| Mont. | Jan 15, 1871
This was an action for the possession of a mining claim. Plaintiffs alleged that they were the owners and entitled to the possession of claim No. 5, in Barrette district, Missoula county, Montana; that in December, 1869, defendant entered upon said claim and wrongfully withheld it from plaintiffs; that the claim contained gold, and ask for possession of said claim, damages, and a restraining order until the termination of the suit.
Defendant answered and denied that plaintiffs were the owners or entitled to possession of said mining claim; admitted that he and one Halloran withheld said claim from plaintiffs; alleged ownership and possession of said claim since the 10th of December, 1869, and that it was unappropriated before that time ; denied that he was working the claim, insolvency, and ask judgment for costs.
Appellant asks for reversal of the case for the reasons that the verdict was against the law and the evidence, and for errors of the court below in giving and refusing instructions.
It appears by the evidence preserved in the statement, that one Barrette and Lowthier were the discoverers of Barrette district in Cedar Creek, Missoula county, Montana; that for some time before the discovery the plaintiffs had furnished said Barrette and Lowthier with money and provisions to prospect with, and had been working to get money to keep them prospecting; that previously to the discovery plaintiffs had an agreement and understanding with said Barrette and Lowthier, by which they were to locate claims for them when they made a discovery; that $200 or $300 was so furnished and was being used by said discoverers when they discovered Cedar Creek gold mine. Section 18 of the mining laws of Barrette district provides that no claim can be legally held unless the prior claimant has personally pre-empted the same, except three claims to be allowed the discoverers for their prospecting partners.
Barrette and Lowthier, as the discoverers, located said claim 5 for the plaintiffs with two others, and they claim the possessory right and title to the same under said section 18 of the mining laws of said district.
Defendant came into Cedar Creek shortly after the discovery, and finding said claim unoccupied located the same and attempted to have it recorded, but the recorder refused to record it, and referred defendant tó said section 18 of the laws to show him that plaintiffs had a right to hold it under the record as it then was.
• It is contended by appellant that plaintiffs cannot hold said claim under said mining law, because the evidence does not prove or show that plaintiffs were prospecting partners of the discoverers; that the agreement and understanding
We do not think this agreement or understanding between the plaintiffs and the discoverers of Cedar Creek gold mine should be subjected to or tested by the technical rules of the law of partnership. It is the spirit and policy of our mining common law, sometimes called, to enforce the rules and regulations of miners, and interpret their agreements made under such rules, according to the real intention of the miners, when they do not conflict with positive law or public policy. What kind of an agreement or understanding did the miners of Cedar Creek intend, and to whom did they refer in said section 18 of their mining laws? Manifestly, from the evidence, to the plaintiffs in this case. There is no dispute but that said Barrette and Lowthier were the discoverers, that plaintiffs furnished them money and provisions for some time before the discovery, to continue to prospect for gold; and that they were living on these provisions when they made the discovery. Shall the court, because said section 18 of the laws states that the discoverers may locate three claims for their prospecting partners, and because the evidence does not show such facts as would, under the rules of commercial law, constitute a partnership, say that the plaintiffs cannot hold their claims under said mining rule or law, so evidently passed for their express benefit ? We think not. Laying aside the general law of partnership, and inquiring what miners ordinarily mean by the term, “ prospecting partnership,” we are of opinion that the agreement or understanding, between the said discoverers of Cedar Creek gold mine and the plaintiffs below, was understood by the miners of Cedar Creek when they adopted said section 18 of their laws, to constitute a prospecting partnership,' and for that reason they designated the plaintiffs as the discoverers’ prospecting partners for whom they might locate and hol'd three claims.
We do not think said mining rule or law is against public policy, as contended by appellant. On the contrary, the agreement by which plaintiffs furnished to said discoverers
The error assigned by the court’s refusing to give the instruction, that if the jury did not find from the evidence that plaintiffs and said discoverers were prospecting partners, they would find for the defendant, is not sufficient to reverse the judgment. While th¿ court might correctly have given this instruction, it might have, if given, misled the jury, by causing them to test the said agreement in this case by the law of commercial partnership. •
Judgment and order of the court below affirmed.
Judgment affirmed.