French v. Lancaster , 2 Dakota 346 ( 1880 )

This action was tried in the Lawrence county District Court to a jury and a verdict and judgment rendered and entered for the plaintiffs for the possession of the mining ground in controversy and for $15,706 damages. No opinion has been written in the case, Judge Barnes, to whom it was assigned, having gone out of office before the opinion was prepared. In the decision, the same principle was applied to the mineral lands in controversy, situated in the Black Hills, as was decided with reference to the real property in the case of ühlig v. Garrison, ante. The Court held that no title to mining ground could there be acquired by acts of location or appropriation done prior to the 28th day of February, 1877, and while the great Sioux Indian Reservation covered that district of country. That this action having been tried to a jury and a general verdict rendered, without regard to the existence of said reservation, and upon the theory that such reservation did not affect the question between these parties, it was a mistrial, notwithstanding the parties had stipulated thus to try the action; public policy requiring the Court to take notice of the facts, even though parties might stipulate to the contrary. Associate Justice Moody dissented upon the ground that the parties having stipulated in writing to waive all objections that might have been taken to evidence of acts of location and appropriation prior to February 28th, 1877, and to try the ease as though no such reservation had ever existed, they were now precluded from raising the question for the first time in this court; but he agreed with the majority of the court upon the general proposition that no rights could be acquired in that district of country while the reservation covered the same.

Judgment below reversed.