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Opinion of the Court.
These mines were and are upon a part of the public domain of the United States, but within the lines of the said grant as fraudulently extended by Ramirez and his confederates aforesaid. The defendant, as shown by its answer to the supplemental bill at the time of the filing of the same, actually occupied and possessed said Big Copper mine, and was extracting ore therefrom, claiming the legal right to do so as against the United States, and was also in possession of the land upon which said other mines were situated, and also claiming the right to the same. The defendant was not so in possession under the mineral laws of the United States as a locator, or claiming under or through any locator by virtue of such mining laws, but was in possession under and by means of the said fraudulent survey, and was claiming under the agricultural patent to Ramirez, the action of the surveyor general thereon, the confirmation by Congress, the survey and patent thereunder, the lawful right to hold said mines and extract therefrom the precious metals for its own use to the exclusion of the United States therefrom, and, in defiance of the mineral laws of the United States, predicating such claim of right upon mesne conveyances from parties holding under and by virtue of said patent.
"The possession of the said mine by the defendant as aforesaid, and the manner in which the same is being worked and carried on, is such as to prevent other mining prospectors from locating thereon or making any claim or acquiring any title thereto by location and development under the mining laws of the United States, and, if permitted to continue, would enable the defendant, under claim of legal title, which does not exist, to continuously extract therefrom large quantities of valuable precious metals, and thus greatly to lessen the value of said property, and to hinder and delay the development thereof, and to prevent location thereon and development under the mining laws of the United States. The claim of said defendant constitutes a cloud upon a title to the said mines and upon the right of the United States to open the same to be prospected, located and developed as mineral land, and deprives it of the revenue which would
Opinion of the Court.
otherwise accrue to it from such settlement and development."
The United States has therefore a pecuniary interest in maintaining this action, that it may recover possession of these mines and secure to itself the revenue naturally derivable therefrom.
This last matter is also a sufficient answer to the second point made by the appellant, and that is, that the prosecution of this suit is barred by laches, for it is well settled that when the government has a direct pecuniary interest in the subjectmatter of the litigation the defences of stale claim and laches cannot be set up as a bar. United States v. Dalles Military Road Company, 140 U. S. 599, and cases cited in the opinion.
The third point of appellant is, that much of the testimony of John B. Treadwell, and the exhibits attached thereto, were incompetent and should have been excluded, and because they were not the decree of the Supreme Court of the Territory ought to be reversed. Mr. Treadwell was a special agent and examiner of surveys for the Land Department. After this suit had been commenced, he was directed by the Land Department to proceed to the disputed territory and make an examination as to the survey. He did so, and besides making surveys and taking photographic views, he also obtained thirteen affidavits of witnesses, selected by himself, as to boundaries, etc. When called as a witness he produced these affidavits as part of his testimony, and gave his conclusions as to the proper boundaries of the grant, based partly at least upon the information obtained from them. After his deposition containing these matters had been filed in the case, and before the hearing in the District Court, two motions were made by the defendant-one to strike out the entire deposition, and the other to suppress parts of it. Both were overruled and no exception taken. The District Court, as heretofore stated, found for the defendant, and entered a decree dismissing the bill. An appeal having been taken to the Supreme Court of the Territory, the entire record was transferred to that court. There, no new motion to strike out this deposition, or any part of it, was presented, nor were the
Opinion of the Court.
two motions made in the District Court renewed in the Supreme Court, or action asked of that court thereon. Obviously the defendant, relying upon its success in the District Court, with this testimony in the case and before the court, did not deem the matter of sufficient importance either to renew the motions made in the District Court, or to file additional ones, and so let the case pass to the consideration of the Supreme Court with all the testimony, including this deposition, unchallenged. But our inquiry is limited to the rulings of the Supreme Court of the Territory; it is its judgment which we are reviewing. By the appeal the case was transferred as a whole from the District Court to the Supreme Court. The rulings of the former court did not bind or become those of the latter, either as to the admission or rejection of testimony, or the decree to be entered. All the testimony taken and filed in the one court was spread before the other, and was apparently proper for its consideration. If the defendant had wished to narrow the examination of that court to any portion of the testimony, it should by appropriate motion to it have challenged the supposed objectionable parts. Counsel, appreciating this necessity of the case, has endeavored to show that the Supreme Court did in fact rule on the admissibility of this testimony; but we think his contention is not borne out by the record. Certainly no new motion was filed in the Supreme Court, or any entry made of a renewal of the motions in the District Court or of a decision thereon; and if error is to be predicated upon any ruling of the lower court, it would seem that the ruling should affirmatively and distinctly appear. And in this connection notice may well be taken of Rule 13 of this court: "In all cases of equity
heard in this court no objection shall hereafter be allowed to be taken to the admissibility of any deposition, deed, grant or other exhibit found in the record as evidence, unless objection was taken thereto in the court below and entered of record; but the same shall otherwise be deemed to have been admitted by consent."
Upon what grounds does counsel contend that the Supreme Court did rule upon this matter? In the order of the court refusing the petition for rehearing is the following:
Opinion of the Court.
does now overrule such petition and refuses to grant the same for reasons set forth in an opinion by Chief Justice Long."
This was the second reason assigned for rehearing:
"2. The court bases its conclusion as to the location of said Sierra del Tuerto largely upon ex parte affidavits taken by one John B. Treadwell, without notice to any one or opportunity for cross-examination, improperly injected into the record of the court below after all the proofs on both sides were closed, which defendant moved to strike out and suppress before the final hearing, as is shown by the record."
And in the opinion is this statement:
"The defendant has filed a petition for rehearing, assigning therein twelve reasons why the same should be granted. The second points made are but a repetition of those urged both in oral argument and in the printed briefs, and already fully considered and determined. They present no new consideration and are fully met by the opinion."
But this does not show that any motion was made in the Supreme Court or any ruling had thereon. The second reason assigned is, that the court based its conclusion upon this improper testimony. It is true reference is made to a motion to suppress, but it is only by way of description of the improper matter, and the motion referred to is one "shown by the record," and the only such motion is the one made in the District Court. The record shows none in the Supreme Court.
Again, it is insisted that the denial of the rehearing, one of the grounds therefor being that already stated, is in itself a sufficient objection and exception to the testimony. But when the petition for rehearing was filed, the case had been decided. A petition for rehearing is no more significant than a motion. for a new trial, which, as well settled, presents no question for review in this court. Further, it would be strange if a case could be submitted on certain testimony and decided, and then the defeated party could by motion for a new trial or petition for rehearing compel the striking out of a part of that testimony, and thus a retrial of the case. By not challenging
Opinion of the Court.
the objectionable testimony until after the decision, he waives his right to challenge it at all.
Again, after the decision the defendant made application for a statement of the facts of the case, and also the rulings of the court on the admission and rejection of the evidence, to be transferred to this court, which motion was consented to by the United States, and a statement of facts prepared. Thereafter, the defendant moved to have included in such statement the testimony of Treadwell, the rulings of the District Court on the motions, and also the rulings of the Supreme Court upon said testimony, which motion was denied, and on complaint of the defendant that the statement did not contain any rulings of that court on the admission or rejection of evidence, and especially with respect to the testimony of John B. Treadwell, and the exhibits filed therewith, the Supreme Court said: "The motion for an additional finding touching the admission of the deposition, map, and exhibits of John B. Treadwell has been considered. The appeal was taken by the United States. There being no cross appeal by the appellee, we decline to review the action of the court below, as that is not before us on this appeal, and overrule said motion and decline any action upon it for reasons stated."
Whatever may be thought of the reason given by the Supreme Court, the fact appears from this language that present action only was invoked, which was action after the decision; and, further, that such action was only in reference to a review of the ruling of the District Court. Indeed, not only is the silence of the record conclusive against any motion in the Supreme Court to exclude the testimony, or any action by that court in the way of exclusion, but also the fair inference, from all the matters presented by counsel, is that after the decision it was sought to get from the Supreme Court only some review of the ruling of the District Court on the motion to exclude the testimony. We cannot review the action of the District Court, and no action was taken by the Supreme Court prior to the decision. The appellant can, therefore, take nothing by this contention.
Again, it is insisted that upon the facts of the case the