St. Louis Mining Milling Company v. Montana Mining Company/Opinion of the Court
While it is conceded by plaintiffs in error that there is no express prohibition on the transaction involved in the record, it is contended that the contract was contrary to the policy of the law, and that the question thus raised is necessarily a federal question. Granting that this is so, and that the motion to dismiss must, therefore, be overruled, we are of opinion that there was color for the motion, and that the case may properly be disposed of on the motion to affirm.

The supreme court of Montana ruled that, in the absence of statutory prohibition, there was no reason in law or equity why the contract sought to be enforced should be held illegal, and we concur in this disposition of the federal question suggested.

The public policy of the government is to be found in the constitution and the laws and the course of administration and decision. License Tax Cases, 5 Wall. 462; U.S. v. Trans-Missouri Freight Ass'n, 166 U.S. 340, 17 Sup. Ct. 540.

The proposition of plaintiffs in error is that, where an application to enter a mining claim is made, and there is embraced therein land claimed by another, it is the duty of the latter to file an adverse claim, and thereafter bring in some court of competent jurisdiction an action to determine the right to the area in conflict, which action must be prosecuted to a final judgment or dismissed; and that no valid settlement can be made by which such adverse claimant can acquire any interest in the ground when thereafter patented by the applicant. We are not aware of any public policy of the government which sustains this proposition.

Where there is a valid location of a mining claim, the area becomes segregated from the public domain and the property of the locator. There is no inhibition in the mineral lands act against alienation, and he may sell it, mortgage it, or part with the whole or any portion of it, as he may see fit. Forbes v. Gracey, 94 U.S. 766; Manuel v. Wulff, 152 U.S. 510, 14 Sup. Ct. 651; Black v. Mining Co., 163 U.S. 449, 16 Sup. Ct. 1101.

The location of the Nine Hour lode was in all respects sufficient and valid. When the dispute afterwards arose between Robinson and Mayger as to a portion of it, there was nothing to compel the filing of an adverse claim. The settlement made gave Robinson an equitable title immediately, and ultimately he was to have the complete legal title, to a piece of ground, which it seems rightfully belonged to him. The government was not defrauded in any way, nor was there any legal or moral fraud involved in the transaction. The settlement and adjustment of the dispute with reference to the right of possession appears upon its face to have been satisfactory to the parties when made, and should be upheld unless contravening some statute or some fundamental principle of law recognized as the basis of public policy. There was no such statute, and settlements of matters in litigation or in dispute without recourse to litigation are generally favored, and are apparently of frequent occurrence in regard gard to mining land claims; nor is there anything in the decisions of this court to throw doubt on their validity.

In Ducie v. Ford, 138 U.S. 587, 11 Sup. Ct. 417, a contract of the character of that under consideration was passed on in a suit brought to enforce its specific performance, and it was assumed that the contract was not void as in contravention of any statute of the United States, or contrary to public policy. In Meyers v. Croft, 13 Wall. 291, this court was asked to hold that the prohibition against alienation found in the last clause of the twelfth section of the pre-emption act of 1841 extended from the date of entry to the actual issue of patent. This the court declined to do, and decided that the object of the act was attained when the pre-emptor went with clean hands to the land office, and proved up and paid for his land. And the court said: 'Restrictions upon the power of alienation after this would injure the preemptor, and would serve no important purpose of public policy. It is well known that patents do not issue in the usual course of business in the general land office until several years after the certificate of entry is given, and equally well known that nearly all the valuable lands in the new states admitted since 1841 have been taken up under the pre-emption laws, and the right to sell them freely exercised after the claim was proved up, the land paid for, and the certificate of entry received. In view of these facts, we cannot suppose, in the absence of an express declaration to that effect, that congress intended to tie up these lands in the hands of the original owners until the government should choose to issue the patent.' In Davenport v. Lamb, 13 Wall. 418, a covenant made by certain grantors 'that, if they obtain the fee simple to said property from the government of the United States, they would convey the same to the grantee, his heirs or assigns, by deed of general warranty,' made with reference to a tract of land taken up under what was known as the 'Oregon Donation Act,' was upheld, although the point that the covenant was against public policy was distinctly made.

In Lamb v. Davenport, 18 Wall. 307, Mr. Justice Miller, speaking of claims under that act, said: 'They were the subjects of bargain and sale, and, as among the parties to such contracts, they were valid. The right of the United States to dispose of their own property is undisputed, and to make rules by which the lands of the government may be sold or given away is acknowledged; but, subject to these well-known principles, parties in possession of the soil might make valid contracts, even concerning the title, predicated upon the hypothesis that they might thereafter lawfully acquire the title, except in cases where congress has imposed restrictions on such contracts.'

And to the same effect see Gaines v. Molen, 30 Fed. 27, where the subject was considered by Mr. Justice Brewer, then circuit judge.

Anderson v. Carkins, 135 U.S. 483, 10 Sup. Ct. 905, involved a contract made by a homesteader to convey a portion of a tract when he should acquire title thereto from the United States, and was disposed of on different grounds. It was stated in the opinion that: 'The theory of the homestead law is that the homestead shall be for the exclusive benefit of the homesteader. Section 2290 of the Revised Statutes provides that a person applying for the entry of a homestead claim shall make affidavit that, among other things, 'such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not, either directly or indirectly, for the use or benefit of any other person.' And section 2291, which prescribes the time and manner of final proof, requires that the applicant make 'affidavit that no part of such land has been alienated, except as provided in section twenty-two hundred and eighty-eight,' which section provides for alienation for 'church, cemetery or school purposes, or for the right of way of railroads.' The law contemplates five years' continuous occupation by the homesteader, with no alienation except for the named purposes. It is true that the sections contain no express prohibition of alienation, and no forfeiture in case of alienation; yet under them the homestead right cannot be perfected in case of alienation, or contract for alienation, without perjury by the homesteader. * * * There can be no question that this contract contemplated perjury on the part of Anderson, and was designed to thwart the policy of the government in the homestead laws, to secure for the benefit of the homesteader the exclusive benefit of his homestead right.'

In the case at bar there was no statute which, in express terms, or by any fair implication, forbade the making of such a contract as that proceeded on here.

Decree affirmed. 

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