Brandt v. Wheaton

This is a suit in equity, and yet the Court rendered judgment on the general verdict of a jury.

The action cannot be maintained. The complaint charges that the defendant is seeking to purchase the land from the United States. This he had a right to do under the Acts of Congress. (See secs. 2325 and 2326 of the Bevised Statutes of the United States.)

The complaint nowhere attempts to say or show that the defendant’s' application to purchase was not fairly and legally made, nor that he had not acquired an actual right of purchase binding upon the United States under its existing law.

The land being public mineral land of the United States, Congress could dispose of it as it chose. It could order it sold to a person out of possession as well as to a person in possession. (Doran v. C. P. B. B. Co., 24 Cal. 253 to 257.)

This right of purchase exercised by the defendant, and se[432]cured by making a, regular application and taking the proper steps to effect the purchase, all done under an Act of Congress not repealed, but in full force and effect, was such a right and interest in the land as the law recognizes and protects. (Hess v. JBolinger, 48 Cal. 349; Hinckley v. Fowler, 43 Cal. 5G.)

Hále & Craig, for the Respondent.

The plaintiff’s case and claim amounted to this, to wit, that he then was, and for a long time had been, the exclusive possessor, and entitled to possess, and was the owner of his mining claims, which were part and parcel of the public mineral lands of the United States. The gravamen of his complaint against defendant was that the latter, in contravention of his said rights, and without any possession, right of possession, or ownership in him, (defendant) was then unlawfully making claim to own and possess portions of his (plaintiff’s) said claims, and was then in the act (by means adequate to the consummation of the threatened wrong and mischief to defendant) of unlawfully seeking to obtain, by letters-patent from the Government of the United States, the title in fee to certain portions of his said mining claims, by which means, if consummated, the plaintiff must inevitably lose, and the defendant unlawfully gain, the possession and ownership of the disputed portions of plaintiff’s mining claims.

In Merced Mining Company v. Fremont, 7 Cal. 319, the precise question here presented was expressly propounded, reasoned out, and answered affirmatively, to wit: “ Can a party in possession of a mining claim on public lands within this State, sustain a suit to determine the adverse title of a party out of possession ? ” This Court, in that case, after answering the question in the affirmative, significantly remarked, in conclusion: “ If this right is not extended to mining claims, then this most important interest of the State is without adequate protection, and there is a manifest failure of justice.” This rule of decision has in no case, before or since, been modified or questioned by this Court, but has in numerous- cases been substantially upheld, and in several directly approved. (Tarter v.