95 P. 14 | Idaho | 1908
This is an action, brought in support of an adverse claim, to quiet plaintiff’s title to two certain mining claims, located and known as the “Jesse James” and "“Little Giant,” situated on Bismark Mountain, in Yankee
It appears that, during the years 1900, 1901, and 1902, the Bismark Company expended nearly $30,000 in improving and developing the said Little Giant and Jesse James claims; most of the work being done on" the latter. It ran over 1,400 feet of tunnels, and erected dwellings and buildings of various kinds on said premises; after said development work was stopped, it appears that the Bismark company performed the annual assessment on each of said claims up to the time of the commencement of this suit. It appears from the record that mineral-bearing rock was discovered in place on said claims, and that said claims were properly staked, as required by law, and that the ground included within their boundaries was an unappropriated part of the public domain at the date of their location. During the trial, among other evidence was introduced the original location notices of said claims, also amended location notice thereof. "When the appellant had finished putting in its evidence and rested, the defendant made a motion to strike out the original and all amended certificates of location of the Jesse James and Little Giant mining claims, based on a number of different grounds, the main one being that said notices or certificates of location did not contain any reference to any natural object or permanent monument, so as to render the situation and location of said claims reasonably certain from the letter of the notice itself, as required by the provisions of sec. 3102, Rev. Stat. Idaho, 1887, and sec. 2324, Rev. Stat. U. S. (U. S. Comp. Stats. 1901, p. 1426). Said location notices are as follows:
“Notice is hereby given that we, the undersigned citizens of the United States, conforming to mining laws thereof and the state of Idaho and the local rules, regulations, and customs, have this day located and do claim 1,500 linear feet in length by 600 feet in width, the same being 300 feet on each side of location stake together with all dips, spurs and angles and all other veins or lodes, the top or apex of which lies within said boundaries; this claim shall be known as the ‘Jesse James Quartz Mining Claim’ and is situated on Bismark*522 Mountain, Yankee Fork mining district, county of Custer, state of Idaho, and is bounded and described as follows: Commencing at this stake and notice and running S. E. 300 feet to S. E. side line, thence N. E. 600 feet to N. E. corner stake, thence N. W. 600 feet to N. W. corner stake, thence S. W. 600 feet to N. W. side-line stake, thence S. W. 900 feet to S. W. corner stake, thence S. E. 600 feet to S. E. comer stake, thence N. E. 900 feet to place of beginning. Located this 1st day of January, 1898.
“E. L. AYERS,
“LOUIS ROY,
“Locators.”
“Notice is hereby given that I, the undersigned, having complied with the requirements of chapter 6, tit. 32, secs. 2318-2352, Rev. Stat. U. S. (U. S. Comp. Stats. 1901, pp. 1423-1441), and of the laws of Idaho state, relating to the location of mining claims and all local customs, laws, and regulations, have located and do claim 1,500 linear feet along this lode or vein of quartz, by three hundred (300) feet in width on each side of the middle of the lode or vein, making 600 feet in width. The claim so located is hereby named the Little Giant Quartz Claim and is situated in the Yankee Fork mining district, Custer county, Idaho state, and is described as follows: Commencing at this stake and notice, which is situated about center of claim and running N. E. 750 ft. to center and stake, thence 300 ft. N. W. to N. W. corner stake, thence 1,500 ft. S. "W. to S. W. corner stake, thence S. E. 600 ft. to S. E. corner stake, thence N. E. 1,500 ft. to N. E. corner stake, thence N. W. 300 ft. to place of beginning, situated on Bismark Mountain.
“E. L. AYERS, Locator.
“Located this 16th day of April, 1898.”
It will be observed from the location certificate of the Jesse James that the locators claimed 1,500 feet in length by 600 feet in width. It is also stated in said notice that said claim shall be known as the “Jesse James Quartz Mining Claim,” and is situated on Bismark Mountain, Yankee Fork mining district, Custer county, state of Idaho, and “is bounded and described as follows.” Here follows an aecu-
"While there has been some diversity of opinion in some of the states as to the definiteness and certainty required by the provisions of said section, the more recent decisions are more liberal in the construction of said provisions; and we think the correct rule is stated in Farmington Gold Mining Co. v. Rhymney Gold & Copper Co., 20 Utah, 363, 77 Am. St. Rep. 913, 58 Pac. 832, where it is said: “If by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient.” That case was cited with approval by this court in Morrison v. Regan, 8 Ida. 291, 67 Pac. 955. Whether the notice and description of the claim were sufficient to apprise other prospectors of its precise
Thus it is clearly shown that said Bismark Mountain was a small mountain, and well known to prospectors in the Yankee Fork mining district. It is well recognized that the ties of mining claims to some natural object or permanent monument are not and were not intended to be as accurate and cor
Said provisions of the statute were designed to secure a description, so that the mining claim could be readily ascertained. (See Hammer v. Garfield Mining Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. ed. 964; Bennett v. Harkrader, 158 U. S. 441, 15 Sup. Ct. 863, 39 L. ed. 1046.) The natural objects or permanent monuments referred to are not required to be on the ground located, although they may be; and the natural object may be any fixed natural object, and such permanent monument may consist of a prominent post or stake firmly planted in the ground, or of a shaft sunk in the ground. (North Noonday Min. Co. v. Orient Min. Co. (C. C.), 1 Fed. 533; Jackson v. Dines, 13 Colo. 90, 21 Pac. 918.) And it was held in Hansen v. Fletcher, 10 Utah, 271, 37 Pac. 480, that a prospect hole, rock monument, or stakes are, within the meaning of the law permanent monuments. It is the well-settled doctrine of all of the later decisions that location notices and records should receive a liberal construction, to the end of upholding a location made in good faith. In Londonderry M.
It appears from the evidence that said Jesse James and Little Giant mining claims were located very prominently on said Bismark Mountain, the former on the very top, and that the appellant company had expended large sums of money during the years 1900, 1901, and 1902 in developing them, and had erected dwelling-houses, bunkhouses, and other buildings in connection therewith; that the most of the work had been done on the Jesse James claim. Something over 1,400 feet of tunnel had been run. With that condition existing W. J. Oster, who located said Matilda, North Sunbeam, and Squaw Hitch mining claims on April 27, 1906, testified that he had been in the mining business since 1883, and that he had been on Bismark Mountain since 1903, and was acquainted with those premises. It does not seem possible that a man could have been on that little mountain for three years without knowing of said Jesse James and Little Giant mining claims, the former of which is located on the very top of said mountain, and on which claims nearly $30,000 had been expended in developing them. He testified as follows: “I knew at time [1903] of the existence of two stakes that were reputed to be the easterly end stakes of the Jesse James; one of them was at the southwest corner of the Exchequer as staked.” Those facts appearing, every reasonable presumption that can be drawn therefrom should be in favor of his knowing of said locations; and his grantees should not be permitted to take advantage of any minor defects in the location
Tbe next question raised is in regard to the court striking out tbe amended certificates of location. Tbe evidence shows that, after tbe respondent’s grantors bad attempted to locate tbe ground in question and bad applied for patent therefor, and prior to tbe time of tbe commencement of this action, tbe appellant corporation made and recorded amended certificates of location on said Jesse James and Little Giant claims, in which amended certificates descriptions were made from plats of actual surveys- of said claims, and said claims were tied to United States mineral monument No. 1, by course, distance, and magnetic variation. Said amended certificates were received in evidence with tbe original certificates, and were later
This court had under consideration in Morrison v. Regan, 8 Ida. 291, 67 Pac. 955, the provisions of sec. 5 of an act entitled “An act to define the manner of locating lodes, quartz and placer claims.” (Sess. Laws, 1899, p. 238.) That section provides, in effect, that if at any time the locator of a mining claim, or his assigns, shall apprehend that his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing, etc., he may file an additional certificate, subject to the conditions of said act, provided that such amended location does not interfere with the existing rights of others at such time as the amendment is made. It was held in that case that such amended location notice related back to the date of the original location. Since we have held that the court erred in striking out the location notice, it follows that it erred in striking out said amended certificates of location. Of course, if said amended certificates of amended location took in ground not formerly covered by the original notice and location, which ground had been located prior to the filing of such amended location notices, such ground could not be included in such amended location certificates. In the case of McEvoy v. Hyman (C. C.), 25 Fed. 596, the court had under consideration an amended location certificate, and held that the first record of a mining claim is usually, if not always, imperfect, and that it is the policy of the law to give the locator an opportunity to correct his record when defects are found therein; and, when it is so corrected, the amendment takes effect, with the original certificate of location, as of the date of such original certificate. It would appear from that decision that the location certificate therein considered stated that said mining claim was situated on “Aspen Mountain.” This was held a sufficient reference. The original location certificates involved in this suit are similar in that respect; for they state that said Jesse James and Little Giant claims are situated on “Bismark Mountain.” In the decision of that case, Judge Hallett said: ‘ ‘Under the law as it is at present,
Said motion for nonsuit was also based on the ground that the plaintiff’s evidence did not show that the premises located as the Jesse James and Little Giant was unappropriated public domain of the United States at the time the grantors of the •appellant made said locations. It appears that both of said grantors were dead, and could not be produced as witnesses on the trial. One of the locators swore to and signed the
Under the provisions ’of sec. 2332, Rev. Stat. U. S. (U. S. Comp. Stats. 1901, p. 1433), it is provided that, where locators or their grantors have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims, in the state or territory where the same may exist, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto, in the absence of any adverse claim. In considering the provisions of that section the supreme court of Colorado, in Cleary v. Skiffich, 28 Colo. 362, 89 Am. St. Rep. 207, 65 Pac. 59, held that said statute was not available in an action brought in support of an adverse claim, except that it might be in such action that proof of such possession would be sufficient upon which to presume that all steps necessary to effect a location of the claim adversed had been taken; and it has been held that, where possession of a mining claim was
It is next contended that the appellant has failed to show that it, being a foreign corporation, had complied with the laws of this state so as to entitle it to do business in the state. It is alleged in the complaint that the appellant corporation was duly organized under the laws of the state of Washington, and, as such corporation, had complied with the requirements of the constitution and laws of this state relative to foreign corporations doing business in the state. This allegation was denied, on information and belief, by the answer. In Valley Lumber & Mfg. Co. v. Driessel, 13 Ida. 662, 93 Pac. 765, this court held that the fact as to whether a foreign corporation had complied with the constitution and law in that regard was a matter of record, and a denial thereof on information and belief was not a sufficient denial. There being no sufficient denial of the allegation as to whether the appellant corporation had complied with the constitution and law so as to enable it to transact business in this state, there was no issue raised by such denial.
It appears that the appellant corporation procured whatever title it had to the mining claims in question in 1900, and prior to the amendment of sec. 2653, Rev. Stat., by the act of 1903 (Laws 1903, p. 49), there was nothing in the constitution of this state or the statutes rendering a conveyance of real estate to a noncomplying corporation void. Therefore the conveyance of said mining claims to the appellant corpora
It is next contended that tbe court erred in not allowing tbe witness Winwood to state tbe conversation which be bad with Kenenbly, one of tbe locators of tbe Exchequer mine, as to the Little Giant stakes. Kenenbly thereafter conveyed said Exchequer claim to the respondent corporation, and it is contended that, be being a grantor of tbe respondent, his declaration as to the stakes of an adjoining claim, to wit, the Little Giant, was admissible in evidence in tbis suit. That would depend altogether upon tbe fact whether, those declarations were made prior to tbe time that Kenenbly conveyed said Exchequer claim to tbe respondent corporation. If such conversation was bad before Kenenbly conveyed said claim to tbe respondent, tbe conversation should have been admitted in evidence; otherwise, not.
There are other errors assigned, but none that will arise on a retrial of tbis case, and it will therefore not be necessary for us to pass upon them. It is suggested by counsel for appellant that, on tbe record as presented, in case of a reversal of tbe judgment, tbis court would be fully justified in directing judgment to be entered for tbe appellant. There are several cogent reasons why tbis cannot be done. While we bold that tbe plaintiff made a prima fade case and was improperly nonsuited, tbe respondent bad not put in any evidence on its behalf, which it would have bad a right to do bad tbe court not granted a nonsuit.