15 Mont. 403 | Mont. | 1895
— It is quite true that there was some apparently rather substantial testimony,, introduced on the part of the defendants, tending to show that, when the application was made for the placer patent, the vein of the Augusta lode claim was known to exist. They introduced evidence showing that on the 16th of April, 1875, John Noyes and David Upton, who were two of the placer applicants, had located the alleged vein as the Eldorado quartz lode mining claim. They also showed that the said locators of the Eldorado claim sold the same to one Adam Earrady, the consideration named in the deed being five hundred dollars. This was long before the placer application. It was also shown that said Earrady worked said claim as a quartz mine, and took out some ore therefrom. It also appeared in evidence that Ered Anderson and others, between 1878 and 1880, did some quartz mining upon the same ground, and took out ore therefrom, which was worked. As to the value of the ore which these people took out the testimony is not quite clear. It was also attempted to be shown that the Anderson people relocated this same ground
Recurring first to the testimony of Adam Farrady, the grantee of Noyes and Upton in the Eldorado claim, he testified that he did some work upon the claim, and took out some ore, but that he gave it up and abandoned it because it did not pay him to work it, and there appeared to be nothing in it to warrant him in incurring any further expenditures on his part in developing the said claim as a quartz lode mine.
There was testimony of several other witnesses that prior to the application for the placer patent they had been over the ground many times where the vein was alleged to exist, and that they did not know of any vein on 'that ground which would justify working as a quartz mine.
The important testimony, however, on behalf of plaintiff, was that of David N. Upton. He was one of the applicants for the placer patent, and he was also one of the locators of the Eldorado quartz lode mining claim. Mr. Upton said: “We never did any work on the claim [meaning the Eldorado quartz
Witness Upton, although he could not successfully deny the making of the deed, contended throughout his whole examination that the “quartz proposition,” as he calls it, was not worth any thing, and for that reason he and his partners gave it up. He says further: “ There was no quartz lead known to exist in this placer claim prior to our application in 1880, that I know of, except this one that we located.” This witness testified that the ground was more valuable for placer than it was for quartz. As to the work which Anderson and his partners did on the claim, the witness Upton testified that he was living right by the ground for many years; he says: “Anderson and that outfit did not take out a pound of ore, to my knowledge, during 1878 and 1879; I was working right in that vicinity, on the same lot where I am now, since 1866. I passed back and forth on this ground every day while we were working the placers. As to the Eldorado claim, the reason we did not represent it was that we considered it valueless for a quartz claim. We never did any work on it to my knowledge.”
There were the'following questions and answers between this witness and the court:
“Q,. Let me ask you one question, Mr. Upton. At the time you made this location of the so-called Eldorado, and up till 1888, was this vein, or supposed vein, upon which you made the location, at any time, in your judgment as a miner, of sufficient value to justify exploitation or development? A. No, sir; it was not.
“Q,. I understand you to say that was a reason why you did not hold it ? A. Yes, sir; there was no indication of a*409 quartz lead on the ground that I know of, any thing more than this place in the ditch.
“ Q,. You thought that what you found there was not sufficient to justify development and exploitation as a quartz claim? A. Yes, sir.”
It does not appear to be necessary to quote the evidence further. Between the defendants’ and the plaintiff’s testimony there was a conflict, as above detailed, upon which conflict the court found in favor of the plaintiff. The question of law, however, is whether the testimony of plaintiff did in fact raise a substantial conflict, that is to say, whether the evidence of plaintiff was, not simply that a vein did not exist, but whether plaintiff showed that there did not exist a vein of quartz in legal contemplation, that is, such a vein as would be excluded from the placer patent.
The question of “a vein known to exist at the time of an application for a patent” for the ground, under placer and townsite laws, has engaged the attention of the United States supreme court many times within the last few years, and in one case resulted in an earnest dissension in that distinguished tribunal. (Iron Silver Co. v. Mike etc. Co., 143 U. S. 394.) But in that case the contention within the court seems to us to have been more upon the question of facts in that particular case, than upon a view of the law. We therefore feel that, as to the law, we may, with propriety, quote from both the prevailing and dissenting opinions in the case. As to what a vein is, we undertook, in the case of Shreve v. Copper Bell Min. Co., 11 Mont. 309, to state what we believed was the opinion of the United States supreme court upon that subject. We said, quoting from the syllabus of that case, which states the conclusion correctly, as follows: “It is not essential to the validity of the location of a mining claim that the discoverer should have found, prior to his location thereof, that the lode contained mineral deposits of sufficient value to justify work to extract them; but the spirit of the statutes is satisfied by the discovery of mineral deposits of such value as to at least justify the exploration of the lode in expectation of finding ore sufficiently valuable to work. (Davis v. Wiebold, 7 Mont. 107, reviewed and distinguished.)”
We quote as follows from the case of United States v. Iron Silver Min. Co., 128 U. S. 683: “It appears very clearly from the evidence that no lodes or veins were discovered by the excavations of Sawyer in his prospecting work, and that his lode locations were made upon an erroneous opinion, and not upon knowledge, that lodes bearing metal were disclosed by them. It is not enough that there may have been some indications, by outcroppings on the surface, of the existence of lodes or veins of rock in place bearing gold or silver or other metal, to justify their designation as ‘known5 veins or lodes. To meet that designation the veins or lodes must be clearly ascertained, and be of such extent as to render the land more valuable on that account, and justify their exploitation. Although pits and shafts had been sunk in various places, and, what are termed in mining, crosscuts had been run, only loose gold and small nuggets had been found, mingled with earth, sand, and gravel. Lodes and veins of quartz or other rock in place bearing gold or silver or other metal were not disclosed when the application for the patents was made. The subsequent discovery of lodes upon the ground, and their successful working, does not affect the good faith of the application. That must be determined by what was known to exist at the time. It is not, therefore, a fault to be charged upon Sawyer that he abandoned his original lode locations after he had discovered that they were worthless, in order to make locations of placer claims."
In Iron Silver Min. Co. v. Campbell, 135 U. S. 287, the court, speaking of a placer patent, said: “There is excepted from that grant any lode existing and known at the time application was made for his patent. Whether such a lode did exist, and whether it was known to him, is a question which he has a right to have tried by a court of justice, and from which he cannot be excluded by the subsequent action of the officers of the land department. .... But, in the present case, two facts requiring judgment, discretion, knowledge of the law,
As to the case of Davis v. Weibold, 139 U. S. 507, we very fully expressed our views in Shreve v. Copper Bell Min. Co., 11 Mont. 309, cited, and need not now reiterate them.
The Iron Silver Co. v. Mike etc. Co., 143 U. S. 394, came into the United States supreme court later (February 29,1892), and, for the reason which we have suggested above, we feel at liberty to quote from both opinions in that case. We extract the following from the majority opinion: “The second matter is this: Was there a known vein at the time of the application for a patent, within the meaning of section 2333? It was not then a located vein or lode, and the case was evidently tried by the plaintiff upon the theory that unless it was a located vein it was not a known vein, but that, as we have seen, is not a correct interpretation of the statute. It is enough that it be known, and in this respect, to come within the intent of the statute, it must either have been known to the applicant for the placer patent, or known to the community generally, or else disclosed by workings and obvious to any one making a reasonable and fair inspection of the premises for the purpose of obtaining title from the government.Another question is, whether this was suc.h a vein-bearing gold, silver, cinnabar, lead, or other valuable deposit as that a discoverer could
We take the following language from the dissenting opinion:
The case of Dower v. Richards, 151 U. S. 658, was a controversy between a townsite patent and a placer patent. In that case the court said: “There can be no doubt that the decision of the supreme court of the state in this respect was correct. It is established by former decisions of this court, that, under the acts of Congress which govern this case in order to except mines or mineral lands from the
We call attention to the facts in that case to exemplify how far the United States supreme court has gone in requiring strict and satisfactory proof that the vein was known to exist at the time that its competing patent was issued.
Applying these principles to the facts in the case at bar, we find positive testimony on the part of plaintiff that the vein which the defendant Hennessy located in 1888, although conceded to be known as a vein prior to the placer application, was not, prior to that application, known to be such a vein as the decisions hold to be exempt from the placer grant. There was positive testimony before the district court that the vein of the Augusta lode mining claim, at the time of the application for the placer patent, was not one which was known to contain minerals of such extent and value as to justify expenditures for the purpose of extracting them. (See the doctrine as stated by us in Shreve v. Copper Bell Min. Co., supra, and affirmed in Dower v. Richards, supra.)
We are, therefore, of opinion that the district court must be sustained in its holding that there was not, at the time of the application for the placer patent, such a vein known to exist as would exempt the same from a placer grant.
Of course it is apparent that the views which we have herein expressed are not out of accord with the decision of the United States supreme court in Barden v. Northern Pac. R. R. Co., 154 U. S. 288, for in that case the exemption of mineral lands was of such lands, whether known or unknown.
There was a substantial conflict of testimony, as we have shown, as to whether the Augusta vein was legally known to
Another error assigned by the appellants is that the district court allowed plaintiff to introduce testimony that at the time of the placer application the ground was more valuable as a placer mine than as a quartz lode mine. We are of opinion that such testimony was not in the nature of conclusive evidence, but that it was competent as tending in some degree, slight perhaps, to prove that the vein was not such a one as to exempt it from the placer grant. (See the cases heretofore cited in this opinion.)
Another error assigned by the appellants is the exclusion by the court of the location notice of the Bettina lode claim. This was a location attempted to be made by Anderson and others, on February 23,1878, upon the vein which defendant Hennessy af-terwards located as the Augusta. It is conceded that the location notice of the Bettina was defective in that it was not verified. (O’Donnell v. Glenn, 8 Mont. 248; 9 Mont. 452; Metcalf v. Prescott, 10 Mont. 283.) But appellants claim that the location notice was competent testimony as tending to prove that a vein wTas known to exist. Whether it was competent or not does not seem to be material at this time, for the reason that defendants were allowed to prove by the testimony of the attempted locators their knowledge of the existence of the vein. They testified very fully in this respect, and they were permitted to say all that they could have said if their invalid location notice had been permitted to be introduced in testimony. Therefore, the defendants could have suffered no injury in this respect.
We are of opinion that none of the errors assigned can be sustained, and the judgment is therefore affirmed.
Affirmed.