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valuable for minerals” are “reserved from sale” and for location as mineral lands. U. S. v. Iron Silver Min. Co., 128 U. S. 673, 9 Sup. Ct. 195, was an action to cancel placer patents because veins had not been excepted. At page 683, 128 U. S., page 195, 9 Sup. Ct, it is said:
"It is not enough that there may have been some indication, by outcroppings on the surface, of the existence of lodes or veins of rock in place bearing gold or silver or other metal to justify their designation as known veins or lodes. To meet that designation, the lodes or veins must be clearly ascertained, and be of such extent as to render the land more valaable on that account, and justify their exploitation."
The case of Davis' Adm’r v. Weibbold, 139 U. S. 507, 11 Sup. Ct. 628, was a contest between the owner of a patented lode claim and claimants under a prior town-site patent, in which is fully considered the question of exception of mineral lands from the operation of a town-site or other patent, and the characteristics of such lands, and approvingly refers to numerous rulings which hold, in effect, that they must be more valuable for minerals than for other purposes; and that it is not sufficient that they merely contain mineral, but that they must contain it in sufficient quantity to make them valuable as mineral lands; and, in harmony with what it had before said, the court says, on page 519, 139 U. S., page 628, 11 Sup. .Ct.:
“There are vast tracts of country in the mining states which contain precious metals in small quantities, but not to a sufficient extent to justify the expense of their exploitation. It is not to such lands that the term 'mineral in the sense of this statute is applicable.”
And, after a review of the rulings, further, on page 524, 139 U. S., page 628, 11 Sup. Ct., that,
“It would seem from this uniform construction of that department of the government specially intrusted with supervision of proceedings required for the alienation of the public lands, including those that embrace minerals, and also of the courts of the mining states, federal and state, whose attention has been called to the subject, that the exception of mineral lands from grant in the acts of congress should be considered to apply only to such lands as were at the time of the grant known to be so valuable for their minerals as to justify expenditure for their extraction.”
The case of Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 143 U. S. 394, 430, 12 Sup. Ct. 543, is important, because, after it had been once submitted, the court ordered a reargument upon the questions of "what constitutes a lode or vein,' within the meaning of sections 2320 and 2333, of the Revised Statutes,” and “what constitutes a known lode or vein, within the meaning of section 2333”; and, like the case at bar, it was a contest between the patentee of a placer claim and the claimant of a lode located after application made for patent to the placer claim. On page 404, 143 U. S., page 543, 12 Sup. Ct., it is said:
"It is undoubtedly true that not every crevice in the rocks, nor every outcropping on the surface, which suggests the possibility of mineral, or which may, on subsequent exploration, be found to develop ore of great value, can be adjudged a known vein or lode within the meaning of the statute."
Then, after qnoting the extracts above noted from 116 U. S. 536, 6 Sup. Ct. 481, and 128 U. S. 683, 9 Sup. Ct. 195, it concludes that
"It is, after all, a question of fact for a jury. It cannot be said, as a mat. ter of law, in advance, how much of gold or silver must be found in a vein before it will justify exploitation, and be properly called a “known' vein."
It may be doubted that this decision directly modifies the former views expressed by the court that a well-defined mineral ledge must be proven to exist before a patent, issued for some other purpose, will be overthrown in its favor; but such modification seems to some extent to be implied from the quotation without disapproval of the liberal rule adopted in 116 U. S. and 6 Sup. Ct., supra, from the manner of its quotation, which seems to indicate that the court considered it somewhat antagonistic to other decisions, and from the argument of the dissenting opinion. However this decision may be viewed,—and it is cited with confidence by each party in this case,—the stricter view is adhered to in Dower v. Richards, 151 U. S. 658–662, 14 Sup. Ct. 452:
"The court held that if the ledge was not known, at the time of the acquisition of the town-site patent, to contain such an amount of minerals as to be valuable for mining purposes, it was not excepted from the operation of that patent. There can be no doubt that the decision of the supreme court of the state in this respect was correct. It is established by former decisions of this court that under the acts of.congress which govern this case, in order to except mines or mineral lands from the operation of a town-site patent, it is not sufficient that the lands do in fact contain minerals, or even valuable minerals, when the town-site patent takes effect; that they must at the time be known to contain minerals of such extent and value as to justify expenditures for the purpose of extracting them; and, if the lands are not known at that time to be so valuable for mining purposes, the fact that they have once been valuable, or are afterwards discovered to be still valuable, for such purposes, does not defeat or impair the title of persons claiming under the town-site patent.”
The conclusion reached from the foregoing citations is that, before a patent for a placer claim can be canceled or modified upon application of a ledge claimant, the latter must establish by clear and convincing proof that at the date when the application was made for patent to the placer claim, either that such placer applicant knew, or might have known by reasonable inspection, inquiry, or diligence, or that the community generally knew (Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 113 U. S. 402, 12 Sup. Ct. 543), that a mineral bearing ledge of rock in place existed within the limits of such placer claim; that such ledge was valuable for its minerals, which were in such quantity, and of such quality. as, under the then existing circumstances, would justify expenditure for the purpose of extracting them; and that more than merely indications of a mineral-bearing ledge must have then existed.
3. Has the evidence so shown within the limits of the Noyes placer claim, on the 17th day of December, 1878, the existence of such a mineral-bearing ledge or lode? Only the evidence of the conditions existing at the date named is pertinent. At that time two shafts or holes existed, -one at the discovery of the lode claim, and about 20 feet east of the east line of the placer claim; and the other about 75 feet west of such line. Their depth at that time is not clearly shown, but the first was about 10 feet below the surface of the bedrock, and the other but a few feet deep, and of irregular dimensions. As to what was discovered in them the witnesses differ much.
A review of the testimony will not be made, but only the impression it created stated. It is that a vein or fissure was developed in the discovery shaft, but that then there was not sufficient work done to show a vein in the other shaft; that, while the vein matter or contents of the ledge at the discovery shaft may have been such as justified the location of a lode claim under section 2320 and some of the rulings of the courts, it was not of such value as would then have paid, or even now pay, the expense of its extraction, or for the exploitation of the claim, and not such as the supreme court has held sufficient to justify the cancellation of a placer patent in support of a ledge claim in cases similar to this. Aside from the differing testimony of the witnesses, there are some established facts that strongly corroborate this conclusion. All the work done on this, ledge prior to the application for the placer patent was done upon the Morning Star location, but which did not result in such development as induced the owners of that claim to hold it, for they abandoned it as worthless. The Childe Harold has been located for over 13 years. There does not seem to be any claim that more work than that necessary to hold it has been done thereon. The work consists of several shafts, easily and inexpensively made. There is no evidence to satisfy me that any of the work was done with the view of developing a valuable mine. While it is true that poor men, in these times of depressed price of silver, are not likely to do more work than they must, yet it is hardly to be expected that a claim held to be valuable for copper, as this is, would be carried by these defendants from the year 1885—when, as appears by their deed, in evidence, they purchased it for $75—to the present, practically without any effort to develop it into a valuable property. During the trial, witnesses spoke so freely of the location of mining claims about Butte City for surface purposes and value instead of for the minerals they contained, that the impression was left that it was no unusual thing in that vicinity to locate mining claims to be utilized as town lots, and this, too, with
apparent thought that it was illegal. That such has been the practice there, is confirmed from a plat exhibited during the trial, which showed the entire site of Butte City, and much of the adjoining country, covered with a blanket of mining locations, the lines of all fitting each other as closely and snugly as those of town lots and city additions. It is certainly true that nature has been most lavish in her mineral gifts to the locality of Butte City, for so many known great veins exist no place else on earth as there; but it must be doubted that mineral-bearing ledges within the meaning of the law are nearly so numerous anywhere as the mining locations are there, and it must be concluded that many of them were made without the sanction of law. It may not be that the Childe Harold was located, or is now held, merely for its surface value, but it is held that it has not been proven that on the 17th day of December,
1878, a known vein or lode existed within the limits of the Noyes placer claim.
That the placer claim included a part of what was the Morning Star, and was located before the latter had been forfeited, is an objection that cannot be considered in a collateral attack upon a patent, and, so far as concerns this proceeding, that defect was cured by the issue of the patent.
Other questions were referred to in argument, but it is deemed unnecessary to now consider them. Judgment must follow for the plaintiff as prayed, and it is now so ordered.
FRANK V. WEDDERIN et al.
(Circuit Court of Appeals, Fifth Circuit. May 21, 1895.)
1. PRACTICE-LIMITED APPEARANCE.
One who intervenes in a pending suit to protect a supposed interest, and therein presents all the issues he wishes, and makes all the defense he cares to make, cannot be permitted to avoid the effect of the judgment rendered upon such issues by limiting his appearance to the purpose of protecting his right and disclaiming an intention to make himself a party
to the suit. 2. JUDGMENT-ESTOPPEL.
Three several creditors of the T. Co. commenced suits against it by attachment of its property and service of process. W. and others, claiming to be liquidating commissioners appointed upon a dissolution of the T. Co., and entitled to the possession and control of its property, filed motions in these suits, alleged to be for the sole purpose of protecting their possession and control, and without intention to make themselves parties to the suits, and, suggesting the dissolution of the corporation and their appointment, asked for the dismissal of the suits. After a full hearing upon such motions, in which W. and his associates introduced evidence, and examined and cross-examined witnesses, the motions were denied, and judgments given against the T. Co., and the attached property sold. No appeal was taken from these judgments. Held, that W. and his associates were estopped by the judgments, rendered upon their intervening motions, to set up a claim to the property sold under the attachment and executions, based
on the same grounds upon which their intervening motions were based. 3. CORPORATIONS-DISSOLUTION.
It seems that the voluntary dissolution of a corporation, insolvent or otherwise, without public notice, and after its creditors have been driven into the courts, should be viewed with suspicion, and strict compliance with all legal formalities should be required.
In Error to the Circuit Court of the United States for the Eastern District of Louisiana.
This was an action by Carl Wedderin, W. A. Taylor, and John C. Linney, Jr., claiming to be liquidators of the Taylor Brothers Iron Works Company, Limited, against Michael Frank, to recover certain property sold to him under executions against that company. Upon the trial in the circuit court, a verdict was directed for the plaintiffs, and judgment rendered thereon. Defendant brings error. Re. versed.
For decision in a former litigation involving the same controversy, see 54 Fed. 82.
On the 6th day of December, 1892, suits at law were commenced in the circuit court of the United States, Eastern district of Louisiana, by the Prentiss Tool & Supply Company and the Niles Tool Works, and on the 7th day of December by the Cleveland Forge & Iron Company, against the Taylor Brothers Iron Works Company, Limited, a business corporation chartered under the laws of the state of Louisiana. Attachments and sequestrations issued, under which the marshal seized and took possession of the defendant's property on said dates, and the defendant was cited in each case on the 7th day of December, 1892, by domicile service on the secretary, and subsequently by service of process on the president in person, December 19th. On the 14th day of December, 1892, Carl Wedderin, W. A. Taylor, and John C. Finney, Jr., defendants in error in the present case, appeared in said court, and filed in each case a motion and exception in the following words: “Now come Carl Wedderin, Walter A. Taylor, and John C. Finney, Jr., liquidating commissioners of the Taylor Brothers Iron Works Company, Limited, and for the sole purpose of protecting their possession and control of the assets and property of said company, and not intending to make themselves parties thereto, they bring to the notice of the court the following facts: That the Taylor Brothers Iron Works Company, Limited, sued and cited as defendant herein, was dissolved and lost its corporate existence on November 16, 1892, by resolution of a general meeting of its stockholders held on said date, in accordance with law and section 7 of the charter of said company, evidenced by act before J. D. Taylor, N. P., April 7, 1891, which said company thereby lost its capacity to sue or to be sued as a corporation or in its corporate name; that at said general meeting of the stockholders of said company, which dissolved the corporation, your appearers were appointed liquidating commissioners of said company, likewise in accordance with law and said section 7 of said charter. Now your appearers appointed liquidating commissioners under the resolution aforesaid move that they be allowed by the court to appear solely for the conservatory purpose of moving to dissolve the attachment herein issued, on the ground that the Taylor Brothers Iron Works Company, Limited, had been dissolved and ceased to exist at the time the attachment in this cause issued, and prior thereto. Now come Carl Wedderin, Walter A. Taylor, and John C. Finney, liquidating commissioners of the Taylor Brothers Iron Works Company, Limited, and suggest to the court the following facts: That the Taylor Brothers Iron Works Company, Limited, sued and cited as defendant herein, was dissolved and lost its corporate existence on November 16, 1892, by resolution of a general meeting of its stockholders held on said date, in accordance with law and section 7 of the charter of said company, evidenced by authentic act before J. D. Taylor, notary public, April 7, 1891. Wherefore appearers pray that this suit may be dismissed, with costs, and for general relief."
The cases were heard by the late Judge Billings upon these pleadings; and the motion to dissolve the attachments, and for the delivery of the property and dismissal of the suit, were denied on the 13th day of February, 1893, after a full trial on the merits. Judgments were rendered against the corporation in each of the cases on the same day for the amounts sued for, with recognition of the attachments. Executions issued upon these judgments in due course, and the property claimed in the case was sold thereunder by the marshal to Michael Frank on the 31st of May, 1893, for the price and sum of $42,000. The plaintiffs below (defendants in error here), after February 13, 1893, remained silent until April 2, 1894, when the present suit was brought against Mr. Frank to recover the property. As grounds of recovery, the plaintiffs allege in their petition that the Taylor Brothers Iron Works Company, Limited, was dissolved on the 16th day of November, 1892, by a resolution of its stockholders, convened for that purpose, and that they were appointed liqui. dators by the same resolution, and that the resolution was recorded in the mortgage office on the 6th day of January, 1893; that on the 7th day of December, 1892, they filed a petition in the civil district court, setting up the resolution of dissolution, and praying for a judicial recognition of their appointment as liquidators, which was granted on the same day; that on Decem