89 P. 302 | Mont. | 1907
Lead Opinion
delivered the opinion of the court.
In 1900 Samuel Barker, Jr., made application to the United States land office at Helena for a patent to the Louise lode mining claim. Within the sixty-day period of publication, the Butte Consolidated Mining Company filed its adverse, claiming a portion of the ground embraced within the Louise claim by virtue of its location of the Annex lode mining claim. The adverse claim was allowed, and this action was brought within thirty days thereafter, The complaint is in the' usual form of an action to quiet title.
The answer puts in issue the allegations touching the validity of the Annex location and the invalidity of the Louise location, and by way of affirmative defense sets forth the facts touching the location of the Louise claim, and prays that the defendant’s title be quieted to the ground in controversy. The affirmative allegations are put in issue .by reply.
Upon the trial the plaintiff offered in evidence the declaratory statement of the- Annex claim, to which objection was made, but the objection was overruled. Defendant offered testimony in his own behalf, which tended to show that he made discovery of mineral-bearing rock in place at the end of a crosscut, one hundred and two feet in length, which crosscut extended from a shaft on the Bully Boy claim into the territory embraced within the boundaries of the Louise claim. This testimony further tended to show the posting of a notice of location on the surface immediately over the point of discovery, the marking of the boundaries of the Louise claim, and the 'filing for record
1. As we view this matter, the principal question in controversy is presented by the ruling of the trial court in excluding from evidence the declaratory statement of the Louise claim, and we content ourselves with a consideration of only one of the grounds of objection urged by counsel for plaintiff to the admission of that declaratory statement, namely, that, when offered in evidence, the testimony of defendant himself showed that the only development work on the Louise claim was a crosscut one hundred and two feet in length, at a depth of one hundred and thirty-two feet from the surface extending northerly from No. 4 shaft, which is located on a patented mining claim, the Bully Boy claim, survey No. 1184.
From all that appears from defendant’s testimony, he did not do or cause to be done any development work whatever. He was the locator of the Louise claim, but he merely states that he made discovery in the crosscut which is run from the one hundred and thrity-two foot level of shaft No. 4. From all that appears, that crosscut may have been there for years and made by an entire stranger; but, aside from this objection, which was not specifically urged, we think the ground stated above sufficient justification for the court’s ruling.
The requirements that a shaft be sunk upon the claim ten feet deep, or deeper if necessary to disclose a well-defined crevice or valuable deposit, or the doing of the work which is declared to be the equivalent, has a double purpose in view: “(1) To demonstrate to a reasonable degree of certainty that the deposit sought to be located as a lode is in fact a vein of quartz or other rock in place; (2) to compel the discoverer to manifest his intention to claim the ground in good faith under the mining laws.” (Lindley on Mines, sec. 344.) That this development work must be done upon the claim admits of no doubt. Section 3611 so declares, and subdivision 6 of section 3612 clearly contemplates the same thing; and such work would not serve either purpose if done off of the particular claim.
Does the locator, then, manifest his intention to claim the ground within the defined boundaries of his claim, by making a crosscut which intersects or cuts the vein one hundred and thirty-two feet below the surface, when the only means of reaching such crosscut is down a shaft which is located upon another claim? If such is the fact, it must be conceded, then, that the shaft is not required to be upon an adjoining claim, but may be anywhere, so long as the locator is able to extend his crosscut to his own claim. In other words, there need not be any visible evidence of any development work on the claim whatever, and the locator, by posting his notice of location and marking the boundaries of this claim, may hold the same against all the world, if by some secret means of ingress beneath the surface he has actually performed an amount of work the equivalent of a discovery shaft. That such work does not meet the requirements of the statute seems altogether plain. It is by means of the discovery shaft or the crosscut that the locator manifests his intention. If he chooses to make such manifestation by means of a discovery shaft, he must do the work on the claim. The shaft must be sunk upon the claim, for so the statute declares; and this is done in order that anyone interested
In the present case, so far as the claim initiated by Barker is concerned, there were not any indications upon the surface of that claim that he had done anything beyond posting a notice of location and marking the boundaries of the claim, and it does not aid him to say that his declaratory statement describes the crosscut as starting from a shaft, the location of which may be gained from the courses and distances given. Any inspection of such crosscut involves a trespass upon a patented claim, the property of a third person. While we have not found any case directly in point, the charge given by Judge Hallet, in Zollars v. Evans (C. C.), 5 Fed. 172, 2 McCrary, 39, is instructive upon this subject.
Holding, as we do, that the crosscut from No. 4 shaft, even if made by Barker, does not meet the requirements of our statute for development work done on the Louise claim, it follows that the location of that claim was never completed, and whatever rights Barker initiated were lost, .and therefore, not having a valid location of the Louise claim, his declaratory statement was irrelevant and immaterial, and that and his other evidence properly excluded.
2. Complaint is made that the court erred in admitting in evidence the original declaratory statement of the Annex claim, and also the amended declaratory statement of the Annex-Plumber claim, and with it the declaratory statement of the Plumber claim. The Plumber claim is identical with the Annex,
We may assume that the description of the discovery shaft contained in the Annex declaratory statement is so indefinite as to render that instrument defective, and, further, that the Plumber declaratory statement is of no effect whatever. Still the amended declaratory statement of the Annex-Plumber claim is sufficient, and, despite the fact that it assumes to fulfill the office of an amendment to the Plumber, it is equally valid as an amended declaratory statement of the Annex claim, and, in the absence of any intervening rights, relates back to the date of discovery of the Annex, March 4, 1900; that is to say, it relates back to a right accruing to the plaintiff and its predecessor in interest, the locator of the Annex, by virtue of the prerequisite acts of discovery, prior possession, posting the notice of location, marking the boundaries, doing the necessary development work, and the attempted compliance with the law relating to filing for record of a declaratory statement. (Morrison v. Regan, 8 Idaho, 291, 67 Pac. 955.)
The declaratory statement of the Annex, even though defective, was admissible in evidence in connection with the amended declaratory statement, first, as showing an attempt on the
Neither do' we think it of any consequence that the name given for the lode claim in the amended declaratory statement is “Annex-Plumber.” The claim is identical with the Annex. It is in fact the same claim. The amended declaratory statement refers to the Annex location, and declares on its face that it is intended as an amended declaratory statement of the Annex claim. The ground and not the name of the claim, is the factor in these controversies. In 1 Lindley on Mines, section 398, it is said: “Where the second, or amended, notice contains names other than those set forth in the original, in an action against strangers this fact cannot be taken advantage of. It may be treated as an original notice as to the persons whose names do not appear on the first, and as a supplemental or amended notice as to those whose names appear on both.
We think there is a clear distinction between this case and the case of Healey v. Rupp (Colo.), 86 Pac. 1015. In the Rupp Case there was not any attempt to show a discovery-under the original declaratory statement of the Canestota claim, but the plaintiff relied entirely upon a discovery made after the adverse proceedings had been instituted, while in the present case evidence was offered showing the discovery made on the Annex on March 4, 1900, the posting of the notice, marking of the boundaries, the doing of sufficient development work, and in fact apparently everything necessary to make a complete location of the Annex was done, except only that the declaratory statement failed to sufficiently describe the discoverv shaft with the openings from it.
3. At the conclusion of the testimony, and after the court had stricken out all evidence offered on behalf of the defendant, on motion of counsel for plaintiff the jury was discharged, and the court made findings of fact and conclusions of law in favor of the plaintiff. The action of the court in discharging the jury without requiring a verdict to be returned is assigned as error by the defendant; but on the authority of Mares v. Dillon, 30 Mont. 117, 75 Pac. 963, Kirby v. Higgins,, 33 Mont. 518, 85 Pac. 275, and Thornton v. Kaufman, 35 Mont. 181, 88 Pac. 796,
Affirmed.
Rehearing granted April 20, 1907, on the question whether discovery can be made on the public domain, where access thereto can only be had through underground openings on patented ground.
Rehearing
On Rehearing.
(Submitted May 25, 1907. Decided June 8, 1907.)
delivered the opinion'of the court.
We adhere to the decision heretofore reached in this ease (ante, p. 327, 89 Pac. 302). Our decision is based upon a con,sid
The cases cited by appellant (Enterprise Min. Co. v. Rico-Aspen Con. Min. Co., 167 U. S. 108, 17 Sup. Ct. 762, 42 L. Ed. 96, and Campbell v. Ellet, 167 U. S. 116, 17 Sup. Ct. 765, 42 L. Ed. 101) have to do with locations made pursaunt to section 2323 of the United States Revised Statutes, which are governed by different principles from those applicable to other locations, such as the attempted location of the Louise claim. That different principles are applicable to these different classes of claims, we think is made manifest in Campbell v. Ellet, above, wherein it is decided directly, for instance, that it is not necessary to mark the point of discovery or the boundaries of the claim on the surface, in case of a location made under section 2323, above, while section 2324, which applies to all other lode mining claims, particularly requires that “the location must be distinctly marked on the ground, so that its boundaries can be readily traced.”
The question which we have decided was not one of the questions determined in Brewster v. Shoemaker, 28 Colo. 176, 89 Am. St. Rep. 188, 63 Pac. 309, and what is said in the opinion in that case upon this subject appears to be obiter dictum; however, from the language employed it is possible that, under a state of facts similar to that involved in this ease and under a statute similar to ours, the Colorado court might hold contrary to the views we have expressed. But, if so, we can only