Elder v. Horseshoe Mining Milling Company/Opinion of the Court

The Federal questions which arise in this case are based upon the statute of the United States already referred to in the foregoing statement of facts, being § 2324 of the Revised Statutes, the material portion of which is set forth in the margin.

The plaintiffs in error contend that the notices published by or in behalf of the defendants in error were not a compliance with the statute, because of the manner in which they were addressed. They also insist that, even assuming the sufficiency of the notices, they were not published in accordance with the requirements of the statute for a sufficient length of time, and that, therefore, the title of the plaintiffs in error was not devested. We are not impressed with the validity of either of the two objections.

As to the first. The notice was addressed as follows: 'To Rufus Wilsey, his heirs, administrators, and to all whom it may concern.' The objection made is that at the time when this notice was published, Rufus Wilsey was dead, and there was no administrator then existing, and the names of the heirs were not given, and the notice, 'to whom it may concern,' was futile.

The statute, it will be observed, does not require that the published notice in regard to a deceased co-owner shall be directed to anyone by name. Upon the failure of a co-owner to contribute his proportion of the expenditure required under the section, the co-owner who has performed the labor or made the improvements may, as provided for by the section at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, and if, at the expiration of ninety days after such notice in writing, or by publication, the delinquent refuses to contribute his proportion or fails to do so, his interest in the claim thereby becomes the property of his co-owners who have made the required expenditures. We perceive no possible harm arising from the fact that the notice itself, containing all the facts necessary to be included therein, was addressed to 'Rufus Wilsey, his heirs, administrators, and to whom it may concern.' The fact that Rufus Wilsey was dead was not material so far as to thereby render the notice to his heirs illegel or insufficient. It certainly did them no harm to include the name of Rufus Wilsey, and the notice was quite as likely to become known to them as if it had been addressed 'to the heirs of Rufus Wilsey, deceased, his administrators, and to all whom it may concern.' It is entirely unlike the publication of a summons for the purpose of commencing an action against a particular individual or individuals. There the identification must be complete and the person particularly described and named, so that when the publication has been finished it can be known that the particular individual has been served with process by publication with the same effect as if it had been personally served on the same individual without publication. This statute provides a summary method for the purpose of insuring the proper contribution of co-owners among themselves in the working of the mine, and it provides a means by which a delinquent co-owner may be compelled to contribute his share, under the penalty of losing his right and title in the property because of such failure. It was not necessary, in our judgment, that the notice should specifically name the heirs of the deceased owner. The act does not require it. If the notice be such that the former owner is particularly named and identified thereby, and his heirs are notified by the publication, it is a sufficient notice to them for the purpose of making it necessary for them to comply with the terms of the statute within the time designated therein by the payment of their share of the expenses of working the mine, or else to loss their right, title, and interest therein. The co-owner who did the work might not know who the heirs were, and it might be impossible for him to learn their names or whereabouts, and the statute never contemplated that the man who did the work should be prevented from obtaining the benefit of the statute by his inability to learn who the heirs were and where they lived. A general address to the heirs of the person named, and the proper publication of the notice, is sufficient. It did not become insufficient because, in addition to being addressed to them, it was also addressed to their intestate by name. An address to a deceased person did them no harm, so long as it was also addressed to them.

The supreme court of South Dakota has held in this case that at the time this notice was published the title to a one-half interest in this claim was in the heirs, subject to a possible lien of the administrator for administration purposes, and had been since the death of Wilsey. 9 S. D. 636, 642, 70 N. W. 1060. The same court has held that an administrator has but a lien on real estate for administrative purposes, and that the title vests in the heirs. (Cases cited in opinion of the state court.) The only debt, so far as the record shows, existing against the estate of Wilsey, was one for $50, in favor of Stevens, who was appointed administrator in 1881, and died in 1888, and from then until 1893 there was no administrator, the present one being appointed evidently for the purpose of this suit. The actual title to the fee is in the government (Black v. Elkhorn Min, Co. 163 U.S. 445, 449, 41 L. ed. 221, 223, 16 Sup. Ct. Rep. 1101), but the interest of the miner may be conveyed and inherited. (Id. Id.) We are of opinion that the publication of the notice was sufficient, although there was no administrator at the time of publication. It is unnecessary under this statute to publish a notice to lienors. We agree with the supreme court of the state that the evident purpose and object of the law of 1872 (§ 2324) were to encourage the exploration and development of the mineral lands of the United States, and the sale of the same, and that, all the provisions of the law having been framed with that object in view, if the required work is not performed, after the expiration of the year, and notice of contribution properly served or sufficiently published, the rights of delinquents are absolutely cut off, though the failure to do the work may have been caused by the death of the locator or locators during the year. When a notice has been rightfully published under the statute it becomes effective in cutting off the claims of all parties, and the title is thus kept clear and free from uncertainty and doubt.

There was no irregularity in grouping in one notice claims for more than one year's expenditures. We can perceive no reason why a consolidation of the claims of several years should not be made and included in one and the same notice.

(2.) The objection to the sufficiency of the publication of the notice we regard as equally unfounded. The statute provides for a publication 'for at least once a week for ninety days.' The publication was in fact made every day, except Sunday, in the proper newspaper, beginning Monday, January 7, 1889, and concluding Tuesday, April 2, 1889. And the statute provides that if, after the expiration of ninety days after such notice in writing or publication, such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his coowners who have made the required expenditures. The publication, we think, was sufficient. The ninety-day period begins with the first publication; in this case, Monday, January 7. The publication on that day was sufficient for the week then beginning. The publication on January 15, was sufficient for that week, and, as stated by the supreme court of South Dakota: 'Each succeeding Monday would certainly constitute at least one publication each week while so continued. There was a publication on each Monday from January 7 to April 1, both inclusive. If no publication was required after the first until the following Monday, none was required after April 1 until the following Monday, April 8, and on that day the period of ninety days had been completed. Including the first day of publication, ninety days ended on Saturday, April 6. Excluding the first day, ninety days ended on Sunday, April 7. On that day the required notice had continued during ninety days, and another publication on Monday, April 8, was wholly unnecessary.'

We are satisfied that this construction is the correct one, and the publication was, therefore, made for a sufficient length of time to comply with the statute.

The judgment of the Supreme Court of South Dakota is affirmed.