in!lact'mineral land. ' They were worked for years and a large quantity <Wgoldtaken out ofthem. Theyare.infact now, and were at the commencement of this suit according to their own allegations, mineral lands. If they ,were in fact mineral lands at the time of the commencement of this. suit, they must necessarily have been in fact mineral lands in 1862, at· fPe. date. of the passage of this act, and such lands as congress designed to exclude or except from theopetation of the grant, fOf· the characterofthe lands in this particular has not changed; but it has been held by the courts that only those nrc to be regarded as mineral lands withinithe meaning of the act of congress, which were known to be minei'al, or which there was satisfactory reason to believe were mineral at the time of the attaching oLthe right of the company to those particular lands. As it has been stated in the language Of the courts, the words HmineraI land," as used in the act of congress, mean land known to be mineral at the time the grant took effect, and attached to the specific land in question, or which there was satisfactory reasun to believe were' such at said dme. Only such land as was known to be mineral, or which there was satisfactory reason to believe wal3 mineral at the time the grant attached to the land, is excepted from the grant. lJGentlemen,. you have the starting point that these premises were in fact mineral lands. at that time. The question then arises; whether or not they were known, or there was sufficient reason· to believe, at the' time this grahtattached--and that is when the, line of the road became definitely fixed, to my con'ltroction of the act-to be mineral land, or whether there .was sufficient reason to believe they were mineral lands. Perhaps that is a little too restricteu, because there may be mineral land on portions of, land so apparent and obvious that anyone seeingit,would know it 'on sight, and yet DO one may have been .at that point to observe it at the time; yet because no one happened to be there, if the fact of their being mineral land is so obvious that it would have been manifest to any. one who inspected it, that, I take to be mineral land within themeanIllKdf this act. But It is sufficient for this case to take the other definitioh. For the purpose of this case, these lands were in. fact mineral. The question is, were they known to be mineral within the meOiuing of the act, or was there good renson to believe they were mineral. .' :(Sentlemen, you have .heard the tel!ltimony on that point. There is testimony:here tending to show tbat: persons did visit them, saw this mine; and saw men at work on this very ledge asearIy as 1862, and lier. That is a 'long time: ago. Of. course you cannot expect t() find v.ery definite and precisetestirilOny in regard to transactions that occurred so. long ago, but you take :that iri connection with the fact that they were mineral, and takell1uch other testimony as was presented to you and give it'such weight as you think it entitled to,for the purpose of determining wheth.er it was known to be' mineral, or there was good reason,to believe at' the time, that it was mineral. All· the testimony showS'
,:::hU.NCOEUR". NEWHOUSE. '.
939
-the land Twas good for nothing for agricultural purposes, and there was very little timber on this piece ofland according to the testimony. So, if it was good for anything, itwas perhaps good for mining purposes. You heard the testimony that they did not take it up, or if they did, and abandoned it, that they abandoned it, because they were unable on account of the inaccessibility of the mine, and the want of funds, to proceed and w6rk the mine. In determining that question, this is to be taken into consideration. It does not appear that the Central Pacific Railroad Company ever made any claim to this particular piece of land,. They filed a list upon a claim of other land surrounding it, and on parts of the same section, but omitted to file this, nor did they so far as the testimony shows file any independent or separate claim to it. Thetestimony shows also that it does not appear that the Central Pacific Railroad ever interfered with the parties who finally took it, up and mined there. It does .notappear that they ever made any adverse claim. It does appear that they did not contest the application for patent even as late as 1885. When a person applies for a patent for mining land, the law requires that publication should be given. so as to givepleiltyof time to advise the world .ofwhatis going on. ' The evidence shows, affirmatively, that the company took no steps to oppose the issuing of this patent, under which defendant claimsjand within two or three months before the commendement oHbis suit, the company executed this deed to the plaintiff in this case, and took particular care to protect itself in the form of that deed. The deed is that" they do remise, release, 'and quitclaim to the G. H. Francoeur, and his heirs and assigns, all the right, title and interest -that or the said trustees now have or may hereafter ae-quire from the government of the United States" in and to the following described. tracts of Hmd;"reserving however all claim of the· United 'Sbitesto :the same as mineral land. ". The small consideration ,of' the :deedwith the vast amouut of improvements upon it, and the fact that .they orilyreniise and release and quitclaim their right and title, and 'still protect themselves from any claims against the United Stat.es by thiS reservatii>D', you are entitled to consider in connection with the testhnony as indicating. the probability' thaHhe 'company itself did not consider: that that was within the provision of, the grant. That is not conclusive,: but is a' circumstance in connection with· the other facts in "the Case that you are 'entitled to consider, in determining the firstquesDon submitted as to whether, in 1862, these were known mineral lands, or 'there was good reason to believe they were mineral lands. If they 'were in II. known mineral belt also (and there is some testimony. tending to ,show that they were) that would' be<arl indication that there might be good reason to believe there was a known inine here to those who .saw the ledge. All these facts you ,will take into consideration. You ,'will take into consideratioD·.also,all of the contradictory testimony that youhav:e,hea:rd from the defendants, and, as the preponderance appears ,to be. find '''Yes,'' or "No," and annex your answer to that question." :The next question which you are called> upon to answer eland m;question known .to be minerll:l,orwas .there,good. reason.pube-
FEDERAL REPORTER,
lievethat it was mineral, at the time that the line of the road was deft.nitely located in 1866?" That is, four years afterwards. The remarks 1 made with reference to the first inquiry are also applicable to this inquiry. Then there is additional testimony here with reference to the actual taking up of this claim and prospecting it between those times. The grant takes effect on the specific land from the time of the filing of the .xnap of the definite location, or when no such map is filed from the time of the definite location in fact of the road.· The map of general 10cation was filed in 1862, but no map of definite location was filed until the of the road. so far as the evidence discloses. On the contrary, the allegations in the complaint are that the road was definitely locateu in 1866. There is no allegation that it was located earlier, and the presumption is that they allege it at the earliest day justified by the facts; and the jury are entitled to consider that that is the time when !the, road was definitely located, there being no allegation or averment that it was located on an earlier day, or you might say, the day before. Until tnat definite location, it could not be determined where the grant would 1aIl, and to what land it would attach. When the definite loca·tiori is 'filed. they cannot ohange it afterwards. Between the filing of the map of definite route, and the general location, there was a right to vary the line, because instead of being 10 miles on each side of the road, there was 15 miles withdrawn within which to swing, 5 miles on each side, to vary the line of the road and still retain their rights. At this .time in 1866, was the land in question known mineral !li.nd, or was there good reason to believe it to be mineral land? Take all the testimony in the case, and find on that issue as you think the preponderance of testimony is. There is considerably more testimony with refEllence to that than there was in regard to the prior date-1862. Is the land in question in fact minetalland? Upon that issue there is no conflict of testimony. It is alleged in the complaint itself that a gold mine was discovered as early as 1883, and the parties took it up, and took possession of it. The testimony all shows that it was worked for years, and large quantities of gold were taken out, so that there is no conflicting testimony in regard to that question. If you find that this was known mineral land" within the meaning· of the· act, or land that there was good reason to suppose to be mineral land, at the time the grant attached, then it is within the exception of the grant, and you must find for tbedefendant. If you find that it was not known mineral and there was not good reason to believe it was mineral land at the date; 1862, you will find for the pla.intiff on that issue. As to the 1866, the same rule will apply. If you find it was knowh .mineraHand in 1866, the date when the road became definitely located, or there, was good reason to believe it was mineral land, you will find forthe:defendaqt. On the contrary, if you find that it was not known ,.mineralJand at that date, or there was not then good reason to bfllieve it was, you will find for the plaintiff 9n' that issue; If you find for the plaintiff on those two issues, the title would be in favor of the plaintiff, would4ave to find a general verdict in favor· of the ,plaintifft
FRANCOEUR ". NEWHOUSE.
241
unless the defendant establishes the defense of the statute of limitations. The defendant has set up the statute of limitations. The law of California is, that if a person has been in the actual, notorious, adverse possession of land for a period of five years, the right of action of the real owner is barred, and the title as to him becomes effectually vested in the defendants. This suit was brought, and the complaint was filed on June 28, 1889. The statute oflimitations, therefore, began to run on June 28, 1884. If from 1884, or prior thereto, this defendant, and his grantors, were in the actual, adverse possession- of the!1e premises continuously until the commencement of this suit in 1889, then the bar of the . statute attached, the plaintiff cannot recover, and your verdict in that case will beror the defendant. If he was not in such continuous adverse possession, your verdict on that issue will be for the plaintiff. If your verdict on all the issues is in favor of the plaintiff, then you must find for the plaintiff, but if you find for the defendant on either orie of these iSl!;ues, except the third, your general verdict must be for the defendant, and you must answer these questions accordingly. What is an adverse possession? There is testimony tending to show that as early as 1882-83, parties went on this land, took actual possession of this mine, and continued to work it continuously down to the commencement of this suit. Those who first took up the mine, took up as the evidence shows, 1,500 feet by 300 or 600, I forget which, and conveyed to their successors in interest by those metes and bounds. The grantees went into possession, and finally conveyed to the Eagle Mining Company. Then that company went into possession. There is' testimonytending to show that they worked continuously on that claim, expended a large amount of money, away up towards the hundred thousands, in .improvements in and about the mine, and continuously worked down to the commencement of this suit. lf they did, they actually took possession of a portion of that land, and worked on it, claiming title to the full boundaries and continued in possession; that is, possession'oHhe whole, within the meaning of the law. They are not limited to the precise portion upon which they stood and worked. No one else appears by the testimony to have interfered. There is no testimony that the Central Pacific Railroad Company all this time made any claim to it at all, and the fact that the Central Pacific Railroad Company did not make any claim, is no evidence that these parties held it under it lind by agreeIrlent with it. The testimony all tends to show that these parties held, claiming by their own right, first the mining claims aE' taken up and conveyed to them under the laws of the United States, and afterwards under the patent issued in pursuance of those laws of the United States upon such claim. I instruct you that the title for a portion of the time unless granted to the railroad company was in the United States. lf it was in the United States, or believed to, be in the United States, it does not prevent the operation of the statute of limitations, if the claim was adverse to the Central Pacific Railroad Company. At least, the most that can be said is, that the matter was doubtful as to where the title was, and there was a good foundation for claiming that this was v.43F.no.3-16
!:242 .minerd, ilaJrid, and· excepted.· ,the, grant, so that Ii party could very well go; ,in there in good faith j buy a claim, located by some one else, and under the laws of the United States continue his,!lossession, claiming under that claim, present his cl!l;im for 11 patent to the. United States, obtain it, and 'continue. under it in. good faith. On that, question I will , read:you a passage from the ,decision in the case' of, Ha'J).e8 v. Martin, in 45 Cal. 568:, I\I\thich covers that exaot ground. "It is not (l'equisite that ,the party who relies on the statute should show that be claims his title in States."; These parties did; not claim in hostility,' but wentin under the ilaws ,Of the United States, and finally got a patent. "He may admit the title in the United States, either with or without a claim on his part, or the right to title,from the .United it is sufficient iihe has such possession as is required by:jhestatutej tl.nd claimsinhostiUtyitothe title wliichtheplaintiffestablishes in, the action." Id: AndthisdoctrinewastepeatedinMc}l1anus v. O'Sullivan; 48 Cal. 15. These parties 110t only admitted the title of the United StateB/Ji),utclaimed tberigbUo.enter,under their laws, and they ,claimed apatleutunder those laws :and gotit. They claim in hostility, -as faras therevidence shows; to the title oLtbis complainant. Thetes- . timony tends 'to show thattheirlpossession' commencedaaearly as 1882 'Of 1883,atthedatest.'Ihe testimony also ,tends .to shQW that tbe pos,session was cq:ptinuousunder' tbesefclaimsto a. part, ,with a claim to the whole,a.cool'ding;tothe boundaries of their deed, down to the commence',lfyoufind.thatrto bea fact,thebarof the,statute atta.ches,arid yQumustfiJi\d,a,general verdict for. tbe: !defenrlant,. and' a verdicHorJlle specialissuesubmitt!ld to .you. .lifyou finlHheydidnotj an" ;wele, napn continuous possession adverse ,to!tbis plaintiff tbattime,! andJt .was broken,' they have failed to maintain. the batltothe oflimitation. ' Gentlemen, tbis lsall· I think :itneeessary to say to you upon the subje('.t., ,you the issues;:l Tbe .first one yoUo will find for the Iphuntiffor <iefendant, as you fin.athe (lase .1 If you find for the :plaintiff, you !must find in, all the issues against!the de;endant, except the third.:. IfyOll find on anyone except the third against the plain:tiff; you must,find a generalvetdict fordefendant. .As:to the others you :will answer .((Yes, ' : or "No," according as you' fiad them to be. !
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. ,,' I : defendant,andtn answer to each ,of the special issues . ., . ' , . ' , f ': ·_ '. , ' · , , ' ,
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In reCHRIsTENSEN. (Oireutt Oourt, N.' D.' Oalifornia. September., 1890.) MumOIPALCORPORATI()Ns-ORDINANOES-CONSTITUTIONAL LAW.
A municipal ordinance, requiring all retail liquor dealers to procure a license, ma.k.ing it an offense to retail liquor without such license, and at the same time forbidding any such license to be issued unless upon the arbitrary, uncontrolled, written consent of ,a certain desill"nated number of persons, there being no other qllalificatiolls or conditions prescribed, violates the constitution of the United States, and is void. (S1/UUbus by the Oourt.) .
Petition. for Writ of Habeas Corym· .Alfred Clarke, for petitioner. Da11i8 Louderback, contra. BefQre SAWYER, Circuit Judge. SAWYER, J. lam always extremely desirous .of avoidinF; any interference with the state cOurts in the execution of the laws, or what purport . to be the laws of the state, and do not interfere when the circumstances are such that I can find it 'coasistellt with my duty to decline action, till the state courts have at least had an opportunity to act. In .& Parte RoyaU, 117 U. S. 241, 6 Sup. Ct. Rep. 734, the supreme court, while holding'that the circuit court had jurisdiction by writ of habeascorpm to take a prisoner out of the custody of the state courts at any stage of the proceeding, when alleged to be held in violation of the constitutionalld laws of the United States, and to summarily determine the case, further held, that where there were no special circumstances to influence its action, it had the discretion to decline to interfere till the state courts could try the cl1se, and even after trial and conviction, till an appeal or writ of error, where an appeal or writ of error lies,could be taken to the United States supreme court, and the con!'ititutionality of the law be there regularly determined in the ordinary course of judicial proceeding. ,·This decision gave to the circuit courts and judges, in such matters, a much wider discretion than I had before su pposed was vested in them. The petitioner in this case applied to me about a year ago for a writ of habeas CorpUB to discharge him from arrest the same ordinance now involved in this case. Acting upon the decision in Ex Parte Royall, I declined to issue tbewrit, not because I did not suppose it was otherwise a proper case for a writ, but because I saw no special circumstances in the oaseto require me to act at that time, and I therefore required him to go to the state courts for his remedy, and to punlUe it, as he .was entitled to do, by' the regular course of proceeding on writ of error to the United supreme court. The only difference to him would be in the channel through which he would reach. the .C9urtof last
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