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SPARROW V. STRONG, 70 U. S. 97 (1865)

U.S. Supreme Court

Sparrow v. Strong, 70 U.S. 3 Wall. 97 97 (1865)

Sparrow v. Strong

70 U.S. (3 Wall.) 97


1. Under the ninth rule of this Court, a writ of error or appeal from any judgment or decree rendered thirty days before the commencement of the term may be docketed and dismissed on motion of the defendant in error or appellee unless the other side dockets the cause and files the record with the clerk of the court within the first six days of the term. But if no motion to dismiss be previously made, the record may be filed and the cause docketed at any time within the term.

2. The value of a "Mining Claim" in Nevada may be the subject of estimate in money, and this Court will take jurisdiction of a suit concerning such a claim if of the requisite value, though the land where the claim exists has never been surveyed and brought into market. [The claim may perhaps exist under the old governments of Spain or Mexico. Moreover, mining interests, apart from fee simple rights in the soil by patent, existed before the Act of Congress of February 27, 1865, under the implied sanction of the federal Government.]

3. When the judgment brought before this Court by writ of error purports to affirm generally the judgment of a court inferior to the affirming court, and the only judgment in the record of such inferior court is a general judgment; this Court will take jurisdiction though an appeal has also been taken in the inferior court under state laws upon a motion refusing a new trial and there are some indications in the record that this affirmance was intended to be of that refusal.

Sparrow brought an action in the nature of an ejectment in the District Court for the First Judicial District of Story County, Nevada Territory, to recover an interest in a mining claim, a sort of interest very common in the argentiferous territory just named.

The case was tried before a jury upon a considerable body of evidence, and a verdict having been given for the defendant, a judgment in the nature of a judgment in ejectment was regularly rendered by the court upon it.

Subsequently, a motion for new trial was made. A statement embodying all the evidence was drawn up and agreed to by counsel, and upon this statement and some affidavits tending to show surprise on the trial, and new evidence discovered after trial, the motion was argued before the district court. It was overruled, and from the overruling order an appeal was taken, on the 15th November, 1862, to the supreme

Page 70 U. S. 98

court of the territory under an act of the territorial legislature authorizing such appeals.

On the 16th of March, 1863, the supreme court gave judgment in the cause as follows:

"On appeal from the District Court of the First Judicial District in and for Story County."

"Now, on the day, this cause being called, and having been argued and submitted and taken under advisement by the court, and all and singular the law and the premises being by the court the seen and fully considered, the opinion of the Court herein is delivered by Turner, C.J. (Mott, J., concurring), to the effect that the judgment below be affirmed."

"Wherefore it is now ordered, considered, and adjudged by the court here that the judgment and decree of the District Court of the First Judicial District in and for Story County be and the same is affirmed with costs."

From this judgment of the Supreme Court of Nevada a writ of error was taken here, the affidavit filed being the ordinary one, that "the value of the property in dispute" exceeded $2,000. The record did not show any bill of exceptions.

A rule of this Court (the ninth) requires that when a writ of error shall be brought to it from any judgment or decree rendered thirty days before the commencement of the term -- which this writ was -- it shall be the duty of the plaintiff "to docket the cause and file the record thereof with the clerk of this Court, within the first six days of the term." In the present case, the writ of error was properly sued out August 14, 1863, returnable to the next term of the court, and was regularly served. A citation was also served returnable to the same term. After the writ, citation, and record were filed and the cause docketed, a motion to dismiss the case was made and argued at the last term:

1. Because the record was not filed in time by the plaintiff in error.

2. Because the interest in controversy was not capable of a money valuation, and therefore not of the value, within

Page 70 U. S. 99

the meaning of the statute, of one thousand dollars, the amount necessary to give jurisdiction to this Court. [Footnote 1]

To understand the force or want of force of this second objection, it is necessary to state, on the one hand, that the Territory of Nevada, from which the case came, was formerly part of the province of Upper California, and belonged first to old Spain, afterwards to Mexico, and was acquired by the United States only in 1848, by treaty; [Footnote 2] and that our government as yet had made no grants of its public lands there or of any rights in them. Of course, no one could hold anything by patent or other formal grant from this government, in which, subject to prior private rights, everything still remained vested. On the other hand, it is to be stated that in the treaty referred to [Footnote 3] it is admitted that previously to our acquisition of it, the ceded territory had been settled to some extent by the authority of preexisting governments, and that all rights thus existing are made inviolable. In fact, immense estates in California -- a part of the acquired territory -- rest on the titles derived from the "former governments." [Footnote 4]

Congress had also established, in March, 1861, when Nevada, previously a part of Utah, was made a territory by itself, a government for that territory, having a legislature with the usual powers of these bodies in the territories, and this legislature had acted on the development of the mines as a subject more or less within its competence.

Page 70 U. S. 100

Independently of this, however, a special kind of law -- a sort of common law of the miners -- the offspring of a nation's irrepressible march -- lawless in some senses, yet clothed with dignity by a conception of the immense social results mingled with the fortunes of these bold investigators -- had sprung up on our Pacific coast, and presented, in the value of a "mining right," a novel and peculiar question of jurisdiction for this Court. [Footnote 5]

The case, however, was not disposed of at the last term, nor either of the two points already mentioned passed on. It was ordered to stand over for argument on another point -- the point, to-wit, whether the judgment of the Supreme Court of Nevada, above referred to, was a final judgment or decision reviewable here within the meaning of the act of Congress organizing the territory -- an act which gives this Court jurisdiction to review the final decisions of the supreme court of the territory.

Page 70 U. S. 103

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