101 P. 1078 | Mont. | 1909
delivered the opinion of the court.
In July, 1906, John Radmilovich made application in the United States land office at Helena, Montana, for a patent to the
The only objection made to the introduction in evidence of the certified copy of the articles of incorporation of the Butte Northern Copper Company was that the complaint in each case does not state facts sufficient to constitute a cause of action. This objection does not raise the question considered by this court in Milwaukee Gold Extraction Co. v. Gordon, 37 Mont. 209, 95 Pac. 995; and upon appeal this court will only consider the ground of the objection urged in the court below. (8 Ency. of Pl. & Pr. 163.)
It is contended that neither complaint states a cause of action because the declaratory statements are insufficient. It is said that they do not show that the development work was done within sixty days from the date of posting the location notices. The statutory provisions in force at the time are found in section 3610, and sections 3611 and 3612, Political Code, 1895, as amended by an Act of the Seventh Legislative Assembly approved March 15, 1901 (Laws 1901, p. 140). In the original declaratory statement of the Minnesota claim the development work is described as follows: “At the point of discovery a cut, the dimensions of which are 5 by 11 feet, and 5 feet in depth,
While the evidence is somewhat meager upon the questions of the mineral values in either claim, as to whether the claims were relocations or original locations, and as to whether the ground was in fact open to location at the time plaintiffs made their locations, the trial court found in their favor upon each of these questions, and we are not prepared to say that such findings are not justified by the record.
The trial court found that defendant was prior in time in posting his notice of location, but held the plaintiffs’ locations prior and superior, because (a) defendant’s location notice was not posted at the point of discovery, and (b) his notice described a north and south vein, while' the vein exposure was> of an east and west vein. The evidence is sufficient to sustain the finding of the court that the defendant did not post his location notice at the place of discovery, as required by section 3610 above. The evidence tends very strongly to show that he made discovery on March 15 or earlier; that he discovered mineral-bearing rock in place near the extreme westerly boundary of his claim and several hundred feet from the place where he posted his notice of location; that he also found mineral-bearing rock in place exposed in an excavation on the Sea Lion claim, some fifty or sixty feet from the place where he posted his location notice. We agree with counsel for appellant that the locator is not required to sink his discovery shaft at the point of discovery (O’Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302); but that question is not the one involved here. The question here presented is, Must he post his notice of location at the point of discovery? The statute provides that he shall do so. The successive steps provided for are (1) discovery, (2) posting notice of location, (3) marking boundaries, (4) sinking discovery shaft, etc. In his article on Mines and Minerals, 27 Cyc., at page 564, in speaking of the place where the notice of location must .be posted, Judge Clayberg says: ‘ ‘ The place of posting the notice is generally designated by statute or local rule,
The judgment in each case, as originally rendered, did not make any provision for costs. After the appeal had been perfected in each case, the trial court, upon motion of the plaintiffs, amended the judgment by adding a provision that plaintiffs recover their costs and fixing the amount of the costs recoverable. Section 7173, Revised Codes, provides: “The clerk must include in the judgment entered up by him, any interest on the verdict or decision of the court, from the time it was rendered or made, and the costs, if the same have been taxed or ascertained; and he must, within two days after the same are taxed or ascertained, if not included in the judgment, insert the same in a blank, left in the judgment for that purpose, and must make a similar insertion of the costs in the copies and docket
The order denying defendant a new trial in each case is affirmed. The order in each case amending the judgment is reversed. The causes are remanded to the district court, with directions to strike out the amendment in each judgment awarding costs, and, as so amended, the judgments will be affirmed. Each party will pay his own costs of these appeals.