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S Comp. Stat. 1901, p. 1433, and § 2859 of 1 $ 709, U. S. Rev. Stat., U. S. Comp. Stat. the Revised Statutes of Utah, both of which 1901, p. 575." sections are copied in the margin.

We are of opinion that neither of the Adopting the finding of the trial court grounds urged in support of the motion to that the Uhlig claims were valid locations, dismiss are tenable. As to the first, it is attention was called to the fact that those true that the supreme court of Utah decided claims were located on January 1, 1889, that, even although J. Fewson Smith, Jr., while the Yes You Do was located more than had been qualified to locate the Yes You Do eight years thereafter; viz., on January 1, claim, the location was invalid because made 1898. A mining claim was declared to be a more than seven years after the location of possessory right and real estate under the the Uhlig Nos. 1 and 2, when, it was held, statutes of Utah, and it was held that one the bar of the statute of limitations was Mayberry, the locator of the Levi P. claim, operative. But this amounted to saying not having instituted a suit to recover pos- that, even although the plaintiff was session of the premises in dispute within titled to adverse the Uhlig claims, he could seven years after the location of the Uhlig not be heard to rebut the evidence for the claims, was barred of all right to such defendants as to the possession under the premises by the terms of § 2859 of the Re-Uhlig locations, by evidence as to the posvised Statutes of Utah, and that his right session taken and had under the Levi P. to contest the title of the defendants to the location. Plainly, we think the ruling deconflict areas "was also waived by his fail-nied to the grantee of the Yes You Do, under ure to adverse the application for a patent the hypothesis that they existed, rights asof the Uhlig Nos. 1 and 2.” The court serted by him under § 2324 of the Revised added: "In view of these facts the plain- Statutes (U. S. Comp. Stat. 1901, p. 1426), tiff, even if J. Fewson Smith, Jr., had not authorizing the relocation of forfeited been a deputy United States mineral sur claims. It is evident from the record that veyor, as the location of the 'Yes You Do' the finding of the trial court as to the time was not made until eight years after the when possession was taken of the Uhlig Nos. possession of the Uhlig Nos. 1 and 2 was 1 and 2 claims, and the duration of possesbegun, could not avail himself of any rights sion, was based entirely upon the evidence which the said Mayberry may have had." introduced on behalf of the owners of those

This latter ruling of the supreme court of claims. The trial court treated as irrelUtah forms the basis for the first of two evant and immaterial evidence tending to grounds of a motion to dismiss this writ of show that the premises in dispute were emerror, which motion will now be passed braced in the Levi P. location, and that posupon.

session of that claim was held and retained The first is, in substance, that, assuming from a time at least contemporaneous with that

there was Federal question de the initiation of the Uhlig locations, and termined by the supreme court of Utah, its almost up to the location of the Yes You decision was not necessary, and whether it Do, as a relocation of the Levi P. Under was or not, jurisdiction does not exist, be such circumstances a decision that the bar cause there was another ground upon which of the seven years' statute of limitations the decree of the trial court was affirmed, was operative, upon the assumption that the non-Federal in its nature, and broad enough locator of the Yes You Do was entitled to to maintain the judgment; viz., the ruling adverse conflicting locations, amounted to of the bar of the statute of limitations. The deciding that Lavagnino could not show that second ground is thus stated :

the premises in dispute were unoccupied “That under the decision of the supreme mineral lands of the United States at the court of the state of Utah, this court has no time of the location of the Yes You Do, and, jurisdiction to hear and determine the ques- as bearing upon the validity of the retion raised under § 452, U. S. Rev. Stat., for location of the Levi P., the facts as to the the reason that the plaintiff in error has location, possession under, and forfeiture of not brought himself within the provisions of the Levi P. claim. The necessary effect of

* Section 2332, U. S. Rev. Stat.

which may have attached in any way whatever to

any mining claim or property, thereto attached “Where such person or association, they and prior to the issuance of a patent." their grantors have held and worked their claims for a period equal to the time prescribed by the

Section 2859, Utah Rev. Stat. statute of limitations for mining claims of the state or territory where the same may be situated

"No action for the recovery of real property, or evidence of such possession and working of the for the possession thereof, shall be maintained, claims for such period shall be sufficient to estab- unless it appear that the plaintiff, his ancestor, lish a right to a patent thereto under this chapter, grantor, or predecessor, was seized or possessed in the absence of any adverse claim; but nothing of the property in question within seven years bein this chapter shall be deemed to impair any lien 'fore the commencement of the action."

upon it.

this ruling, as before stated, was, we think, cited. It is elementary, also, that the to deny to the locator of the Yes You Do the power conferred by $ 2324 of the, Revised protection of the relocation provisions of Statutes, to relocate a forfeited mining § 2324 of the Revised Statutes, if that claim, does not place the locator in privity section justified the claim of right based of title with the owner of the prior and

forfeited location. The statute merely proAs to the second ground, the record clear vides that when a forfeiture has been ocly shows that the trial court considered that casioned, “the claim or mine upon which the plaintiff was specially claiming rights such failure occurred shall be open to reunder $ 2326 of the Revised Statutes, location in the same manner as if no location authorizing an adverse of an application for of the same had ever been made, provided a patent to mineral lands, and the supreme that the original locators, their heirs, ascourt of Utah necessarily acted upon that

signs, or legal representatives, have not reassumption in the opinion by it delivered. sumed work upon the claim after failure The motion to dismiss is, therefore, over- and before such location.” ruled.

The question then is, where there was a The question then is, Did the supreme conflict of boundaries between a senior and court of Utah err in affirming the decree of junior location, and the senior location has the trial court?

been forfeited, has the person who made As we have seen, the supreme court of the relocation of such forfeited claim the Utah, in part, rested its conclusion upon the right, in adverse proceedings, to assail the want of power in a deputy mineral surveyor title of the junior locator in respect to the to make the location in question, in conse

conflict area which had previously existed quence of the prohibition contained in g 452 between that location and the abandoned or of the Revised Statutes. A consideration of

forfeited claim? that subject, however, will be unnecessary if it be found that even if a deputy mineral involves, necessarily, deciding that, as to the

To say that the relocator had such right surveyor was not within the restriction of area in conflict between the junior and the the section referred to, nevertheless, the senior locations, the junior could acquire no rights asserted under the Yes You Do lo

present or eventful right whatever, and cation in the adverse proceeding were not that, on the abandonment or forfeiture of paramount to the rights arising from the the senior claim, the area in conflict became, Uhlig location. We, therefore, come at without qualification, a part of the public once to a consideration of that question, and, domain. In other words, the proposition of course, in doing so assume, for argument must come to this: that as the junior losake, that the section of the Revised cator had acquired no right whatever, Statutes relied upon and the rules and regulations of the Land Department did not present or possible, by his prior location, as

to the conflicting area, he would be obliged, prohibit a deputy mineral surveyor from

in order to obtain a patent for such area, making a location of mineral land. And, to initiate in respect thereto a new right, moreover, in considering the question which to initiate in respect thereto a new right, we propose to examine, we concede, for the accompanied with a performance of those sake of argument, that the Levi P. location, acts which the statute renders necessary to of which the Yes You Do purported to be a

make a location of a mining claim.

The deductions just stated are essential relocation, was prior in date to the location of the Uhlig Nos. 1 and 2, and that there to sustain the right of the relocator of a were areas in conflict between them. With forfeited mining claim to contest a location all these concessions in mind, the question the ground that such existing location em

, yet remains whether Smith and his trans- braced an area which was included in the feree, in virtue of the location of the Yes forfeited and alleged senior location, for You Do, stood in such a relation as to enable

the following reasons:

If the land in dis. , , verse the application for patent made by the pute between the two locations, which ante

dated the relocation, did not, on the owners and possessors of the Uhlig locations. forfeiture of the senior of the two locations,

It is undoubted that this court in a num- become unqualifiedly a part of the public ber of cases has declared that the rights of domain, then the right of the junior of the a subsisting senior locator of mineral land two would be operative upon the area in are paramount to those of the owner of a conflict on a forfeiture of the senior location. junior location, so far as said junior lo- If it had that effect it necessarily was prior cation conflicts in whole or in part with the and paramount to the right acquired by a prior location. Clipper Min. Co. v. Eli relocation of the forfeited claim. Min. & Land Co. 194 U. S. 220, 226, 48 L. ed. But we do not think that the deductions 944, 949, 24 Sup. Ct. Rep. 632, and cases which we have said are essential to sustain the right of the relocator to adverse, under | necessary to entitle to a patent, and who the circumstances stated, can be sustained makes application for the patent, publishing consistently with the legislation of Congress the statutory notice, will be entitled to a in relation to mining claims. Indeed, we patent for the land embraced in the location think such a construction would abrogate notice, unless adverse rights are set up in the provisions of § 2326 of the Revised the mode provided in the section. Thus Statutes, which is as follows:

clearly providing that if there be a senior "Sec. 2326. Where an adverse claim is locator possessed of paramount rights in the filed during the period of publication, it mineral lands for which a patent is sought, , shall be upon oath of the person or persons he may abandon such rights and cause them making the same, and shall show the nature, in effect to inure to the benefit of the appliboundaries, and extent of such adverse cant for a patent by failure to adverse, or, claim, and all proceedings, except the public after adversing, by failure to prosecute cation of notice and making and filing of such adverse. the affidavit thereof, shall be stayed until It cannot be denied that under $ 2326, if, the controversy shall have been settled or before abandonment or forfeiture of the decided by a court of competent jurisdiction, Levi P. claim, the owners of the Uhlig locaor the adverse claim waived. It shall be the tions had applied for a patent, and the ownduty of the adverse claimant, within thirtyers of the Levi P. had not adversed the apdays after filing his claim, to commence pro- plication, upon an establishment of a prima ceedings in a court of competent jurisdiction, facie right in the owners of the Uhlig claims, to determine the question of the right of pos- an indisputable presumption would have session and prosecute the same with reasona- arisen that no conflict claims existed to the ble diligence to final judgment; and a fail premises described in the location notice. ure so to do shall be a waiver of his adverse Gwillim v. Donnellan, 115 U. S. 45, 51, 29 claim. After such judgment shall have L. ed. 348, 350, 5 Sup. Ct. Rep. 1110. And been rendered, the party entitled to the pos- the same result would have arisen had the session of the claim, or any portion thereof, owner of the Levi P. adversed the applicamay, without giving further notice, file a tion for a patent based upon the Uhlig certified copy of the judgment roll with the locations, and failed to prosecute, and waived register of the land office, together with the such adverse claim. certificate of the surveyor general that the In both of the supposed instances the necrequisite amount of labor has been expendedessary consequence would have been to conor improvements made thereon, and the de- clusively determine in favor of the applicant, scription required in other cases, and shall so far as the rights of third persons were pay to the receiver five dollars per acre for concerned, that the land was not unoccupied his claim, together with the proper fees, public land of the United States, but, on the whereupon the whole proceedings and the contrary, as to such persons, from the time judgment roll shall be certified by the of the location by the applicant for the register to the Commissioner of the General patent, was land embraced within such locaLand Office, and a patent shall issue thereon tion, and not subject to be acquired by anfor the claim, or such portion thereof as other person. And this result, flowing from the applicant shall appear, from the decision the failure of the owner of a subsisting of the court, to rightly possess. If it ap- senior location to adverse an application for pears from the decision of the court that patent by the owner of an opposing location, several parties are entitled to separate and or his waiver, if an adverse claim is made, different portions of the claim, each party must, as the greater includes the lesser, also may pay for his portion of the claim, with arise from the forfeiture of the claim of the the proper fees, and file the certificate and senior locator before an application for description by the surveyor general, where patent is made by the conflicting locator, on the register shall certify the proceedings and the consequent impossibility of the and judgment roll to the Commissioner senior locator to successfully adverse after of the General Land Office, as in the pre- the forfeiture is complete. ceding case, and patents shall issue to the Of course the effect of the construction several parties according to their respective which we have thus given to § 2326 of the rights. Nothing herein contained shall be Revised Statutes is to cause the provisions construed to prevent the alienation of the of that section to qualify $8 2319 and 2324 title conveyed by a patent for a mining (U. S. Comp. Stat. 1901, pp. 1424, 1426), claim to any person whatever.”

thereby preventing mineral lands of the This section plainly recognizes that one United States which have been the subject who, pursuant to other provisions of the of conflicting locations from becoming, Revised Statutes, has initiated a right to a quoad the claims of third parties, unoccumining claim, has recorded his location no- pied mineral lands by the mere forfeiture of tice, and performed the other acts made 'one of such locations.

In text books (Barringer & A. Mines & Min- Amendment to the Constitution of the United ing, p. 306; Lindley, Mines, 2d ed. pp. 650,

States does not wholly deprive a state of the 651), statements are found which seemingly

power to confer jurisdiction on its courts to

administer the estates of absentees, irrespecindicate that, in the opinion of the writers, tive of the fact of death, by a special and apon the forfeiture of a senior mining loca- propriate proceeding distinct from the gen. tion, quoad a junior and conflicting location, eral law for the settlement of the estates of the area of conflict becomes, in an unquali

decedents. fied sense, unoccupied mineral lands of the 2. Fixing the period of a person's absence United States, without inuring in any way

from his last domicil within the state which

will be sufficient, under Pa. Laws 1885, p. to the benefit of the junior location. But, in 155, to authorize the administration of his the treatises referred to, no account is taken property by the special proceeding provided of the effect of the express provisions of Rev.

by that statute at seven or more years, is Stat. § 2326. Moreover, when the cases to

not so unreasonable as to render the statute which the text writers referred, as sustain

repugnant to the due process of law clause

of the 14th Amendment to the Constitution ing the statements made, are examined, it of the United States. will be seen that they were decided either be- 3. Notice by publication of the special proceedfore the passage of the adverse claim of stat- ing provided by Pa. Laws 1885, p. 155, for utes of 1872, or concerned controversies be

the administration of the estates of absentees, tween the senior and junior locators, or de

satisfies the requirement of the due process of

law clause of the 14th Amendment to the pended upon the provisions of state statutes.

Constitution of the United States. How far such statutes would be controlling, 4. The safeguards for the protection of the we are not called upon to say, as it is not property of an absentee in case of his re claimed that there is any statute in Utah in

turn, afforded by Pa. Laws 1885, p. 155, proany way modifying the express provisions of

viding a special proceeding for the adminis

tration of the estates of absentees, satisfy $ 2326.

the requirement of the due process of law As the issue raised by the complaint in clause of the 14th Amendment to the Conthis action concerned only the conflict areas, stitution of the United States, where that and, on the trial, the invalidity of the Uhlig

statute authorizes the revocation of the ad

ministration at any time on proof that the locations, in respect to the premises in dis

absentee is in fact alive, and in such event pute, was attempted to be established solely

permits him to recover the shares of his by proof that the Levi P. was an antecedent estate received by the distributees, and prolocation, and embraced the grounds in con- vides that until the latter shall give security flict, it follows, from the opinion which we

for refunding their shares with interest in have expressed, that, at the time when

case the supposed decedent shall be alive, no

distribution shall be made, and that in case Smith located the Yes You Do claim as a

of inability to give such security the money relocation of the Levi P. claim, the land em- shall be invested under the control of the braced within the location notices of the court, and the interest only paid to the disUhlig claims, and upon which the Yes You

tributees. Do overlapped, was not unoccupied mineral

[No. 165.] lands of the United States, and was conse

, quently not subject to be relocated by Smith, Argued March 6, 1905. Decided May 29,

1905. even under the mere hypothesis which we have indulged in, that, as a deputy mineral

State of Pennsylvania to review a judgthe location. For this reason the judgment ment which reversed a judgment of the Supeof the Supreme Court of Utah was right, rior Court of that state, which had affirmed and it must therefore be affirmed.

a judgment of the Court of Common Pleas

of Berks County in favor of plaintiff in an Mr. Justice Brewer concurs in the reaction to recover arrears of interest which sult.

had been paid during her absence from the

state to the administrator appointed to adMr. Justice McKenna dissents.

minister her estate as an absentee. Affirmed.

See same case below, 206 Pa. 469, 98 Am. (198 U. S. 458) i

St. Rep. 790, 56 Atl. 16.

The facts are stated in the opinion.
Smith, Piff. in Err.,

Mr. Caleb J. Bieber for plaintiff in er-


Messrs. Frederick W. Nicolls (by spe

cial leave) and William Rick for defendant Constitutional lare-due process of law-va- in error.

lidity of proceeding for administration of

Mr. Justice White delivered the opinion estates of absentees.

of the court: 1. The due process of law clause of the 14th The legislature of Pennsylvania, in 1885,

25 S. C.-46.

surveyor, he was not debarred from making INSERROR to the Supreme Court of the


adopted a law "relating to the grant of authorized agent or attorney: Provided, letters of administration upon the estates of Nothing in this act contained shall validate persons presumed to be dead, by reason of the title of any person to any money or long absence from their former domicil.” property received as widow, next of kin, ot Briefly, and in substance, the act provided heir of such supposed decedent, but the that upon application made to the register same may be recovered from such person in of wills for letters of administration upon all cases in which such recovery would be the estate of any person supposed to be dead had if this act had not been passed.” on account of absence for seven or more It is further provided that before any disyears from the place of his last domicil tribution of the estate of such supposed dewithin the state, the register of wills shall cedent shall be made to the persons entitled certify the application to the orphans' court, to receive it, they shall give security, to be and that said court, if satisfied that the ap- approved by the orphans' court, in such sum plicant would be entitled to administration as the court shall direct, conditioned that if if the absentee were in fact dead, shall cause the absentee "shall, in fact, be at the time the fact of the application to be advertised alive, they will, respectively, refund the in a newspaper published in the county once amounts received by each, on demard, with a week for four successive weeks, giving interest thereon; but if the person notice that on a day stated, which must be persons entitled to receive the same is or are two weeks after the last publication, evi- unable to give the security aforesaid, then dence would be heard by the court concern- the money shall be put at interest on seing “the alleged absence of the supposed de- curity approved by said court, which intercedent, and the circumstances and duration est is to be paid annually to the person enthereof.” After providing for a hearing in titled to it, and the money to remain at the orphans' court, the statute empowers interest until the security aforesaid is given, that court, if satisfied by the proof that the or the orphans' court, on application, shall legal presumption of death is made out, to order it to be paid to the person or persons so decree, and cause a notice to be inserted entitled to it.” for two successive weeks in a newspaper After affording remedies in favor of the published in the county, and also, when prac- absentee in case the issue of letters should ticable, in a newspaper published at or be subsequently revoked, the statute pronear the place beyond the state where, vides that the costs attending the issue of when last heard from, the supposed de- letters or their revocation shall be paid out cedent had his residence. This notice re- of the estate of the supposed decedent, and quires the absentee, if alive, any that the costs arising upon the application other person for him, to produce to the court, for letters which shall not be granted shall within twelve weeks from the date of the be paid by the applicant. Public Laws last insertion of the notice, satisfactory evi- 1885, p. 155. dence of the continuance in life of the The plaintiff in error, Margaret Cunnius, absentee. If, within the period of twelve now Margaret Smith, whom we shall hereweeks, evidence is not produced to the court after refer to as Mrs. Smith, prior to and that the absentee is alive, the statute makes at the time of the passage of this act, was it the duty of the court to order the register domiciled in the state of Pennsylvania. In of wills to issue letters of administration to virtue of her right of dower in certain real the party entitled thereto, and such letters, estate of her husband, which passed to him until revoked, and all acts done in pur- from his deceased mother's estate, she besuance thereof and in reliance thereupon, came entitled to the annual interest during shall be as valid as if the supposed decedent her life on the sum of $569.61. This debt were really dead. Power is further con- was assumed by John M. Cunnius, who ferred upon the orphans' court to revoke the acquired the real estate from which the right letters at any time on proof that the absen- of dower arose, and was in turn assumed by tee is in fact alive, the effect of the rev- the Reading school district, in consequence ocation being to withdraw all the powers of its acquisition from John M. Cunnius of conferred by the grant of administration. the property. The school district paid the But it is provided that

interest as it accrued to Mrs. Smith, at her “All receipts or disbursements of assets, domicil in the city of Reading, up to the and other acts previously done by him” (the 1st of April, 1888. In that year she left administrator), "shall remain as valid as if her domicil in the city of Reading, and for the said letters were unrevoked, and the ad-nearly nine years—up to March, 1897—she ministrator shall settle an account of his had not been heard from. At that date her administration down to the time of such only son, who resided in Reading, alleging revocation, and shall transfer all assets re- the absence of his mother for the period maining in his hands to the person as whose stated, and the fact that she had not been administrator he had acted, or to his duly 'heard from, and the consequent presumption


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