
    [Civil No. 1534.
    Filed November 8, 1917.]
    [168 Pac. 645.]
    RALPH CAMERON, Appellant, v. W. W. BASS, Appellee.
    1. Injunction — Trespass—Plaintiff's Eight to Possession. — In an aetion to enjoin erection of a building and tbe exercise of other aets of ownership of land, plaintiff must show an exclusive right to possession.
    2. Mines and Minerals — Action to Establish Eights — Pleading.—A complaint setting forth aets of location, proper maintaining of boundaries, posting and recording of location notice, sinking of shaft and such acts, necessary performance of work each year and improvements, states a prima fade right to the exclusive possession of a mining location in an action to restrain trespass.
    3. Pleading — New Matter in Answer — Reply.—An allegation in an answer in an action to restrain trespass that the land department had refused plaintiff a patent on the ground that the land was non-mineral was new matter as against a complaint stating a prima fade case by stating merely the acts of location of a mining claim, and if not controverted is a bar.
    4. Mines and Minerals — Mining Claims — Jurisdiction op Land Department. — The land department has jurisdiction on application for a patent to a mining claim to decide as to whether a location is nonmineral, although after location the land was taken into a national forest reserve.
    5. Mines and Minerals — Decisions op Land Department — Conclusiveness. — A decision of the land department that a mining claim previously located was nonmineral is binding on the world, and renders the location void ab initio, in the absence of fraud, aceident, imposition, or mistake.
    6. Judgment — State Courts — Conclusiveness — United States.— A decision of a state court that plaintiff is entitled to exclusive possession of a mining claim is not binding on the government if not a party thereto, and the land department can declare the land nonmineral, and defeat the location.
    [As to whether a state court can lawfully interfere with execution of lawful process of federal court, see note in '76 Am. Deo. 223.]
    APPB'AIi from a judgment of the Superior Court of the county of Coconino. F. W. Perkins, Judge.
    Affirmed.
    STATEMENT OR PACTS BY THE COURT.
    The appellant commenced this action to enjoin the appellee from erecting a building and from committing other threatened alleged acts of trespass upon the Cape Horn mining claim. The said mining claim is situate within the “Francis mining district” in Coconino county. The plaintiff asserts title as of a mining location and the exclusive right of possession thereto, derived from his said mineral location. The defendant asserts his right to perform all the acts charged against him in the complaint upon the authority of a permit issued to him by the government authorities controlling the national forest reserve within the boundaries of which the point of land in dispute is situate. The defendant denies the validity of plaintiff’s alleged right of possession, and asserts that plaintiff’s mineral location is void, for the reason the plaintiff has failed to discover mineral in place within the boundaries of such location, and asserts that the said land is nonmineral in character and has been conclusively so determined by the United States land department. Upon a hearing the court denied plaintiff’s application for the perpetual writ of injunction, and ordered the action dismissed. The plaintiff appeals.
    Mr. Robert E. Morrison and Mr. Edward M. Doe, for Appellant.
    Mr. Thomas A. Flynn, United States Attorney, Mr. J. O. Seth and Mr. Gerald Jones, for Appellee.
   CUNNINGHAM, J.

(After Stating the Facts as Above).— Plaintiff’s right to a restraining order against one about to erect a building and threatening to exercise other acts of ownership over land would depend upon the fact whether the plaintiff had the exclusive right of possession of the land affected by the defendant’s alleged acts and threatened acts. This is elementary, and certainly needs no citation of authorities in support of the proposition.

The plaintiff bases his exclusive right of possession upon the validity of the location of the Cape Horn mining claim initiated by him on the tenth day of April, 1902. His complaint sets forth the acts of location performed by him beginning with said tenth day of April, by the discovery of mineral thereon and thereafter the other necessary acts of maintaining the boundaries of the claim on the ground, the posting and recording of the location notice, sinking of the discovery shaft, etc. The plaintiff showing his right to continue in the possession of a valid mining claim alleged that every year since the date of said location to the year in which the action was commenced he performed the necessary amount of the required annual work and labor thereon; that he performed at least $100 worth of work and improvements upon said claim each of said years, including the year 1912. The facts therein set forth are sufficient to show prima facie a right in the plaintiff to the exclusive possession of the Cape Horn lode claim.

The defendant controverts the discovery of mineral within the boundaries of the said location, and alleges that the lands embraced within such location are nonmineral in character, and were not subject to location as a mining claim at any time, and that the United States general land office has so determined the character of such land as nonmineral. The defendant thereupon disputes the plaintiff’s exclusive right to the possession of the said portion of the surface of such location claimed by defendant, while admitting all of the facts alleged in the complaint except plaintiff’s exclusive right to the possession, and pleads the determination of the said land office as an estoppel in bar of plaintiff’s said right.

The facts set forth in the answer as conferring jurisdiction upon the general land office to determine the mineral character of such mining claim are briefly as follows: That on the twenty-fourth day of May, 1906, the plaintiff filed his application for a mineral patent for said claim in the local land office; that on the eleventh day of February, 1909, the Secretary of the Interior of the United States rejected the said application for patent, and denied the right of the said applicant, plaintiff, to the said premises; and that thereafter, on April 3, 1912, the commissioner of the general land office held said decision final.

Of course, the matter of estoppel introduced into the case by the defendant’s answer is new matter requiring a reply as such, else the facts well pleaded, setting up such new matter, are deemed admitted as true. The plaintiff has not denied the alleged decision of the Secretary of the Interior, but attempts to avoid the force of such decision: First, because the department is without jurisdiction to determine plaintiff’s right of possession; second, because in a certain action in the courts, wherein the plaintiff’s right to possession of said mining claim was involved, the court determined that plaintiff possessed the full legal right to occupy all of the ground embraced within the said location except the railroad right of way initiated by the adverse party through its predecessors in title at a time prior to the date upon which plaintiff initiated his said rights by mineral location. In other words, in the first place, the appellant does not deny the fact of an adverse decision by the general land office, but he denies the legal effect of that decision ; in the second place, he does not plead an adjudication of the fact by a local court, but offers proof of an adjudication by such court in his favor establishing his exclusive right to the possession of the land in suit here.

In the ease of Grand Canyon Ry. Co. v. Ralph H. Cameron, decided February 11, 1909, pleaded by the defendant in estoppel, the department had before it the question of the character of the land embraced in the Cape Horn lode claim. Having considered the evidence and reviewed the authorities, Secretary Garfield said: “Upon the entire record, viewed and interpreted in the light of the leading authorities on the subject, the department is clearly of the opinion that the land is not shown to possess such mineral character and values as to justify the land department in awarding the desired patent.”

After noticing the fact of the establishing of the national monument and the withdrawal of the lands therein embraced, the Secretary says: “It is the further result of the evidence, and the department holds, that the several mining locations, with the apparent exception of the Magician lode claim, do not stand upon such disclosures or indications of valuable mineral in rock in place therein, prior to the establishment of the national monument and the withdrawal of the lands therein embraced, as to bring them within the saving clause of the executive order. The right of Cameron to continue possession or exploration of those claims is hereby denied, and the land covered thereby is declared to be and remain part of the Grand Canyon national monument, as if such locations had not been attempted.”

In the same case the appellant here, and applicant for patent therein, objected to the land office going into an investigation and a hearing urging as one of his grounds of objection “that in an action to quiet title, a final judgment in favor of Cameron had been rendered in a suit involving all the matters now at issue before the land department, which decision and judgment of the court, it was asserted, is binding upon the department.” The Secretary said: “The above objections are not well taken. The company’s so-called ‘adverse claim’ was dismissed, and the pendency of the company’s suit presented no bar to the hearing. The findings and judgment of the court in Cameron’s suit to quiet title as against the company are not binding upon the land department; that action not being an adverse suit.”

Hence the mineral character of the land embraced within the Cape Horn lode claim was a matter essential to be determined in the proceeding before the department. That matter was inquired into, evidence pro and com, was offered, received and considered. ’ The question of fact of the mineral character of the claim was determined after a full, fair, and comprehensive trial, and on conflicting evidence the land department finally determined the essential fact so under consideration, and for all time and all purposes that determination stands as an unimpeachable record of the actual character of the land at the time the appellant commenced his mineral location, called the Cape Horn, and at all times up to and including the date of appellant’s application for patent. Unless the land department does not possess the power to determine the fact of the character of public lands, the determination reached in the patent proceeding is binding on the world. If the land department possesses the jurisdiction to inquire into and determine the fact, then its determination is conclusive, in the absence of mistake, accident, imposition, or fraud. The question of the land department’s jurisdiction in such case was considered by the department in the light of the public land laws and the court decisions in the Matter of Nichols and Smith on Rehearing. The opinion is written by the First Assistant Secretary of the Interior, and bears date of February 5, 1917. The conclusion reached is stated as follows: “Upon a careful review of this question and after mature consideration, the department is convinced that under the law and authorities it possesses jurisdiction and authority over the subject matter of the present case”; that is, to determine the mineral character of mining locations situated within a national forest reserve. The law cited in the opinion is found in the following statutes: Sections 441, 453, and 2478, Revised Statutes of the United States (U. S. Comp. Stats. 1916, §§ 681, 699, 5120); Act of Congress, February 1, 1905, c. 288, 33 Stats, at Large, 628. The authorities cited in the opinion are as follows: Low v. Katalla Co., 40 L. D. 534; Nelson v. Brownell, 193 Fed. 641, 113 C. C. A. 509; Lassley v. Brownell, 199 Fed. 772, 118 C. C. A. 362; United States v. Schurz, 102 U. S. 378, 26 L. Ed. 167; United States v. Beebs, 127 U. S. 338, 32 L. Ed. 121, 8 Sup. Ct. Rep. 1083; Bishop v. Gibbon, 158 U. S. 155, 39 L. Ed. 931, 15 Sup. Ct. Rep. 779; Cosmos Co. v. Gray Eagle Co., 190 U. S. 301, 47 L. Ed. 1064, 23 Sup. Ct. Rep. 692; Knight v. United States Land Assn., 142 U. S. 161, 35 L. Ed. 974, 12 Sup. Ct. Rep. 258; Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 47 L. Ed. 1074, 23 Sup. Ct. Rep. 698; Brown v. Hitchcock, 173 U. S. 473, 43 L. Ed. 772, 19 Sup. Ct. Rep. 485; McDaid v. Oklahoma ex rel. Smith, 150 U. S. 209, 37 L. Ed. 1055, 14 Sup. Ct. Rep. 59; Burfenning v. Chicago, St. P. etc. Ry., 163 U. S. 321, 41 L. Ed. 175, 16 Sup. Ct. Rep. 1018; Clipper Min. Co. v. Eli Min. & Land Co., 194 U. S. 220, 48 L. Ed. 944, 24 Sup. Ct. Rep. 632; Cameron v. Weedin (D. C.), 226 Fed. 44; Lane v. Cameron, 45 App. D. C. 404.

Both the law and the authorities sustain the conclusion reached. The citation of additional authorities is not required. However, in Barden v. Northern Pac. R. Co., 154 U. S. 324, 38 L. Ed. 992, 1001, 14 Sup. Ct. Rep. 1038, the court says:

“It is the established doctrine, expressed in numerous decisions of this court, that wherever Congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the land department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to inquire into and determine as to the existence of such facts, and in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attack.”

In order to recover in this case the appellant must necessarily disregard the finding of the land department to the effect that the land embraced within the Cape Horn lode claim is nonmineral in character. The appellant bases his possessory title solely upon the location commenced on the tenth day of April, 1902. The land office has decided that the land embraced within such location is nonmineral, and therefore not subject to location as such under the mining laws. The result of that decision is that appellant’s location of the Cape Horn lode claim is void ab initio, that it never gave appellant any rights therein, and that such actual possession as appellant had based upon a mining location was a possession founded upon no right as against the government because of the nonmineral character of the land. Appellant’s possession was subject to termination by the government at any time, and was terminable as to the portion of the mining claim described in the permit issued to the appellee on the tenth day of December, 1913. The appellant attacks the judgment of the Secretary of the Interior denying the right of Cameron to continue in possession or exploration of the claims rejected and locations canceled, and the order expressly declaring that the land covered by such canceled locations is a part of the Grand Canyon national monument.

In answer to all of the appellant’s arguments put forth upon every feature of this contention, it is sufficient to say that, at the time the appellant initiated his location, and at the time he applied for a patent, the land located and applied for was not in character land subject to be disposed of under the mining laws. From the beginning it was of the character of land subject to be set aside and included in a national monument, and did not lose such character by having been covered by appellant’s mineral location, and having been in the actual possession of the claimant claiming by right of such void location. We may concede that the land department has no jurisdiction to cancel a mining location, yet the effect is the same where the land department decides that the land embraced within the boundaries of a mining location was as a fact nonmineral in character, and therefore not subject to location under the mining laws. Where such decision becomes final, certainly the claimant can assert no rights dependent thereon, and while the evidences of location are not physically brought before the department and canceled, the decision is efficient and sufficient to extinguish absolutely, and forever, all force and effect said location presumably ever had, and to destroy such location and all evidence thereof for any purpose.

Any attempt on the part of the claimant to thereafter assert any right-based upon said location, so decided invalid, is a collateral attack upon the decision and without effect. Hence the appellant has failed to show any right to the possession of the land here in question superior to the appellee’s right. No right at all which the courts can regard as a right to possession has been shown by the plaintiff.

True, the plaintiff offered in evidence a judgment of the district court of the fourth judicial district of the territory of Arizona, in and for the county of Coconino, rendered in an action entitled Ralph H. Cameron against Grand Canyon Railroad Co., wherein language appears purporting to adjudge plaintiff the owner of the Cape Horn lode claim, and all thereof, except that portion claimed by the railroad company as a right of way. The court in that case was not called upon to determine the mineral character of the land withiu the mineral location, and did not determine that question. The court found as a fact that the railroad acquired its rights to the land in conflict with the location of Cameron at a time prior in date to Cameron’s location, and hence acquired a prior right. The judgment would have been the same in effect if the court should have found as a fact that the location of the mining claim was absolutely void., That portion of the judgment purporting to quiet Cameron’s title in and to' the balance of the mining claim not covered by the rail road’s right of way was clearly beyond the issues involved. However, the government was not a party to that action, and was not bound by the broad decision rendered, if rendered with jurisdiction of the subject matter.

The order of the trial court is without reversible error, and should be affirmed.

FRANKLIN, C. J., and ROSS, J., concur.  