Kendall v. San Juan Silver Min. Co. , 9 Colo. 349 ( 1886 )

Beck, C. J.

The appellants assigned for error the allowance of the motion for judgment on the pleadings, stipulation of-facts and disclaimer; also that the court erred in rendering judgment in favor of the appellee. The grounds of error alleged are that the stipulation of facts and the disclaimer were not instruments in the nature of pleadings, but matters only cognizable as ■ evidence; hence that they could not be properly considered upon a motion, but only on a trial of the issues joined.

We are of the opinion that this proposition is unsound. One of the most important objects of the present system of pleading is to compel the parties to make their issues cover the real facts.in dispute, so that neither party shall be subjected to the trouble and expense of proving what is not in fact disputed. It requires that the real matter in controversy shall be brought clearly before the court, and that the precise points, both of fact and of law, involved, shall be disclosed before the trial is entered upon. Another advantage claimed is that it may be known, from an inspection of the respective statements of the parties, whether, if duly proven, they warrant' any relief upon the complaint or cross-complaint, and whether there be a legal defense to the action. It is true, by the original pleadings in this case, the objects sought to be attained by the code provisions were defeated; for the pleadings of each party denied every allegation of the other, regardless of truth, with one or two immaterial exceptions. But the filing of the stipulation of facts operated as a waiver of the numerous traverses, and narrowed the issues to three questions of law and fact. These questions were: First. Was the territory in dispute open to location as mineral land, under the law’s of the United States, on the 3d day of September, 1812? Second. If it was open to location at that date, w^ere the plaintiffs then entitled, under the law, to locate a claim exceeding fifty feet in width? Third. Were the premises on the 29th day of August, 1814, when the defendant’s location wras made, a part of the unappropriated public domain, open to location as mineral land?

The position assumed by appellants’ counsel is that the issues were not modified by the filing of these papers, but remained for trial as originally framed; that the court could not take judicial notice of instruments or. papers of this character, waiving legal rights, although executed by the parties themselves, and duly filed in the cause, but that the issues thus attempted to be waived should have been disposed of on trial of the cause, by producing the said stipulations in evidence. The fallacy of these propositions is apparent. The filing of the stipulation and disclaimer wholly withdrew the matters therein mentioned, as being conceded or waived, from the consideration of the trial court. These matters were no longer in the case. Thereafter all the allegations concerning the location of the Bear and Titusville lode claims, the dates of locations, the expenditures made, the work done, and the various acts performed in compliance with the mining laws, and with the local rules and regulations, stood untraversed. There remained no issues for trial requiring the production of evidence; and it would have been an idle ceremony to have impaneled a jury to witness the disposition of the case by the presiding judge upon considerations of -law and fact whereof he was bound to take judicial notice.

It is true the complaint alleged that at the date of the location of the Bear lode, September 3, 1872, the premises in controversy were unoccupied and unclaimed mineral lands of the public domain; that the answer alleged that the premises, at that time, comprised a part of a certain tract of land set apart as a reservation for the confederated bands'of the Ute Indian Nation by virtue of a treaty made and concluded between the United States and said Indian tribes, duly accepted and ratified and confirmed by a proclamation of the president of the United States issued on the 6th day of November, 1868; that the Indian title to said reservation, including the premises in controversy, was not extinguished until the 1 month of March, 187é; and that on the 29th day of August, 1871, the date of the appellee’s location of the premises in controversy as part of the Titusville lode claim, the same was then a part of the unoccupied and unappropriated mineral domain of the United States; also that the replication denied these averments of the answer. It is likewise true that the issuable facts just mentioned were not in any manner affected by the making and filing of the stipulations. But all the facts involved in these issues were of that character, the existence of which courts are bound to take judicial cognizance. The ultimate rights of the parties, therefore, depended upon judicial conclusions to be drawn from a consideration of all truthful allegations of fact, whether traversed or untraversed, in connection with the implied propositions of law necessarily arising out of these several propositions of fact.

For example, although the plaintiffs, in the location of the Bear lode, performed every act necessary to constitute a valid location of a mining claim, yet, if the territory upon which these acts were performed did not comprise a portion of the unappropriated public domain open to location as mineral land, the work done and expenditures made secured no rights to the locators thereof. The question of right depends upon the truth of the allegations concerning the existence, date, boundaries, and terms of the original treaty with the Indians, and -the truth of the allegations concerning the alleged relinquishment of the Indian title to that portion thereof which includes the premises in controversy, considered with reference to the law arising upon such facts. As before stated, these were matters concerning which the courts take judicial notice. The treaties mentioned were incorporated, with the laws enacted by congress, in'the Statutes at Large of the United States. See St. at Large U. S. 1868, tit. “Treaties,” p. 119; also 18 St. at Large, pt. 3, p. 36. The accepted doctrine is that the constitution and laws of the United States, and all treaties made under the authority of the United States, constitute the supreme laws .of the land; and the judges in every state are bound thereby, and will take judicial notice of their provisions. Article 6, § 2, Const. U. S.; 1 Greenl. Ev. §§ 5, 490; Bliss, Code Pl. § 185. Courts also take judicial cognizance of the civil divisions within a staté; of counties, townships and towns; and of the existence ' and general location of places referred to in the pleadings, and, if within the jurisdiction of the court, the county to which they belong. Bliss, Code Pl. §§ 186-189. Exercising such cognizance, the court had judicial knowledge that the contested facts were as alleged in the defendant’s answer; that is to say, at the time of the plaintiffs’ location of the Bear lode claim the ground claimed was within the Indian reservation, but that the Indian title thereto had been extinguished prior to the location of the Titusville lode by the defendant. All propositions of fact bearing upon the case were therefore legitimately before the court on the motion for judgment, and it only remained,for the court to construe the propositions of law arising thereon in order to pro- - nounce judgment. The real issues, then, or questions to be decided, being purely legal, it was unnecessary to assign the cause for trial, and they were properly decided on the defendant’s motion for judgment. -

Was the plaintiff entitled to judgment for any portion of the premises in controversy? It is clear that, unless a valid location of a mining claim can be made upon territory while it constitutes part of a reservation set apart by treaty for the exclusive use of an Indian nation, the plaintiff acquired no rights whatever by his location of September 3, 1872; and this is the only location asserted by him.

By the treaty proclaimed November 6, 1868, the United States solemnly agreed that the district of country therein described “shall be and the same is hereby set apart for the absolute and undisturbed use and occupation of the Indians herein named; * * * and the United States now solemnly agree that no persons except those herein authorized so to do, and except such officers, agents and employees of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article, except as in this article herein otherwise provided.” There is no provision excepting any part of the territory included within the bounds of the reservation for occupation or location for agricultural or mining purposes by white persons.

It has been decided by the supreme court of the United States that, in the prosecution of an adverse claim to a mineral location, the plaintiff must show such a location as entitles him to possession of the ground claimed as against the United States, as well as against the other claimant; that if it is not valid as against the one, it is not as against the other; and that he must establish a possessory title in himself, good as against everybody. Gwillim v. Donnelan, 115 U. S. 45.

The effect of the treaty was to withdraw the whole of the land embraced within the reservation from private entry or appropriation, and during its existence the government could not have authorized the plaintiffs to enter upon the ground in controversy for the purposes of discovering and locating a mining claim. On the contrary, the government stood pledged to prevent its citizens from entering upon the reservation for any such purposes. The right to locate mineral lands of the. United States is declared to be a privilege granted by congress. No such grant including the premises in controversy existed at the time of the plaintiffs’ location. It is also held that a location, to be effective, must be good at the time it was made, and that it cannot be good when made if there is then an outstanding grant of the exclusive right of possession to another. The possession of the plaintiffs at the time of their location of the Bear lode was tortious. Such being the character of their possession, and assuming to locate a claim not only without legal authority, but in violation of law, the attempted location was a nullity. It was just as if it had never been made. United States v. Carpenter, 111 U. S. 347; Belk v. Meagher, 104 U. S. 279.

The foregoing objections do not attach to the defendant’s location of the Titusville lode. This location, made after the Indian title was extinguished, was conceded to be regular in all respects, save as to the defendant’s allegation that the premises comprised a part of the unappropriated public domain open to location as mineral land. This allegation was traversed merely, the only effect of which was to assert priority of appropriation by the plaintiffs. The plaintiffs’ claims having failed, the judgment of the court was correct. Judgment affirmed.

Affirmed.