November 17, 1964

in-interest for the length of time by which appellant's holding is short. See discussion on "tacking" and "privity" in 3 Am. Jur. 2d, Adverse Possession, § 58 (1962). The decision below indicated that one requirement under the act was lacking, that of good faith, because appellant's grantor, her father, filed a color of title application, Sacramento 036278, on December 11, 1944, for the same tract as well as other land. That application was rejected and the case closed on July 1, 1949, for his failure to substantiate his right of claim. Appellant states that she does not know why her father's application was not processed through to a final decision, although she is informed that his attorney did not supply a requested abstract of title.

The fact that appellant's father attempted to obtain title from the United States and was unsuccessful is significant since it manifests a recognition by him of the superior title of the United States. An admission or recognition of the existence of a title superior to that of one claiming it has been considered as breaking a statute of limitations and disrupting the continuity of adverse possession under State laws recognizing the acquisition of title through adverse possession. See 3 Am. Jur. 2d, Adverse Possession, § 82 (1962); Meaders v. Moore, 132 S.W. 2d 256, 125 A.L.R. 817 (Tex. Comm. of Apps. 1939). Although many State statutes giving rights of title to persons holding under adverse possession for a specified length of time do not require that there be a "color or claim of title" and "good faith," other than in holding the land adversely to the interests of others, the Color of Title Act requires that there be both.

Appellant appears to suggest that she and others in her family, being lay persons, have held the land in good faith because they do not understand the technical meaning of the words "title," "fee title," "patented," or "unpatented." However, the Supreme Court has considered whether an individual acquired a right of title by prescription under a royal decree of Spain conferring ownership on those who had possessed lands for a requisite time under "just title and in good faith” and held that, despite the grantee's assertions and belief that he had title, if public facts were known to him showing that the conveyance to him was void,

he would not be regarded as holding in good faith, within the requirement of the decree, because a man is not allowed to take advantage of his ignorance of law. Tiglao v. Insular Government, 215 U.S. 410, 417 (1910).

This statement adequately answers any suggestion by appellant that her father had good faith after his color of title application was rejected.

It is apparent than that at least from the time appellant's father filed his color of title applicaion he cannot be considered as having possessed the land under color or claim of title in good faith as required. It has been held under the Color of Title Act that any period of time during which a claimant knows or should know that title to the land is in the United States must be disregarded in determining whether the land has been held for 20 years in good faith adverse possession. Edward T. Harris, Sr., A-27785 (January 19, 1959). Also, it has been held that the possession of a grantor could not be tacked on to that of an applicant where the grantor did not have reason to believe that he had title to the land. Thomas Ormachea, A-30092 (May 8, 1964). Further, even though land may have been occupied, improved, and held by someone else in good faith for more than 20 years under color of title, if a person acquiring the land is aware that title is in the United States, it has been held that he is lacking in good faith and has no right to a patent under the Color of Title Act. Anthony S. Enos, 60 I.D. 106 (1948) and 60 I.D. 329 (1949); Clement Vincent Tillion, Jr., A-29277 (April 12, 1963). In applying the principles of all of these cases, it is concluded that since appellant's grantor could not have been holding the claimed tract in good faith at the time he conveyed to appellant, this disrupted the continuity of any prior holding in good faith even if such prior holding were for the statutory period, thus preventing the appellant from being able to tack on the holding of her grantor and his predecessors. Therefore, she lacked a holding of the tract in good faith for 20 years under a continuous chain of title. The lack of the statutory requisite of a holding in good faith for 20 years by the applicant and her grantor in addition to the failure to substantiate that the claim was held under any valid description identifying the tract were proper bases for the rejection of appellant's application.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4) (a); 24 F.R. 1348), the decision appealed from is affirmed.

ERNEST F. HOм,
Assistant Solicitor.

UNITED STATES v. HUMBOLDT PLACER MINING COMPANY AND DEL DE ROSIER

A-30055

Decided November 20, 1964

Mining Claims: Contests-Rules of Practice: Government Contests

A determination of the invalidity of a mining claim by the manager of a land office is proper in a Government contest when the claimant fails to answer

November 20, 1964

within the period allowed by the departmental rules of practice; it is no excuse that the contestee has brought an action in the Federal district court to enjoin the contest proceedings and secured a temporary restraining order when thereafter the restraining order is dissolved and, although the contestee appeals to the circuit court, he fails to have the injunction restored or a new one granted.

Mining Claims: Contests-Rules of Practice: Government Contests-Regulations: Waiver

Where a mining contest was initiated by this Department and the contestees did not file an answer but brought an action to enjoin the proceedings in the Federal courts and secured a temporary restraining order against the proceedings, but failed to obtain a further stay after the district court dissolved the restraining order or otherwise to relieve themselves of the necessity of filing an answer to the contest complaint, the secretary will nonetheless entertain a petition to have a belated answer accepted where it appears that the litigation was continued in the appellate courts on the assumption of all parties and the courts that the contest proceedings had been held in abeyance and no rights of third parties are affected.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

Humboldt Placer Mining Company and Del de Rosier have appealed to the Secretary of the Interior from a decision of the Division of Appeals of the Bureau of Land Management, dated April 24, 1963, affirming a decision of the Sacramento land office, dated February 7, 1963, which rejected their answer to an amended contest complaint against their placer mining claims and dismissed their motion to dismiss the complaint. The land office decision was based on the ground that the answer and motion were not responsive to any action pending before the Department of the Interior because the contest to which they were directed had been closed on October 11, 1960.

On November 19, 1954, the appellants filed in the Sacramento land office their applications for patent to 38 placer mining claims located in Trinity County, California. On June 27, 1957, the United States filed a condemnation action in the United States District Court for the Northern District of California to acquire title to or outstanding adverse interests in certain public land in Trinity County, California. The appellants' unpatented mining claims were located on part of the land.

Thereafter, on May 15, 1958, the State Supervisor, Bureau of Land Management, brought a contest, No. 10-747, against 18 of the claims for which patent applications had been filed, all of which were included in the condemnation action. The contest complaint charged that the claims were invalid for the reasons that the land in the claims is nonmineral, that there had been no finding of minerals in sufficient quanti

ties to constitute a discovery within the limits of the claims, and that two of the claims embraced noncontiguous land contrary to law. The appellants were properly served and filed an answer on July 16, 1958, denying the charges.

On March 17, 1960, the State Supervisor filed a petition to amend the complaint and also an amended complaint containing the same charges, but limited in its application to 4 claims in their entirety and 9 in part. The petition requested leave to file the amended complaint in full substitution for and amendment of the original complaint. The petition and the amended complaint were served upon the appellants with notice from the land office that they were allowed 15 days after receipt to respond to the petition and 30 days to answer the amended complaint and that

Unless contestees file an answer to the Amended Complaint in this office within 30 days after service of this notice, the allegations of the Amended Complaint will be taken as confessed.

The appellants filed no objection to the petition and on April 6, 1960, the land office approved the amended complaint, effective March 17, 1960, in full substitution for the original complaint. The land office again informed the contestees that unless they filed an answer to the amended complaint within 30 days after their receipt of it, the allegations of the amended complaint would be taken as confessed.

The appellants failed to answer the amended complaint but, within the 30-day period allowed for answer, they brought suit in the United States District Court for the Northern District of California against the State Supervisor and the manager of the Sacramento land office (Civil No. 8076), asking that the defendants be enjoined from proceeding further against the appellants under the amended complaint or in any other similar proceeding seeking cancellation or nullification of their mining claims. On April 18, 1960, the day the complaint was filed, the District Court issued a temporary restraining order, as prayed. Subsequently, on June 21, 1960, the court sustained the defendants' motion to dismiss, noting in its opinion the pending condemnation suit in the District Court and the contest in the Department of the Interior. The court ruled that the commencement of the suit was not an irrevocable election by the Government of the court as a forum to try the issues in the contest. It acknowledged that the court had jurisdiction but pointed out that it might await adjudication of special issues by an administrative tribunal having special competence or administrative expertise. The court also acknowledged its power to enjoin further proceedings in the contest but said "there is no good reason for the exercise of the power." Therefore, it ordered

November 20, 1964

that the temporary restraining order issued on April 18, 1960, "be, and it is, hereby vacated and dissolved." Final judgment was entered in the case on July 13, 1960. Humboldt Placer Mining Company v. Best, 185, F. Supp. 290 (N.D. Cal. 1960).

On July 14, 1960, the land office issued an order in Contest 10–747, notifying the appellants that the land office was resuming jurisdiction of the contest and that, because the 30-day period allowed for answering the amended complaint had almost expired when the suit for injunction was commenced, the contestees were allowed an additional 15 days from receipt of the order within which to file an answer and that, if an answer was not filed, the allegations of the amended complaint would be taken as confessed. Counsel for the appellants acknowledged receipt of the notice and thanked the manager of the land office for the extension of time but stated:

Relative to the resumption of jurisdiction of the Bureau, I respectfully refer you to Rule 73 (a) of the Rules of Civil Procedure as to the time allowed the plaintiffs in said Federal Court case to appeal to the United States Court of Appeals for the 9th Circuit. At any time during that period, upon the filing of notice of appeal, the appellant is entitled to a supersedeas upon the furnishing of such bond as may be fixed by the District Court.

On August 3, 1960, after the extended time for filing answer to the amended contest complaint had expired, the land office issued a decision declaring that failure to file an answer within the time allowed was considered an admission of the truth of the charges against the mining claims and holding null and void the 4 claims in their entirety and the 9 as to the portions described in the amended complaint. Thirty days were allowed for appeal. On October 11, 1960, in the absence of any action by the appellants, the land office issued a further notice declaring the contest closed in the absence of an appeal from the decision of August 3, 1960.

Meanwhile, on September 8, 1960, the appellants appealed to the United States Court of Appeals for the Ninth Circuit from the decision of the District Court dismissing the injunction suit, without, however, obtaining or attempting to obtain an injunction during the pendency of the appeal under Rule 62 (c) of the Federal Rules of Civil Procedure. On August 18, 1961, the Court of Appeals reversed the District Court on the ground that the Department of the Interior did not retain jurisdiction to adjudicate the validity of mining claims on public lands after invoking the jurisdiction of a Federal district court by filing a condemnation action in which it raised the same issue and remanded the case for adjudication of the validity of the mining claims in the condemnation action. Humboldt Placer Mining Company v.