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Kendall v. San Juan Silver Mining Co., 144 U.S. 658 (1892)

Kendall v. San Juan Silver Mining Company

No. 294

Submitted April 13, 1892

Decided April 25, 1892

144 U.S. 658


Intrusion upon and location of a mining claim within the territory set apart by the treaty proclaimed November 4, 1868, for the exclusive use and occupancy of the confederated bands of Ute Indians was forbidden thereby, and was inoperative to confer any rights upon the plaintiffs. Location of the same premises by others after extinguishment of the Indian title and prior to relocation of the former prohibited claim gave the right of possession.

The failure of the plaintiffs to record their location after extinguishment of such Indian title within the period prescribed by the laws of Colorado,

Page 144 U. S. 659

and until long after the premises had been properly located by others, forbids their claim of priority based upon a wrongful entry during the existence of the Indian Reservation.

Noonan v. Caledonia Mining Co., 121 U. S. 393, cited and distinguished.

This action was brought in a district court of Colorado to recover possession of a tract of mineral land, a part of what was known as the "Bear Lode." The plaintiffs claimed under a location made September 3, 1872. The land so located was at that time within the territory reserved for the use and occupancy of the Ute Indians. The Indian title was extinguished in March, 1874, and the defendant claimed under a location made August 29, 1874. The case was submitted on the pleadings and the following stipulation.

"The following stipulation is agreed upon by and between the parties, and testimony relating to the matters herein referred to is waived and may be dispensed with upon the hearing and trial."

"I. It is admitted that the 'Bear' lode was located Sept. 3rd, 1872, and was duly recorded as stated in the complaint. It is admitted by the defendant that all the averments in paragraph II of the complaint are true, excepting the averment that the Bear Lodge mining claim was at the date of its location 'a part of the public domain of the United States and unoccupied and unclaimed by any person and was open to entry as mineral lands,' and excepting further that if the locators of the Bear lode were entitled to make any such location whatever of said premises or any part thereof they were not entitled on Sept. 3rd, 1872, or any time prior to June 15th, 1874, to locate a claim exceeding fifty (50) feet in width, and defendant therefore denies that plaintiffs are entitled to more than 50 feet in width, if they are entitled to anything."

"It is further admitted that an additional certificate of location was filed, as stated in paragraph 5 of the complaint."

"It is also admitted that the plaintiffs are the proper persons to maintain this suit, and proof of chain of title and production of conveyances and records is dispensed with."

"It is further admitted that the allegations contained in paragraph 9 of plaintiffs' complaint are true. "

Page 144 U. S. 660

"II. It is further admitted that on the 29th day of August, A.D. 1874, A. H. Kallenberg, W. H. Wallace, and J. G. Jackson located the 'Titusville' lode, and plaintiffs admit that all the matters and things stated in paragraph 1 of second defense and answer are true, excepting the statement that said 'premises was then (Aug. 29th, 1874) a part and parcel of the unoccupied and unappropriated public domain of the United States,' which last averment plaintiffs do not admit."

"It is further admitted that since the respective locations of said 'Bear' and 'Titusville' lodes, each of the claimants and their grantors have duly done and performed the annual assessment work, and neither party shall be required to introduce testimony relating to the annual expenditures required by law."

"It is further agreed that the defendant named is the proper party defendant in this action, and that no proof of its chain of title to the 'Titusville' lode or the production of conveyances or records showing such title shall be required."

Judgment for the defendant, which was affirmed by the supreme court of the state. To the latter judgment this writ of error was sued out.

Page 144 U. S. 661

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