Shaw v. Kellogg

This was an action of ejectment brought in the circuit court of the United States for the district of Colorado on July 3, 1893, to recover possession of a certain tract in Saguache county, in the state of Colorado, described as follows:

'Section twenty-two (22), township one (1) north, one (1) east, according to the plat of said Baca Grant No. 4, as filed and recorded in the office of the county clerk and recorder of said Saguache county, and including in said section twenty-two, certain mineral-bearing property, designated by the defendant as the 'Eastern Star Mine,' with other mining lands adjacent thereto within said section twenty-two.'

After answer, a trial was had before a jury, which resulted in a verdict under instructions of the judge for defendant. Upon this verdict, judgment was entered, May 22, 1895. Thereupon the plaintiff sued out a writ of error from the circuit court of appeals for the Eighth circuit. On March 30, 1896, that court certified certain questions. Upon an examination of those questions, and after argument of counsel, this court, on December 22, 1897, ordered a certiorari to bring up the entire record, and upon such entire record the case was submitted for consideration.

The premises in question are within the limits of the so-called 'Baca Grant No. 4.' The plaintiff is the owner of that grant, and the question presented is as to the validity and extent of his title. Prior to the treaty of Guadalupe Hidalgo between Mexico and the United States, of date February 2, 1848, by which New Mexico and other territory in the southwest was ceded to this government, Mexico had made some quite extensive grants of tracts of land within the territory ceded. Since then congress has provided for the several portions of the ceded territory different modes of determining the validity and extent of those grants. By the act of July 22, 1854 (10 Stat. 308), the office of surveyor general for the territory of New Mexico was created; and, by section 8, it was made his duty to examine into all claims for lands within the limits of that territory, and to make full report thereof to congress. In pursuance of this authority, the surveyor general examined and reported upon various claims, and on June 21, 1860 (12 Stat. 71), congress passed an act confirming several of them. There were two opposing claimants for a large tract of land in the vicinity of the town of Las Vegas. In settling the dispute between them, congress enacted, in section 6:

'Sec. 6. And be it further enacted, that it shall be lawful for the heirs of Luis Maria Baca, who make claim to the said tract of land as is claimed by the town of Las Vegas, to select instead of the land claimed by them, an equal quantity of vacant land, not mineral, in the territory of New Mixico, to be located by them in square bodies, not exceeding five in number. And it shall be the duty of the surveyor general of New Mexico to make survey and location of the lands so selected by said heirs of Baca when thereunto required by them: provided, however, that the right hereby granted to said heirs of Baca shall continue in force during three years from the passage of this act, and no longer.'

On July 26, 1860, a letter of instructions was issued by the land department to the surveyor general of New Mexico in reference to these private land claims. In that letter, after directing a survey of the Las Vegas grant, and a determination of the area thereof, the instructions were as follows:

'The exact area of the Las Vegas town tract having been thus ascertained, the right will accrue to the Baca claimants to select a quantity equal to the area of the town tract elsewhere in New Mexico of vacant land, not mineral, in square bodies not exceeding five in number.

'You will furnish them with a certificate, transmitting at the same time a duplicate to this office, of their right and the area they are to select in five square parcels. Should they select in square forms according to the existing line of the public surveys, the matter may be properly disposed of by their application duly endorsed and signed with your certificate designating the parts selected by legal divisions or subdivisions, and so selected as to form five separate bodies in square form. Then the certificate thus endorsed is to be noted on the records of the register and receiver at Santa Fé, and sent on here by those officers for approval. Should the Baca claimants select outside of the existing surveys, they must give such distinct descriptions and connection with natural objects in their applications to be filed in your office as will enable the deputy surveyor, when he may reach the vicinity of such selections in the regular progress of the surveys, to have the selections adjusted as near as may be to the lines of the public surveys, which may hereafter be established in the region of those selections.

'In either case the final condition of the certificate to this office must be accompanied by a statement from yourself and register and receiver that the land is vacant, and not mineral.'

The survey made of the grant to the town of Las Vegas showed an acreage of 496,446.96 acres, a certificate of which fact was given to the heirs of said Baca.

On December 12, 1862, the following selection was filed with the surveyor general of New Mexico:

'Santa Fé, New Mexico, Dec. 12, 1862.

'To Surveyor General John A. Clark, Surveyor General of New Mexico: I, John S. Watts, attorney of the heirs of Luis Maria Baca, have this day selected, as one of the five locations belonging to the said heirs under the sixth section of the act of congress approved June 21, 1860, a tract of land in the territory of New Mexico, described as follows:

'Beginning at a point on the eastern edge of the valley of San Luis, where the thirty-eighth parallel of north latitude crosses the base of the snowy range, dividing the waters of the rivers Arkansas and Del Norte; thence east, along said parallel, four and one-half miles; thence south, along a meridian line, twelve miles, thirty-six (chains), and forty-four links distance; thence west, at a right angle, twelve miles, thirty-six chains, and forty-four links distance; thence north, to the said specified parallel of latitude; thence east, with said parallel, to the place of beginning.

'I further state that the said land is entirely vacant, not claimed by any one, is not mineral, but located for purposes of arable and pastoral agriculture, and is within the limits of the territory of New Mexico as established in the organic act. I hereby accordingly make application for the survey and location of the tract of land in accordance with the provisions of the above act of congress.

John S. Watts,

'Attorney for Heirs of Luis Maria Baca.'

Prior to this time, the territory of Colorado had been organized, and a portion of the territory of New Mexico included within its boundaries, and the land described in this application was within the territory thus included in Colorado. The surveyor general of New Mexico, on the receipt of this application, forwarded it to the land department at Washington, and also transmitted a copy to the surveyor general of Colorado. The surveyor general of Colorado, writing on February 24 1863, to the land department, informed it of the receipt of the copy above referred to, and at the close of his letter made this statement:

'I suppose this selection has been made by Ex-Governor Gilpin, as he told me last summer he was in possession of one of the Baca 'floats,' and should locate it as this is located, for the reason that, in his opinion, it would cover rich minerals in the mountains.'

In reply, the land department, on March 13, 1863, wrote as follows:

'It is necessary, before the application can be approved by this office, that it be accompanied by the certificates of the surveyor general and the register and receiver that the land selected is vacant, and not mineral. This is in accordance with our instructions to the surveyor general of New Mexico, extracts from which were furnished your office in our communication of June 7, 1862; especially should the character of the location as to minerals be carefully ascertained after the important statement of Ex-Governor Gilpin, which you communicatedi n your official letter to this office. Whenever you shall acquire good and satisfactory information that the lands included in this selection are vacant and not mineral, to enable you to do, you will transmit to this office your official certificate setting forth these facts.

'You will also correspond with the register and receiver of Colorado, when they enter upon their official duties, communicating to them the substance of this communication, and call upon them to furnish their certificate, when able, under the same conditions that your own is to be furnished under, which, when received, you will forward to this office.'

During the year 1863, Ex-Governor Gilpin, who had become the owner, or at least interested in this location, made application to the surveyor general of Colorado for a survey of the tract. As the land was beyond the limits of the public surveys then completed, the surveyor general made a contract with Deputy Surveyor A. Z. Sheldon for its survey, and forwarded the same to the land department for approval. On November 2, 1863, that office wrote to the surveyor general disapproving of the contract, and adding:

'In your letter dated the 10th March last, transmitting the application of the attorney of said heirs for the location of this claim, you say: 'I suppose this selection has been made by Ex-Governor Gilpin, as he told me last summer he was in possession of one of the Baca floats, and should locate it as this is located, for the reason that, in his opinion, it would cover rich minerals in the mountains.'

'Upon receipt of your letter, you were expressly informed, under date of the 13th March, 1863, that, before the application could be approved, it must be accompanied by the certificates of the surveyor general and the register and receiver that the land is vacant, and not mineral; and I then took occasion to communicate the following explicit instructions: 'Especially should the character of the locations as to minerals be carefully ascertained after the important statement of Ex-Governor Gilpin, which you communicate in your official letter to this office. Whenever you shall acquire good and satisfactory information that the lands included in the selection are vacant and not mineral, to enable you to do so, you will transmit to this office your official certificate setting forth these facts.' 'In our communication of the 7th June, 1862, you were also furnished with extracts from our instructions to the surveyor general of New Mexico, referring to the location of these claims, in which it was plainly indicated that, should selections be made outside of the existing surveys, the survey thereof must be postponed until the vicinity is reached by the regular progress of the public surveys. You will be guided in your official acts by our instructions, which are full and explicit, in relation to the location of the claims referred to. The contract and instructions for the survey of the abovementioned claim are herewith returned.'

On December 12th the surveyor general wrote to the land office a letter containing this statement:

'Sir: I have the honor to acknowledge the receipt of your letter of the 2d of November last disapproving of the contract for the survey of grant No. 4 of the floats belonging to the heirs of Luis Maria Baca.

'I herewith transmit my certificate that the lands are 'not mineral, and are vacant.' You refer to a letter of the former surveyor general of this district, in which he says that he supposes that this location was made by Mr. Gilpin 'for the reason that, in his opinion, it would cover rich mineral lands.' I do not believe that, at the time Mr. Case wrote that letter, he had the least idea that the float as located covered any mineral lands. I have signed the accompanying certificate partly from my own knowledge of the country, but mostly for the following reasons:

'(1) The discoveries of gold thus far go to show that the gold lands of Colorado commence at the base of Long's Peak, and extend in a course about 30° west of south to the headwaters of the San Juan, covering a belt of country about 30 miles in width, of which the line indicated will be near the western boundary. Outside of this no gold or silver lodes have been discovered.

'(2) The grant is located on the great line of travel between Denver and Santa Fé, and thousands of experienced miners have been traveling over the Sangre De Christo and Mosca passes, and have found no gold or other valuable minerals.

'(3) In the summer of 1860 a party of one hundred and fifty miners from here, under one Roeder, went to the San Luis Valley, and prospected the whole of the Sanger De Christo Range, but found no gold anywhere on the eastern run of the park. Many of the men who were in this expendition have been in my employ, and from them I have had this history of the expedition.

'Such are the grounds on which I have signed the certificate, and to me they are satisfactory.'

He inclosed in it certificates of himself and the register and receiver of the local land office in the following language:

'Denver, C. T., December 5, 1863.

'Sir: This is to certify that from good and sufficient evidence I am perfectly satisfied that the land on which the heirs of Luis Maria Baca have located their grant No. 4, in the San Luis Valley, and marked out by a survey made by Albinus Z. Sheldon, in November, 1863, is not mineral, and is vacant.

'Very truly, your ob't servant,

'John Pierce,

'Surveyor General of Colorado and Utah.'

'Colorado Territory, Golden City,

'December 5, 1863.

'Sir: This is to certify that from good and sufficient evidence we are perfectly satisfied that the land on whch the heirs of Luis Maria Baca have located their grant No. 4, in the San Luis Valley, and marked out by a survey made by Albinus Z. Sheldon, in November, 1863, is not mineral, and is vacant.

'G. N. Chilcott,

'Register Land Office, Colo. Dist.

'C. B. Clements,

'Receiver Land Office, Colo. Ty.'

To this letter the land office replied on January 16, 1864, stating:

'The evidence furnished by you is not sufficient, in the opinion of this office to prove that the selection No. 4 does not cover valuable mineral deposits. Your certificate is not based upon actual knowledge of the facts, but upon the information and conclusions deduced from reasoning. This kind of proof is not deemed sufficient when large public interests may be involved; and the character of the location is made still more doubtfuly by the statement of Ex-Governor Gilpin, officially communicated to this office by Surveyor General Case, that there are mineral lands in that locality.

'The statement of the register and receiver required in our instructions is also wanting.

'The approval of the selection will stand suspended until some satisfactory proof is obtained upon the points indicated.'

On February 12, 1864, the land office again wrote to the surveyor general the following letter:

'John Pierce, Esq., Surveyor General, Denver City, Colo.-Sir: I have considered your report of the 14th December last, respecting the survey made in November, 1863, by Deputy Surveyor Albinus Z. Sheldon, of what is known as the 'Luis Maria Baca Float,' in San Luis Park, in Colorado, and containing 92,293 acres.

'You transmit your certificate 'that the lands are not mineral and are vacant,' and state under specific heads 'the grounds on which' you 'have signed the certificate,' and which are satisfactory to you. You report further that 'the survey as made by Mr. Sheldon is probably as near perfect as can be made, as the mountains at the northeast corner of the grant are inaccessible at any time of the year.'

'The act of congress approved 21st June, 1860 (U.S. Statutes at Large, vol. 12, page 71, chap. 167), confers authority for the location of the said Baca float in the then territory of New Mexico, but now a part of Colorado territory.

'The said statute makes it the 'duty of the surveyor general of New Mexico,' now in your jui sdiction, 'to make survey and location of the lands so selected by the heirs of Baca when thereunto required by them,' with a proviso making a three-years limitation to the statute.

'You further report that you have refunded to Mr. Gilpin the money placed in your 'hands, and he has paid for the survey as a private survey, though he has permitted' you 'to make an abstract of the field notes which' you 'have placed on file in' the surveyor general's office.

'This part of the proceedings is irregular. Under statutory requirements, it is obligatory upon private claimants to pay for the survey of confirmed private claims; but the work must be done under the usual obligations and responsibilities both of deputies and surveyor general.

'The difficulty, however, may be avoided by pursuing the following course: The original field notes, duly verified and authenticated, must be filed in the surveyor general's office of Colorado upon bringing these to the usual satisfactory tests; and, finding the same all regular and correct, you are authorized, in virtue of the aforesaid sixth section of the said act of 21st June, 1860, to approve the said survey; but in your certificate of approval you will add the special reservation stipulated by the statute, but not to embrace mineral land nor to interfere with any other vested rights if such exist.

'The statute does not order the issue of a patent. The aforesaid law of 21st June, 1860, with your plat approved in the manner indicated, will therefore constitute the evidence of title.

'You will take care so to arrange the matter that hereafter when, in the gradual progress of the lines of the public surveys, they shall reach the Baca location, they shall be properly connected therewith, and so appear on the township plats.'

And, again, on February 26, 1864, the land office sent the following to the surveyor general:

'Sir: At the request of William Gilpin, Esq., I herewith transmit the following papers, to wit:

'First. Mr. Gilpin's application for the survey of grant No. 4 of the heirs of Baca, dated October 3, 1863.

'Second. Surveyor general's estimate of the cost of said survey, dated October 5, 1863.

'Third. Surveyor general's receipt for $600, deposited by Mr. Gilpin to pay for the above survey, October 6, 1863.

'Fourth. Certificate of the register and receiver at Golden City, Colorado, that the lands covered by the said grant No. 4 are not mineral, and are vacant, December 5, 1863.

'Fifth. The field notes of the boundary lines of the above grant, together with plat thereof.

'These papers were deposited in this office by Mr. Gilpin, and are transmitted to you for such action as you shall deem proper in the premises, in accordance with the views expressed in our communication to you, dated the 12th instant.'

Thereupon the field notes of the survey assistants were duly filed in the surveyor assistants were duly in the surveyor general's office, and approved by him, his certificate of approval being in these words:

'The foregoing field notes of the survey of grant No. 4, heirs of Luis Maria Baca, executed by Albinus Z. Sheldon, under his contract of the 7th day of October, 1863, having been critically examined, the necessary corrections and explanations made, the said field notes and the survey they describe are hereby approved.'

In the general description accompanying the field notes is this statement by the deputy surveyor:

'This grant contains every grade of land, from the most productive to the most sterile. La 'Trois Tetons' and the Chatillon Creeks have each rich bottom lands, from one-half of a mile to a mile in width, extending nearly to the mountains. About six miles from the mountains the bottoms rapidly widen until along the west boundary they become almost an unbroken savannah, thickly covered with grass, red-top and other varieties, some of which is five feet in height.

'The grant contains about forty thousand (40,000) acres which may be classed as first rate. The balance, excepting the sand hills in the southeast corner (about six square miles) and the extreme mountain portion (say, ten square miles), is good grazing land, and between the Chatillon and Arenas creeks affords a rich growth of grama grass.

'The Chatillon leaves the mountains at a point nearly equidistant between the north and south boundary lines, and runs in a due westerly direction until it is lost in the savannah above mentioned. These creeks are timbered about five miles. There is considerable good pine near the base of the mountains, and firs higher up. Along the streams are cottonwoods (sweet cottonwoods) of considerable size. There is no stone except in the vicinity of the mountains. These are composed mainly of a dense and fine-grained granite, varying to sienite and gneiss. Near their base is found a very compact conglomerate, parti-colored, and presenting more than the beauties of the mosaic art. Saw fragments of limestone (jurassic), but none in position. Saw no indications of the precious metals or minerals of any kind, unless the presence of iron may be inferred from the fluctuations of the needle, set forth in the notes.'

The map of the survey was also filed and approved by the surveyor general. The following is a copy of the map, with his certificate of approval:

On March 29, 1864, the surveyor general forwarded to the land office a transcript of the field notes and plat of the survey with his approval entered thereon, the receipt whereof was acknowledged by the land office in a letter of date May 4, 1864, which letter is as follows:

'John Pierce, Esq., Surveyor General, Denver City, C. T.-Sir: Your letter of March 29 last, transmitting transcript and field notes of the survey of grant No. 4, of the heirs of Luis Maria Baca, has been received at this office.'

These were all the proceedings had at the time in reference to the location, survey, and transfer of title of this grant.

Subsequently, and on January 14, 1868, application was made for a patent, and declined by the land office in these words:

'Sir: Referring to your application of 12th inst. for the issuing of patent for the tract of land in Colorado known as 'Beca Tract No. 4,' I have to state that the selection authorized by the sixth section of the act of 21st June, 1860 (Stats. vol. 12, page 72), has been made, and the survey executed and reported to this office; but, as no provision is made in the statute for the issuing of patent, the survey and statute are the only authorized evidences of title, this office having no authority to issue patents unless the statute expressly orders the same, which is not done in the Baca case, but 'that a grant may be made by a law as well as a patent pursuant to a law is undoubted [Fletcher v. Peck] 6 Cr. [Cranch] 128. A confirmation by a law is as fully, to all intents and purposes, a grant, as if it contained in terms a grant de novo."

Again, in March, 1879, a further application was made through the surveyor general of Colorado for a patent. This application was denied, and the commissioner of the general land office, in his letter declining to issue a patent, after reciting the history of the grant, stated:

'After the selection, but previous to the location, the commissioner of the general land office instructed the surveyor general of Colorado that, as the statute did not authorize the issuing of a patent, the act of June 21, 1860, and the plat approved by the surveyor general, would constitute the evidence of title.

'There is no doubt that the government may convey and vest the legal title without issuing a patent as effectually as may be done by patent. Larriviere v. Madegan, 1 Dillon, 455 [Fed. Cas. No. 8,096]; Grignon v. Astor, 2 Howard, 319; 3 Opinions of Atty. Gen. 350.

'The surveyor general was authorized by the act to locate only vacant nonmineral land. Unless the contrary appeared, it would be presumed from the act of locating that the surveyor general determined the land was not mineral. But, before locating the surveyor general had expressly found and certified that this land was not mineral.

'It is now alleged that the land is mineral; that the surveyor general approved the plat of survey 'subject to the conditions and provisions of section six of the act of congress approved June 21, 1860'; and that, therefore, the grantees cannot hold the land under that act.

'The conditions and provisions of the act of June 21, 1860, were, as respects this question, that the selection and location should be on land determined at the time of such location, when the title passed, to be nonmineral land.

'The act did not intend that if, at any subsequent time in the remote future, mineral should be discovered, the title should be unsettled, or that the title should be the subject of controversy through all time, as often as any one might choose to allege its mineral character.

'The surveyor general did not undertake, and had no power, to impose conditions not in the act.

'If, after fifteen years, the question as to the mineral character of the land may be reopened, why may it not be raised again after the lapse of any number of years? If the question may be reopened as to the land granted under the provisions of the act of June 21, 1860, why may it not as to land acquired under the homestead, pre-emption, and other acts of congress? Would such titles ever be considered secure?

'The question as to the mineral or nonmineral character of this land has been passed upon by competent authority. The title has passed from the government, and vested in private individuals. This office has no authority to reopen the question. The land cannot longer be regarded as a part of the public domain.

'Mr. Gilpin, who claims this tract of land as the assignee of the Baca heirs, makes personal application for a patent. It is not claimed that the granting act authorized a patent to issue, but that it is authorized by section two of the act approved March 3, 1869 (15 Stat. 342), and by section 2447, Rev. Stat. U.S. But those provisions authorize patent to issue only when claims to land have been confirmed by law; that is, where an act of congress recognizes a claim to specific land, and does not apply to cases where the acts of congress only authorize a claim to be made thereafter to land, without regard to any specific tract or parcel of land. This office can issue patents only where it is authorized by some act of congress. The application of Mr. Gilpin for a patent must therefore be refused.'

Subsequently, and on June 28, 1884, in response to inquiries as to whether prospectors would be allowed to hold any mineral discoveries made on said location, the land office replied as follows:

'In the case of location No. 4, in question, the surveyor general having first ascertained and determined that the land selected was vacant and nonmineral, surveyed and located it, and approved the plat of the location, March 18, 1864; and this approved plat, in the absence of any provision of law for the issuing of patent, became the evidence of title in the owner of the land so located.

'On a subsequent application by Governor Gilpin for a patent, it was contended, before this office, that mineral existed in some part of the location, and therefore the grantee could not hold the land under the act. The matter was fully considered, and the following conclusions reached:

'The conditions and provisions of the act of June 21, 1860, were, as respects this question, that the selection and location should be on land determined, at the time of such location, when title passed, and to be nonmineral.

'The act did not intend that if at any subsequent time, in the remote future, mineral should be discovered, the title should be unsettled, or that the title should be the subject of controversy through all time, as often as one might choose to allege its mineral character.

'The surveyor general did not undertake, and had no power, to impose conditions not in the act.

'The question as to the mineral or nonmineral character of the land has been passed upon by competent authority. The title has passed from the government, and vested in private individuals, and this office has no authority to reopen the question. The land can no longer be regarded as a part of the public domain.

'You will see by the foregoing that the land in question was determined, in 1864, by the surveyor general, whose province and duty it was, to be nonmineral; the location was then perfected and the title passed. Whether prospectors will be allowed to hold any mineral discoveries thereon, prior to or since 1880, must probably rest between them and the holders of the location No. 4.'

And, again, on June 8, 1889, in response to a similar application, the acting commissioner replied as follows:

'In determining the various questions involved in the case, this office, on March 21, 1879, decided that the character of the land involved had already been determined, and the matter, therefore, was res adjudicata.

'The question as to the mineral or nonmineral character of this land has been passed upon by competent authority. The title has passed from the government, and vested in private individuals. This office has no authority to reopen the question. The land can no longer be regarded as a part of the public domain, & c.

'The case has therefore become final so far as this office is concerned.'

In the annual report of the surveyor general of Colorado of the proceedings of his office, dated October 1, 1864, which was transmitted to congress in the report of the secretary of the interior for 1864, it is stated:

'During the month of November, 1863, Deputy Surveyor A. Z. Sheldon made a survey of grant No. 4 of the heirs of Luis Maria Baca, as located by William Gilpin, attorney for said heirs, under the act of June 21, 1860. The survey was made under the usual guaranty of its accuracy, and the field notes returned to this office for approval. Under instructions from the general land office dated February 12, 1864, that survey and location were approved, subject to the conditions and restrictions above referred to.'

And in the report of the commissioner of the general land office of the same year, and included in the same report to congress, it is also stated:

'In Colorado territory the returns of surveys for the last fiscal year consist of correction, parallel, township, and sectional lines, with fifty miles of private grant, embracing over 431,000 acres of public lands; also, 92,292 acres in the fourth location of the Las Vegas grant, as confirmed by the act of 21st June, 1860, to the heirs of Luis Maria Baca, the premises formerly falling within the limits of New Mexico, but now of Colorado.'

In the same volume is found a map accompanying the report of the secretary of the interior, which shows Baca grant No. 4 segregated from the public domain, and it was admitted by counsel that all government maps issued from that time to this make a similar showing of the segregation of this tract.

The plaintiff and those under whom he claims have been in continuous and actual possession of this Baca grant No. 4 since, at least, 1869. In 1881 a fence was built entirely around the tract, except for a little distance in the northeast corner, where the precipitous character of the mountains created a natural fence, and from that date onward to the present time it has remained under inclosure; and the plaintiff and his grantors have paid the annual taxes levied thereon by the state of Colorado, amounting, since the year 1877, to $66,000.

In 1876 Francois Herard and two associates discovered a mineral vein, which they named the 'Eastern Star'; and on June 16th of that year filed a certificate of location in the proper office; but in 1877, upon ascertaining that this mineral location was within the limits of the Baca grant, they abandoned the mine. In 1879 the owners of the grant leased this mine to one William Young, but he immediately thereafter threw up the lease. In 1883 the mine was again leased to the Gold Legion Mining & Milling Company, but this company soon abandoned the lease. In 1887 the defendant took a verbal lease from the manager of the grant for three months, at the expiration of which time be sought a renewal of the lease, but was refused. Subsequently to this refusal, he took possession of the property, and has remained in such possession ever since. And it is this mine, with the adjacent ground, the possession of which was sought to be recovered by this action.

E. O. Wolcott and Joel F. Vaile, for plaintiff in error.

John R. Smith, for defendant in error.Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.