85 P. 109 | Idaho | 1906
Lead Opinion
This suit was instituted by the appellant in support of an adverse claim to that portion of mining ground in conflict between the Anna and Ambergris lode claims. The appellant is the owner of the Ambergris lode and the respondents are the owners of the Anna lode. The respondents base their claim upon a location dated the nineteenth day of August, 1901, on which date Paulson and Hutton, who were two of the owners of the Hercules lode claim, made their • location of the Anna claim, and thereafter, on.August 31st, caused the same to be duly recorded. On the fourth day of October, 1901, John King, the predecessor in interest of the appellant, made discovery of the Ambergris claim and posted what he terms a preliminary notice, and marked the boundaries of the claim and performed the location work. On October 25th, King posted legal and lawful notice on the Ambergris claim, and on the same date caused the notice to be duly recorded. The Ambergris location overlapped a portion of the Anna claim. The conflict is shown by plaintiff’s exhibit “E,” which also shows the location of the Anna and Ambergris with relation to the Hercules, concerning which considerable evidence was introduced and about which there is much controversy in this case. For convenience in reference, exhibit “E” will be included herein, and is as follows:
*112
Respondents applied for a patent to the Anna, and the appellant thereupon, within the statutory time, filed an adverse claim and commenced this suit in support thereof. The appellant bases its claim to the right of possession of the ground in conflict upon the grounds; “1. Because of the fact that the Anna is not based upon any valid discovery of the ledge, lode or vein of mineral-bearing rock in place; 2. Because the respondents did not within sixty days from the date of their location perform the location work required by law.” The cause was tried by the court and findings of fact and conclusions of law were made and filed, and judgment was thereupon entered in favor of the defendants. Plain
Our consideration of the objection to the class of evidence admitted on behalf of the defendants has forced us to the conclusion that such evidence is admissible and competent in this class of cases. If a' miner has discovered certain mineral indications which he has followed up with the result that a rich and valuable ore body has been developed therefrom, it seems clear that another miner finding similar indications and conditions on contiguous ground or in the immediate vicinity would be in a measure justified in following up those evidences with a reasonable expectation of finding mineral deposits. And this is true even though the indications, rock and deposits found are such as the expert, scientist, geologist and mineralogist in their finest theories tell him are not evidence of mineral deposits, or even that they are evidences of the entire absence of mineral. As a matter of fact, and greatly to their credit, those scholars who have added so largely to the store of knowledge have been observant and progressive enough to, from time to time, revise and modify their views and theories to keep apace with the actual demonstrations of the man who risks his judgment (though ofttimes a hazard) and delves into the earth at uninviting and unseemly places. The miner, as well as the man engaged in any other occupation or business, is entitled to act on experience and observations, and while he may not, and indeed will not, always attain the same results, the exception to the rule does not preclude him from availing himself of his own observations and those of his fellows as
In Harrington v. Chambers, 3 Utah, 94, 1 Pac. 362. the syllabus says: “Evidence as to what sort of indications other miners would follow in attempting to find a lode is admissible, not as stating the opinions of third parties, but as stating the value of the indications in the mining community. A lode is whatever the miners could follow and find ore.” This holding by the supreme court of Utah was affirmed by the United States supreme court in Chambers v. Harrington, 111 U. S. 350, 28 L. ed. 452, 4 Sup. Ct. Rep. 28. This brings us to a consideration of the application made by plaintiff for permission to examine the Hercules for the purpose of enabling its witnesses to testify concerning the natural conditions and formation as found in that mine. It does not seem to us that this phase of the case demands very extensive consideration here. It is so manifestly unjust and incompatible with the spirit of judicial inquiry to allow a litigant to employ, as a standard of comparison and test, a mine over which he has custody and absolute control, and from which he may exclude every other person, without
The appellant urges the insufficiency of the evidence produced by the respondents to establish a discovery of mineral-bearing rock in place by the locators of the Anna, and also its insufficiency to show that the location work required by law was ever done on the Anna claim prior to the Ambergris location. As above indicated, this case must be remanded for a new trial, and these questions of fact will have to be again submitted to a jury or the court, and a greater weight or preponderance of evidence on one side or the other may be produced at the next trial, and new and additional facts may be shown. For that reason we will express no opinion as to the weight and sufficiency of the evidence presented in this record.
There appears to be some difference between the respective parties as to the legal principle applicable in this case touching the discovery on the Anna. It should be borne in mind that the strictness with which the courts will inquire into the sufficiency and validity of an alleged mineral discovery depends upon the class of claimants to which the contestants belong. In Migeon v. Montana Cent. Ry. Co., 77 Fed. 254, 23
“The question as to what constitutes a discovery of a vein or lode under the provisions of section 2320 of the Revised Statutes has been decided by many courts. All the authorities cited by appellants are referred to in Book v. Jus
‘ ‘ The location of the Kirby was made in 1886. The discovery of mineral then made was sufficient to induce the locators and their grantees to perform the amount of annual labor thereon as required by the mining laws; to expend their time and money in prosecuting the work thereon, in the belief and expectation of finding ore of profitable value therein.”
The following authorities are to the same effect: Book v. Justice Min. Co., 58 Fed. 120; McShane v. Kenkle, 18 Mont. 208, 56 Am. St. Rep. 578, 44 Pac. 979, 33 L. R. A. 851; Muldrick v. Brown, 37 Or. 185, 61 Pac. 428; Iron S. M. Co. v. Cheeseman, 116 U. S. 529, 29 L. ed. 712; 1 Snyder on Mines, sec. 345; Harrington v. Chambers, 3 Utah, 94, 1 Pac. 375.
Judging from the cases cited by the author in support of the foregoing statement, we infer that he makes that statement as a general principle and without any intention of
The foregoing views cannot, of course, be carried to the extent of relieving anyone who claims ground under the mineral laws of the United States from a substantial compliance with the United States statutes in the matter of mineral discovery. The observation of Justice Field in Erhardt v. Boaro, 113 U. S. 537, 28 L. ed. 1113, 5 Sup. Ct. Rep. 560, is worthy of repetition here. He said: “It would be difficult to lay-down any rules by which to distinguish a speculative location from one made in good faith with a purpose to make excavations and ascertain the character of the lode or vein, so as to determine whether it will justify the expenditures required to extract the metal; but a jury from the vicinity of the claim will seldom err in their conclusions on the subject.”
Anent the contention that the location work 'was never done on the Anna, counsel for appellant cite Lavagnino v. Uhlig, 198 U. S. 443, 49 L. ed. 1119, 25 Sup. Ct. Rep. 716, while respondents cite on the same point Belk v. Meagher,
For the error above considered, the judgment must be reversed, and it is so ordered, and a new trial is granted. Costs awarded in favor of appellant.
Concurrence Opinion
Concurring. — I concur in the conclusion reached and fully indorse what is said by Mr. Lindley in volume 1 (second edition), section 336. This court in Burke v. McDonald, 3 Idaho, 296, 29 Pac. 98, did not say, nor intend to convey the idea, that a valid mining claim could be made upon alluvial soil not containing a vein or lode, or upon loose slide rock or debris on the mountainside, simply because the locator was “willing” to spend his time and money in prospecting it with the expectation of finding a lode or vein of mineral-bearing rock. In that case the court said: “And a valid location of a mining claim may be made of a ledge deep in the ground) and appearing at the surface, not in the shape of ore, but in vein matter only.” The terms “vein” and “lode” have been so often defined by the courts of the United States, that it is unnecessary for me to cite many
That section contemplates that the vein or lode must be first discovered before a valid location can be made. It provides, inter alia, that no claim shall extend more than three hundred feet on each side of the middle of the vein or lode, and as the law contemplates that boundaries of the claim must be marked upon the gróund, how could they be marked upon the ground without having first discovered the vein or lode, in order to ascertain the distance of three hundred feet on each side of the center thereof? Section 3100 of the Revised Statutes of Idaho, as amended by the Laws of 1899, page 367, is as follows: “Mining claims hereafter located upon veins or lodes of quartz, or other rock in place bearing any of the metals, or other valuable deposits mentioned in section 2320 of the Revised Statutes of the United States, may extend to three hundred feet on each side of the middle of the vein or lode; provided, that when the locators have set the stakes, posts or monuments described in the next section, to indicate the line of the vein, ledge or lode, such stakes, posts or monuments must be taken for the purposes of said location, to mark correctly the line thereof, and such line must not be afterward changed so as to affect rights acquired or interfere with any location made subsequent thereto.” That section provides that the location may extend three hundred feet on each side of the middle of the vein or lode, and it contemplates that the locator shall mark the same with posts or monuments to indicate
In Migeon v. Montana Cent. Ry. Co., 77 Fed. 249, 23 C. C. A. 156, Judge Hawley, who has written many of the most important mining decisions on the Pacific slope, referring to the case of Book v. Justice Min. Co., 58 Fed. 106, said: “The liberal rules therein announced are substantially to the effect that when a locator of a mining claim finds rock in place [observe the words “finds rock in
"While in the opinion in this ease it is not intended to hold that a valid location could be made upon loose debris or slide rock without first discovering a lode or vein therein, I desire to emphasize my views upon that question as above set forth.