Berg v. Koegel, 16 Mont. 266

Berg v. Koegel

16 Mont. 266 | Mont. | 1895

DeWitt, J.

This is an action brought by plaintiffs to quiet their title in and to certain mining premises against the-claims of defendants to the same premises. The plaintiffs werenonsuited, and judgment entered for defendants, from which judgment this appeal is taken.

One of the grounds for the nonsuit was the defect in the location notice of the plaintiffs. The location notice was dated January 1, 1891. It was verified, as appears by the affidavit, January 1, 1890. It was recorded January 2, 1891. The testimony shows that the discovery and location was made January 1, 1891. Therefore it appears by the recorded notice that it was verified a year before the discovery and location of the claim. There was no attempt made upon the trial to show that the affidavit was wrongly dated by mistake of the notary. The only testimony upon the subject of when the notice was made out is the testimony of a witness who stated that it was made out the last day of January before he went upon the ground. As he went upon the ground and located the claim in January, 1891, it was probably a mistake of the transcriber *267when he made the testimony to appear that the notice was made out the last of January. The witness probably said the last of December. But, in any event, the verification itself shows the date one year prior to the location, and the best that the evidence does to help the plaintiffs shows that the verification was made certainly before the location, for the witness says that it was made out and sworn to before the location was made. Our statute (section 1177, div. 5, General Laws) provides that a person making a discovery and location of a quartz lode vein shall file a declaratory statement thereof on oath. A declaratory statement on oath, made perhaps a year, and at least some time, before the discovery and location, is certainly not a declaratory statement of the location. A person surely cannot make affidavit of facts before the facts came into existence.

We are therefore of opinion that the testimony of the plaintiffs themselves showed that they had not made or filed a declaratory statement on oath of the discovery or location of their claim. The court therefore properly granted the non-suit. This decision is made upon the authority of McCowan v. Maclay, ante, page 234, to the effect that our statute requiring the location notice to be verified is not in conflict with the laws of the United States upon the subject of the location of mining claims. The judgment is affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.