United States v. King , 9 Mont. 75 ( 1889 )

Blake, C. J.

The jury in this case returned a general verdict and special findings, which were approved and adopted by the court, and a decree was entered accordingly. A motion for a new trial was heard and sustained by the successor of the judge who tried the cause, and from this order the appeal has been taken. The action was commenced for the purpose of canceling and annulling a patent which had been issued by the United States to the respondents for the “Hesperus” lode mining claim. The complaint alleges, in substance, that the respondents did not discover any mineral lead, ledge, or vein of rock in place bearing gold or other metals, and did not perform labor or make any improvements on the Hesperus Claim of the Value of $500. These .constituted the main issues upon which the testimony was introduced. The transcript does not contain the reasons which influenced the action of the court below, but we have no difficulty at arriving at our decision. The highest court of the land has clearly defined the legal principles which govern this action. In Maxwell Land Grant Case, 121 U. S. 381, Mr. Justice Miller delivered the opinion, and said: “We take the general doctrine to be that when, in a court of equity, it is proposed to set aside, to annul, or to correct a written instrument for fraud or mistake in the execution of the instrument itself, the testimony on which this is done must be clear, unequivocal, and convincing, and that it cannot be done upon a bare preponderance of evidence which leaves the issue in doubt. If the proposition as thus laid down in the cases cited is sound 'in regard to the ordinary contracts of private individuals, how much more should it be observed where the attempt is to annul the grants, the patents, and other solemn evidences of title emanating from the government of the United States under its Official seal. In this class of cases, the respect due to a patent, the presumptions that all the preceding steps required by the law had been observed before its issue, the immense importance and necessity of the stability of titles dependent upon these official instruments, demand that the effort to set them aside, to annul them, or to correct mistakes in them, should only be successful when the allegations on which this is attempted are clearly stated, and folly sustained by proof. It is not to be admitted that the titles by which so much property in this country and so many rights are held, purporting to emanate from the authoritative action of the officers of the government, and, as in this case, under the seal and signature of the President of the United States himself, shall be dependent upon, the hazard of successful resistance to the whims and caprices of every person who chooses to attack them in a court of justice; but it should be well understood that only that class of evidence which commands respect, and that amount of it which produces conviction, shall make such an attempt successful.” This doctrine has been affirmed in other cases. (Colorado Coal Co. v. United States, 123 U. S. 307; United States v. San Jacinto Tin Co. 125 U. S. 273; United States v. Iron Silver Mining Co. 128 U. S. 673; United States v. Marshall Mining Co. 129 U. S. 579.) In Colorado Coal Co. v. United States, supra, Mr. Justice Matthews, in commenting upon the language of Mr. Justice Miller, supra, says: “ It thus appears that the title of the defendants rests upon the strongest presumptions of fact, which, although they may be rebutted, nevertheless can be overthrown only by full proofs to the contrary, clear, convincing, and unambiguous. The burden of producing these proofs, and establishing the conclusion to which they are directed, rests upon the government.”

The evidence is before us, and fails to be of the quality that is required upon the questions in dispute of the United States in similar proceedings. Since the trial of this case in the court below, the decision in United States v. Iron Silver Mining Co. supra, was announced, and eliminated the issue respecting the value of the labor and improvements upon the Hesperus Claim. This seems to have been the main ground relied on by the government; and while the testimony is conflicting, the jury found such value to be the sum of $377. The opinion by Mr. Justice Field is so plain as to render needless any further examination, and we cite this excerpt: “ The sufficiency of the work performed and improvements made upon each of the claims patented was shown by the certificate of the surveyor-general of the United States for the State in which the claims are situated. The statute makes his certificate evidence of that fact. (Rev. Stats. § 2325.) .... He was fully informed of the character and value of the labor performed, and improvements made, through his deputy, who had personally examined them, and estimated their cost, and also secured affidavits of others on that subject. Their sufficiency, both as to the amount and character, were matters to be determined by him from his own observation, or from the testimony of parties having knowledge of the subject; and in such cases, where there are no fraudulent representations to him respecting them by the patentee, his determination, unless corrected by the land department before patent issues, must be taken as conclusive. His estimate here, in both particulars, was subject to be examined by the department before the patents were issued; and any alleged error in it cannot afterwards be made ground for impeaching their validity.” There is no testimony that the patentees in this case made any misrepresentations to the officers of the United States. On the contrary, the answer sets forth that the surveyor-general of the United States for Montana took the evidence required by law, and considered the affidavits of the surveyors, chainmen, and other officers, and also of disinterested witnesses, and decided that the respondents had performed work and placed improvements upon the Hesperus Claim of the value of at least $500. The court sustained the motion of counsel for the appellant to strike out this averment as being immaterial; and it is now apparent from the recent decision of United States v. Iron Silver Mining Co. supra, that this ruling was erroneous.

It will be seen from a slight investigation that the evidence upon the remaining issue is not “clear, convincing, and unambiguous” for the United States. The complaint alleges that the tract in controversy, before the location of the Hesperus Claim, “was vacant mineral lands of the United States.” Michael Hickey filed an adverse claim during the period when the application of the respondents for a patent was being advertised; and among other findings by the jury is one that a mineral-bearing quartz vein was discovered by King et al. within the boundaries of the Hesperus Claim. There was also a contest with the owners of the Yellow Jack Claim; - and one of the witnesses for the appellant stated, on cross-examination, “ I have jumped this ground for a quartz claim.” These facts tend to prove that the Hesperus Claim was deemed valuable for mining purposes. It is not necessary to analyze the testimony, but it is sufficient to say that there is a substantial conflict upon this subject. The jury evidently acted upon the theory — which some expressions in the instructions appear to support — that the respondents were obliged to show that there was a reasonable probability that the Hesperus Claim would become a source of profit to constitute a mine, within the meaning of the statute. This matter is no longer debatable. In Iron Silver Mining Co. v. Cheesman, 116 U. S. 538, a charge of the court below was approved that embodied this definition: “ On the other hand, with well-defined boundaries, very slight evidence of ore within such boundaries will prove the existence of a lode. Such boundaries constitute a fissure; and if, in such fissure, ore is found, although at considerable intervals, and in small quantities, it is called a Code’ or ‘vein/” (See, also, Moxon v. Wilkinson, 2 Mont. 424; Foote v. National Mining Co. 2 Mont. 402; Freezer v. Sweeney, 8 Mont. 508; Overman Mining Co. v. Corcoran, 15 Nev. 147; North Mining Co. v. Orient Mining Co. 6 Sawy. 299.) When these authorities are applied to the evidence in the record, the result will be unfavorable to the appellant. The order of the court in sustaining the motion for a new trial is affirmed, with costs.

Liddell, J., and Bach, J., concur.