Deffeback v. Hawke

This is an action to recover a parcel of mineral land, situated in the county of Lawrence, in the territory of Dakota, claimed by the plaintiff under a patent of the United States bearing date on the thirty-first of January, 1882. The complaint alleges that on the twentieth of November, 1877, the plaintiff, being in the actual, peaceable, and exclusive possession of the premises, filed his application in the United States land-office at Deadwood, in that county and territory, to enter the land as a placer mining claim; that on the thirty-first of January, 1878, he entered the same and paid the government price therefor, and that on the thirty-first of January, 1882, a patent of the United States, conveying a fee-simple title to the land, was executed and delivered to him, the land being described as mineral entry No. 8, and mineral lot No. 53; that while thus the owner and in possession of the premises, the defendant, on or about the first of July, 1878, with full notice of the plaintiff's title, unlawfully and wrongfully entered upon a portion of the premises, which is particularly described, and ousted the plaintiff therefrom, and has ever since withheld the possession thereof, to his damage of $500. The complaint also alleges that the value of the rents and profits of the premises from the entry of the defendant has been $800; and it prays judgment for the possession of the premises, for the damages sustained, and for the rents and profits lost.

To the complaint the defendant put in an answer, admitting that on the twentieth of November, 1877, the plaintiff filed in the United States land-office his application for a patent of the placer mining claim, described as mineral lot No. 53; that it includes the premises in controversy; and that on the thirty-first of January, 1878, the plaintiff paid to the receiver of the land-office the price of the land per acre, and received from the register and the receiver a certificate or receipt therefor, which payment and receipt are commonly called an entry. The answer also contains two special pleas by way of counter-claim, upon which affirmative relief is asked, namely: that the plaintiff be decreed to be a trustee of the premises for the defendant, and be directed to convey them, or an interest in them, to him, or to allow to him compensation for improvements thereon. In the first of these it sets up various matters as grounds to charge the plaintiff as trustee of the premises for the defendant. In the second special plea it alleges improvements made upon the premises, either by the defendant or his grantor, as a ground for compensation under the statute of the territory.

In the first special plea the answer avers substantially as follows: That on the twenty-eighth of February, 1877, the day on which the treaty with the Sioux Indians was ratified, by which the lands in Lawrence county were first opened to settlement and occupation, the land included in mineral lot No. 53, together with a large amount of other land in its immediate vicinity, was appropriated, set apart, and occupied for town-site purposes, and, as such, was surveyed and laid out into lots, blocks, streets, and alleys, for municipal purposes and trade, and was then, and has ever since been, known and called the town of Deadwood; that the town then contained a population of 2,000 inhabitants, and about 500 buildings, used as residences or for business, and not for agriculture; that the town was then, and has ever since been, the center of trade and business west of the Missouri river in the territory of Dakota, and, at the commencement of this action, contained a population of about 3,000 inhabitants, and buildings and improvements of the value of about a million of dollars; that the land in controversy was one of the lots originally laid out and occupied for town-site purposes, and has always been thus occupied by the defendant or his grantors, with the buildings and improvements thereon, for the purpose of business and trade and not for agriculture; that the placer mining claim, for which the plaintiff filed his application for a patent, as alleged in the complaint, was not located or claimed by him or any other person until after the selection, settlement upon, adn appropriation of that and adjacent lands for town-site purposes; and that on the twenty-ninth of July, 1878, the town of Deadwood being unincorporated, the probate judge of Lawrence county entered, at the local land-office, the said town-site, paid the government price therefor, and received from its officers a receipt for the money and a certificate showing the entry and purchase by him in trust for the use and benefit of the occupants, including the defendant; and that such town-site embrances the land covered by the plaintiff's patent.

The answer further alleges, in substance, that thereafter, on the tenth of April, 1879, the commissioner of the general land-office at Washington ordered a hearing before the land-office in Deadwood, between the plaintiff and the probate judge, as trustee for occupants of the town-site, as to the character of the land for mineral purposes; at which hearing it was not disputed that the defendant and other occupants of town lots in Deadwood were the prior appropriators of the land; but the commissioner refused to allow the consideration of any other fact than the mineral character of the land, holding as a proposition of law, decisive of and controlling the case and the rights of the parties, that the only question of fact that could be considered was the mineral or non-mineral character of the land, and that the fact of the prior occupation and appropriation of the land for town-site purposes did not confer any right upon the occupants; that the register and the receiver followed these instructions and decided the controversy solely upon the ground of the mineral character of the land; that their decision, upon appeal to the commissioner of the general land-office, and thence to the secretary of the interior, was affirmed, and those officers, the commissioner and the secretary, awarded the land, with the improvements thereon, to the plaintiff, and refused to patent the same, or any interest therein, to the said probate judge, or to the defendant, but canceled the entry of the judge, and directed and caused the patent mentioned in the complaint to be issued to the plaintiff; whereas the defendant insists that the patent should have contained an exception or reservation excluding from its operation all town property, and all houses, buildings, lots, blocks, streets, and alleys, and other improvements on the land, not belonging to the plaintiff, and all rights necessary or proper to the occupation, possession, and enjoyment of the same; that the decision of the commissioner and the secretary in awarding the property to the plaintiff, and refusing to recognize or protect the prior rights of the defendant and other occupants of the town, was contrary to law, and an erroneous construction thereof; and that, therefore, the plaintiff, by reason of his patent, holds the land in controversy, and the buildings and improvements thereon, in trust for the defendant, all of which should be conveyed to him, he offering to pay his just proportion of the legal expenses of procuring the patent.

In the second special plea the answer sets up that on the twenty-eighth day of February, 1877, one Henry B. Beaman, being one of the occupants of the town-site, was in the peaceable and lawful possession of the premises in controversy, with a building and other improvements thereon, and that, from that time until his conveyance to the defendant, he remained in the continuous occupation thereof, using the same as a town lot for business and trade, claiming title thereto in good faith against all persons, except the United States, and claiming the right to acquire the title from the United States as a town lot; that thereafter the said Beaman sold and conveyed the premises to the defendant, who purchased them in good faith, and, before the plaintiff acquired any title thereto, made permanent improvements thereon of the value of $1,300, and that the value of the land itself without the improvements would not exceed $100.

The answer concludes with a prayer that the plaintiff take nothing by his suit, and be decreed to convey to the defendant the premises in controversy, excepting and reserving to himself the right to mine and extract the precious metals from them, provided, in so doing, he shall not materially injure, endanger, or interfere with the buildings and improvements thereon and the necessary use and enjoyment of them by the defendant; and that, in the event it should be determined that the plaintiff is the owner of and entitled to the possession of the premises, then the value of the improvements thereon be specifically found, and the defendant have judgment for the same; and for such other and further relief as may be just, with costs.

To each of the special pleas of the answer the plaintiff interposed a general demurrer, on the ground that it did not state facts sufficient to constitute a defense to the action nor a counter-claim in the defendant's favor against him, which was sustained, with leave to the defendant to file an amended answer. The defendant refused to amend, and elected to stand on his pleadings. Judgment was therefore entered for the plaintiff. On appeal to the supreme court of the territory, the judgment was affirmed, and the case is brought to this court on appeal.

G. C. Moody, for appellant.

[Argument of Counsel from pages 397-400 intentionally omitted]

A. J. Plowman, for appellee.

FIELD, J.