El Paso Brick Company v. McKnight

In proceedings brought by McKnight to try the right of possession to conflicting mining locations, it appeared that the defendant, the El Paso Brick Company, was in possession of the Aluminum, International, and Hortense claims, constituting what was known as the Aluminum group of placer mines. It held under locations made prior to January, 1903. In 1905 the company decided to apply for a patent to the land, which embraced about 411 acres. Accordingly, on August 2, 1905, it filed with the register of the land office at Las Cruces, Dona Ana county, New Mexico, an application for a patent, together with an affidavit (executed before an officer residing outside of the mining district) that notice of the application had been posted on the land. These papers were filed with the register, who gave the further notice required by statute. No protest or adverse claim was filed by any person. The Brick Company paid $1,027.50, being the purchase price fixed by Rev. Stat. § 2333, U.S.C.omp. Stat. 1901, p. 1433, and on October 23, 1905, the land officers allowed an entry on which the receiver issued a final receipt-the material portions of which were as follows:

United States Land Office at Las Cruces, N. Mexico.

October 23, 1905.

Received from the El Paso Brick Company, El Paso, Texas, the     sum of Ten hundred and twenty-seven and 50-100 dollars, the      same being payment in full for the area embraced in that      mining claim known as the 'Aluminum Placer Group' unsurveyed. . . embracing 410.90 acres     in the Brickland mining district, in the county of Dona Ana      and territory of New Mexico, as shown by the survey thereof.

$1,027.50. Henry D. Bowman, Receiver.

The entry and this final receipt prima facie entitled the company to a patent, which, however, was not issued because various parties filed protests with the land commissioner in which it was asserted that the Brick Company's locations were originally void, or if valid, had been forfeited. It was also contended that the company was not entitled to a patent because the affidavit showing the posting of the notice on the land had not been signed before an officer residing within the land district, as provided in Rev. Stat. § 2335, U.S.C.omp. Stat. 1901, p. 1435, which declares that 'all affidavits required to be made under this chapter [mining laws] may be verified before any officer authorized to administer oaths within the land district where the claims may be situated.'

Notice of these protests was given to the Brick Company, which was allowed sixty days within to show cause why the entry should not be canceled. 'In response, numerous affidavits and exhibits designed to overcome the objections were filed on behalf of the company,' among which was a 'supplementary affidavit with reference to such posting and such claim, which was in compliance with the laws of the United States, and was verified before a proper officer.'

On September 4, 1906, the commissioner ruled that the entry was fatally defective because the original affidavit as to posting had not been executed before an officer residing in the land district. From that ruling the Brick Company appealed.

There was a hearing before the Assistant Secretary of the Interior, who, on September 9, 1908, rendered a decision (37 Land Dec. 155) in which, after discussing the provisions of Rev. Stat. §§ 2325, 2335, U.S.C.omp. Stat. 1901, pp. 1429, 1435, and quoting from various rulings of the Land Department and courts, he held that the fact that the affidavit of posting had been signed before an officer residing outside of the district was a fatal defect, which invalidated the entire proceeding. Among other things, he said: 'The defect is not a mere irregularity which may be cured by the subsequent filing of a properly verified affidavit. The statutory provisions involved are mandatory. Their observance is among the essentials to the jurisdiction of the local officers to entertain the patent proceedings. The requisite statutory proof as to posting, not having been theretofore filed, the register was without authority to direct the publication of the notice or otherwise proceed, and the notice, although in fact published and posted, being without the necessary legal basis, was a nullity and ineffectual for any purpose. The patent proceedings, therefore, fall and the entry will be canceled.'

The record further recites that on November 24, 1908, the Brick Company waived its right to petition for a review of such decision and 'thereupon such decision and the cancelation of said entry became final and said entry was canceled on the records of the land office.' On the next day, November 25, 1908, the Brick Company filed at the local land office a second application for patent. McKnight thereupon filed an adverse claim in which he set up that the land described in the Brick Company's application embraced within its limits the Lulu and Agnes claims which had been located by him in April, 1905, and relocated in May, 1906, at which time he also located the Tip Top, Lynch, and Aurora claims. The patent proceedings in the local land office were stayed in order that McKnight might, as provided in Rev. Stat. § 2326, U.S.C.omp. Stat. 1901, p. 1430, bring a suit in a court of competent jurisdiction to try the right of possession.

On January 2, 1909, McKnight brought such suit in the district court of Dona Ana county, New Mexico. It was tried November 8, 1909, before a judge without a jury. At the hearing McKnight introduced the certificates of the locations described in his complaint, and evidence tending to show that he had done the required assessment work on his five claims. In support of his contention that the Brick Company had forfeited its rights, by failing to do the annual assessment work, the record recites that he offered 'certified copies of proof filed by the Brick Company in June, 1905, and December, 1906, for the purpose of showing, in connection with the testimony of the witness [the keeper of the county records] that there had been no satisfactory proof of labor filed for any year previous to 1906.' These certified copies consisted of affidavits by the president of the Brick Company that it had done more than $5,000 worth of work on its locations during each of the years 1903, 1904, and 1906. There was no ruling by the court limiting the effect of the affidavits as evidence, but it appears that McKnight contended that, as the names of the persons actually doing the work were not stated in the affidavit, and as the first of the affidavits was made in April, 1905, the burden of showing that the work had actually been done for 1903 and 1904 was cast on the Brick Company by virtue of the provisions of § 2315 of the Compiled Laws of New Mexico. The Brick Company, on

'Sec. 2315. The owner or owners of any unpatented mining claim in this territory, located under the laws of the United States and of this territory, shall, within sixty days from and after the time within which the assessment work required by law to be done upon such claim should have been done and performed, cause to be filed with the recorder of the county in which such mining claim is situated, an affidavit setting forth the time when such work was done, and the amount, character, and actual cost thereof, together with the name or names of the person or persons who performed such work; and such affidavit, when made and filed as herein provided, shall be prima facie evidence of the facts therein stated. The failure to make and file such affidavit as herein provided shall in any contest, suit, or proceedings touching the title to such claim, throw the burden of proof upon the owner or owners of such claim to show that such work has been done according to law.' the other hand, appears to have contended that this territorial statute was not only void as being in conflict with the Federal statutes, but that the affidavits offered by plaintiff showed on their face that many times the amount of assessment work required had been done in 1903, 1904, and 1906, thus segregating the land from the public domain and rendering McKnight's subsequent locations nugatory.

At the conclusion of the evidence the court took the case under advisement, and on December 17, 1909, rendered a judgment for McKnight which was affirmed (16 N. M. 721, —L.R.A.(N.S.) --, 120 Pac. 694, Ann. Cas. 1912D, 1309) by the supreme court of New Mexico. The case was then brought here on appeal.

Messrs. Francis W. Clements, Evans Browne, Alexander Britton, Aldis B. Browne, W. A. Hawkins, and John Franklin for appellant.

Mr. Eugene S. Ives for appellee.

Statement by Mr. Justice Lamar:

Mr. Justice Lamar, after making the foregoing statement, delivered the opinion of the court: