Alfred Coleman and Edward J. McClennan v. United States

405 F.2d 72 Alfred COLEMAN and Edward J. McClennan, Appellants, v. UNITED STATES of America, Appellee. No. 20227. United States Court of Appeals Ninth Circuit. December 4, 1968. Certiorari Denied March 10, 1969. See 89 S.Ct. 1014 . George Nilsson (argued), Monta W. Shirley, Los Angeles, Cal., W. Howard Gray, Reno, Nev., Howard A. Twitty and George E. Reeves, Phoenix, Ariz., W. H. Weddell, San Bernardino, Cal., for the appellants. Wm. M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, Atty., Dept. of Justice, Stewart Udall, Sec. of the Interior, Washington, D. C., for appellee. Before CHAMBERS and JERTBERG, Circuit Judges, and THOMPSON, District Judge. PER CURIAM: 1 The mandate of the Supreme Court of the United States in this case declares: 2 "ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said United States Court of Appeals in this cause be, and the same is hereby, reversed; and that this cause be, and the same is hereby, remanded to the United States Court of Appeals for the Ninth Circuit for further proceedings in conformity with the opinion of this Court." 3 The Opinion of that…

The mandate of the Supreme Court of the United States in this case declares:

“ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said United States Court of Appeals in this cause be, and the same is hereby, reversed; and that this cause be, and the same is hereby, remanded to the United States Court of Appeals for the Ninth Circuit for further proceedings in conformity with the opinion of this Court.”

The Opinion of that Court referred to in the mandate states: “ * * * [W] e hold that the United States is entitled to eject respondents from the land and that respondents’ counterclaim for a patent must fail.” [ 390 U.S. 599 , 88 S.Ct. 1327 , 20 L.Ed.2d 170 .]

The judgment of the District Court from which this appeal was taken orders, adjudges and decrees:

“1. That the plaintiff, United States of America, is declared to be the sole owner of all right, title and interest in the lands described herein to the exclusion of any right, title or interest in any asserted mining claims or mining locations of the defendants herein.

“2. That the counterclaim of the defendant Alfred Coleman herein be, and hereby is dismissed.

“IT IS FURTHER ORDERED,…

(concurring) :

There is a puzzle here: Why did the Supreme Court remand the case to us?

But I have reluctantly concluded it left us no discretion. I have tried and failed to find some way we could salvage some part of our original opinion (see 363 F.2d 190 ) for which I retain my fondness.