23 Mont. 95 | Mont. | 1899
delivered the opinion of the court.
In this action the plaintiffs seek to recover possession from defendants of a portion of the surface ground of the Blacktail lode claim, situate in Missoula (now Flathead) county. The complaint alleges ownership and right of possession in plaint
The defendants, after denying the allegations in the complaint, set up title, right of possession, and possession, in themselves, under a location called the “Bell Lode Claim,” alleged to have been made by them prior to that of plaintiffs’. They allege the facts of their discovery, location, and a compliance with the law necessary to a valid claim. They further allege that the boundaries of the Bell lode claim conflict with those of the Blacktail lode claim, particularly describing the conflicting area by metes and bounds, and claim that they are lawfully in possession of this area under their prior location. The complaint does not describe this area, but in the trial court proof was introduced by the plaintiffs identifying it, and the case was treated by both parties as if the complaint contained a proper description. No question is made here on this point. We shall therefore assume that the complaint is sufficient in this regard, and so treat it.
The trial in the court below resulted in a verdict and judgment for the plaintiffs. The case comes here, on appeal from the judgment and an order overruling defendants’ motion for a new trial.
The plaintiffs first produced evidence of what plaintiff Bramlett, who made the location of the Blacktail claim, did at the time of the location, in the way of making a discovery, post: ing his notice, and marking the boundaries of the claim. His evidence was supplemented by that of A. L. Jaqueth, a mining engineer, who had made a survey of both claims a few days before the hearing. As an exhibit to his statement, there was introduced in evidence a plat or diagram made by
Thereupon, over the objection of the defendants, the court admitted in evidence a copy of the notice of location of the Blacktail claim, filed for record on August 1, 1892. The
The evidence of plaintiff Bramlett tended to show that he went upon the ground on July 12, 1892, and made a discovery at the point marked £ ‘Discovery Shaft’ ’ on the diagram, of quartz in place, containing free gold; that this was from 9 to 10 o’clock in the forenoon; that he proceeded at once to make the location by piling up a monument of stone at the point of discovery, and putting up a substantial copy of the recorded notice there; that he then staked both ways 750 feet; that he put up the northeast corner first, and then the others, going from this point around the claim, and back to the place of beginning; that at the northeast and northwest corners he cut off trees four or five feet from the ground, and squared the stumps; that at the other two corners he blazed standing
This witness became somewhat confused in giving the directions from each other of the boundary posts upon the claim, and the course he went from the place of beginning at the time he. made the location. In the notice it is stated that post
The defendants contend that the five posts put upon the claim by Bramlett do not mark the boundaries sufficiently. But, under the authorities already cited, this was for the jury, and not for the court, to say, after hearing the proof.
We cannot sustain the contention that the proof fails to show an ouster by defendants, or the area from which the plaintiffs were excluded. The area in conflict is clearly shown by the testimony of Jaqueth, aided by the plat. It is shown by designated metes and bounds. True, this area is not described in the complaint, but the contention is not that the pleading is not sufficient, but that the proof is not sufficient.
As to the ouster, the plaintiff’s evidence showed that defendant Flick in 1895 was actually at work on the lead upon which the Blacktail discovery was made, and within the conflicting area. He had a man by the name of Preston working at that point. He had previous to this time, in 1895, notified the plaintiffs not to do any other work upon the lead. The plaintiffs were then at work taking out ore at the point marked “Blacktail Tunnel” on the plat. He claimed that this was upon the Bell claim, and that it belonged to him. He remained there and continued the work. He had also been at work there some in 1894. Taking this proof in connection with the fact that the boundaries of the Bell claim cover a considerable portion of the Blacktail, it sufficiently establishes an ouster of the plaintiffs from that part of the claim. An
The defendants cite Dillon v. Bayliss, 11 Mont. 171, 27 Pac. 725, as supporting their contention. In that case evidence of the same character was offered by the defendant for the purpose of rebutting and overturning the presumption established in favor of plaintiff’s claim by the introduction of the notice of location, and the evidence in support of it. The objection made was that the notice was conclusive as to the-
This witness (Jaqueth) was further asked whether he found the boundaries of the Blacktail claim without assistance; whether the blazing upon the posts at the west end appeared to be old or new; whether the marks on the boundaries of the Bell claim appeared to be old or new; whether he could readily find the blazes on the trees along the end lines of the Bell claim, and whether they could be traced or observed from one to the other. Similar questions were put to other witnesses. The court sustained objections to them all on the ground that they called for the opinion of the witnesses. These rulings were clearly wrong. Witness Jaqueth had already been permitted to answer the first of these questions when upon the stand for the plaintiffs. It might have been excluded upon the ground that it was a repetition, but it was clearly competent as reflecting upon the condition of things found upon the ground at the time of the survey. There was a sharp conflict in the testimony as to whether some of the monuments had ever been put upon the Blacktail claim, — particularly as to the northeast and northwest corners. There was some evidence tending to show that these corners had not been put up at the date of the Blacktail location. There was the same controversy as to the situation of the posts upon the Bell claim, and whether they had been put there as early as claimed by defendants. There was also a controversy as to the existence of blazes on the trees along the boundaries of this claim. The evidence sought to be brought out was certainly mate
Defendants’ contention at the trial was that, Flick having^ made his discovery and posted his notice upon the ground on the 8th of July, their claim thereto was superior to that of plaintiffs, that this act on the part of Flick withdrew the ground which was claimed in his notice from exploration by others, and that, plaintiffs having made their location within the 20 days during which the ground- was not open to location, their location was void, as to the conflicting area, and they acquired no right thereto, notwithstanding defendants failed to make their record within the 20 days. The court, entertained a different view of the law, and proceeded upon the theory that, inasmuch as the plaintiffs made their location and recorded their declaration before the defendants did, they acquired a right to the conflicting area, to the exclusion of defendants. We quote the fourth paragraph of the charge, as-illustrating the view the court held, and the theory upon which the case was submitted to the jury:
*110 “You are instructed that if you find from the evidence that the defendants discovered the Bell lode or claim on the 8th day of July, 1892, before they had a valid or could have had a valid and subsisting right to said lode or claim, as against any person who had acquired an adverse right thereto, the defendants must have distinctly marked the location on the ground, so that its boundaries could be readily traced, and made and filed in the office of the county clerk and recorder in the county where such claim was situated an affidavit of the location thereof. If the defendants failed to do any one of these things, then, as against the plaintiffs, if the plaintiffs had made a valid location of the same, or any portion of the, same ground, by discovery and location and recording, between the said 8th day of July, 1892, and the 2d day of August, 1892, the plaintiffs’ right to the land in controversy would be valid, and a better right, and you will find for the plaintiffs. ’ ’
Under' the court’s view of the law, as stated here, the jury could not have found for the defendants, in any event, unless they found Bramlett’s location bad; for there is no controversy but that Bramlett finished whatever he did in the way of making his location on the 12th, or that he filed his statement for record on the twentieth day thereafter. And although the defendant Flick made his discovery and posted his notice on the 8th, still this gave him no rights at all, if he did not finish his location within the 20 days, and get his notice on record, no matter what were his intentions, or whether he was acting in good faith or not. The question presented is not without difficulty, but we think the result of the decisions of the courts upon similar controversies logically leads to the conclusion that, if Flick actually posted the notice in plain view upon the exposed lead, as claimed by him, on July 8th, and thereafter during the 20 days intended in good faith to secure his claim by completing his location, no failure on his part to make such a location and proper record within the 20 days would inure to the benefit of plaintiffs. In Doe v. Waterloo Mining Co., 70 Fed. 455 (a similar case, decided in
Wherever there are statutory provisions fixing the time within which,' after discovery, the prescribed work necessary to a valid location must be done in order to secure the claim, it is held that the discoverer has the full time provided in the statute to complete it. (Lindley, on Mines, § 339; Omar v. Sopar, 11 Col. 380, 18 Pac. 443; Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560; Marshall v. Harney Peak Tin Manufacturing Co., 1 S. D. 350, 47 N. W. 290; Sanders v. Noble, supra.) Under our statute now in force (Political Code 1895, §§ 3610 — 3612), at the time of discovery a notice must be posted at the point of discovery, and it is provided therein what this notice shall contain. The statutes of Colo rado and South Dakota contain similar provisions. In Sanders v. Noble, supra, following the authorities cited, this court held that, upon the posting of the notice at the discovery in compliance with the provisions of the statute, the prospector not only has the full 90 days in which to do the work necessary, but that in marking his boundaries after the work is done he may also swing his claim so as to make it cover the lead to the extent claimed, to the exclusion of others who have sought in the meantime to occupy ground within the possible limits of the claim. Our statute of 1887, under which the locations involved here were made, contained no provision requiring a notice to be posted, but it allowed 20 days in which to complete the location and make the neces sary record. (Compiled Statutes, Fifth Division, § 1477.)
Recurring now to the notice posted, the amount claimed is simply 1,500 feet along the lead; nothing being said as to the direction in which this was to be measured. In Erhardt v. Boaro, supra, a similar notice was considered by the supreme-court of the United States. In commenting upon it, Hr. Justice Field said: “The written notice posted on the stake-at the point of discovery * * * declares that they [the locators] claim fifteen hundred feet on the ‘lode, vein, or deposit. ’ It thus informed all persons subsequently seeking to-excavate and open the lode or vein that the locators claimed the whole extent along its course which the law permitted them to take. It is, indeed, indefinite, in not stating the-number of feet claimed on each side of the discovery point,, and must therefore be limited to an equal number on each side; that is to seven hundred and fifty feet on the course of the lode or vein in each direction from that point. To that-extent, as a notice of discovery and original location, it is sufficient. ’ ’ In posting the notice he did upon the lead, we are of the opinion that Flick thereby established a right for the-statutory period of 20 days to 1,500 feet along the lead, but that he was limited in this right to 150 feet on either side-of the point of discovery. The fact that in making the location thereafter he included within his boundaries ground not legitimately covered by his notice, if this were done in good faith, as the result of ignorance or inadvertence merely, would not invalidate his claim, in so far as it includes what was legitimately covered by the notice. In no event would any error or misprision on his part in endeavoring in good faith to com
The instructions of the court on this branch of the case, as illustrated by the paragraph quoted, were therefore erroneous and prejudicial to the defendants. They are therefore entitled to a new trial upon the lines herein indicated.
We are requested to pass upon the question as to whether the evidence is sufficient in any event to warrant a verdict for plaintiffs. As there must be a new trial, we decline to express any opinion on this point.
Many other questions have been urged upon the attention of the court, but we think enough has been said herein to guide the court below in trying the cause anew.
Let the judgment and order appealed from be reversed, and the cause be remanded, with directions to grant defendants a new trial.
Reversed and Remanded.