19 Mont. 341 | Mont. | 1897
This case is the result of a conflict between a placer patent and a quartz lode location made subsequent to the application for the placer patent. In investigating the questions involved, we accord full force and effect to the general rule that, where there is a conflict in evidence on a trial, the verdict should not be disturbed on appeal. The verdict in this case, then, must be sustained, if there is competent evidence to support it. We must accept as proven the fact that, at the time the application was made for a patent to the Black placer claim, its surface indicated veins of mineral bearing rock in place. It is true that witnesses on behalf of respondents testified positively that such veins or lodes were in the claim, and plainly visible as veins or lodes at the time of such
From the questions submitted to the jury and the argument of their counsel In this court, it would seem that respondents contend for this proposition of law, namely: that when an application for a placer patent is made, any lode or vein of quartz or other rock in place containing any gold, silver, lead, tin or copper whatsoever, known to exist within the boundaries of the claim (or the knowledge of whose existence could be ascertained by one examining the ground in an honest endeavor to acquire such knowledge), is excepted by section 2333, Revised Statutes of the United States, from a patent issued on such application. If this is the law, the determination of this appeal might be attended with more difficulty than it is; for it also appears from the evidence herein — admitted without objection — that some years after the application for a patent for the Black placer claim, in the discovery shaft of the Blue Dick quartz lode claim, sunk on one of the three so-called ‘ ‘traceable veins’ ’ crossing the Black placer at the time of application for its patent, a vein of ore was found carrying as much as 29 ounces of silver to the ton, as shown by one of the two assays made. But we cannot agree with the proposition that this is the law. It virtually eliminates from the question of what is the vein or lode known to exist, the elements of value, character and extent of the existing vein or lode. In Migeon v. Railway Co., 23 C. C. A. 163, 77 Fed. 256, Judge Hawley, speaking for the United States circuit court of appeals, says: “This section (2333) of the statute
“This construction as to the meaning of section 2333 is, in our opinion, founded in reason, and is in harmony with the construction given by the courts to the other sections of the statute relative to the rights of locators of mining claims upon the public lands of the United States. But, in any event, the rule, as above stated, is now too well settled to be departed from. ’ ’ In the case of Iron Silver Mining Co. v. Mike &
But the respondents urge, to meet this view entertained by the -Montana supreme court of what was held in the Mike & Starr Gold & Silver Mining Go. case, that the question of value is one solely for the jury, and the facts in this case are stronger in favor of the verdict than those successfully invoked for the same purpose in the Mike & Starr Gold & Silver Mining Co. case. This language is relied upon from the last-named decision to uphold the first contention : £ ‘It is, after all, a question of fact for the jury. It cannot be said, as a matter of law, in advance, how much of gold or silver must be found in a vein before it will justify exploitation, and be properly called a £known’ vein. ’ ’
As to what were the particular facts involved in the Mike & Starr Gold & Silver Mining Co. case, the justices of the supreme court of the United States were divided in opinion, and this fact led the supreme court of Montana to use the language
‘ ‘As an applicant for a placer patent was chargeable with notice of the existence of the tunnel, so also was he chargeable with notice of whatever a casual inspection of that tunnel would disclose. He would not be heard to say: ‘I did not enter and examine this tunnel, and therefore knew nothing of the veins apparent in it. ’ The government does not permit a person to thus shut his eyes and buy. If there be a vein or lode within the ground, it is entitled to double price per acre for it and the adjacent fifty feet; and, with such interest in the price
We reiterate the rule as laid down, after a careful review of the authorities, in Brownfield v. Bier, 15 Mont. 403, 39 Pac. 461, that to meet the designation “known” veins or lodes mentioned in section 2333, Revised Statutes of the United States, veins or lodes within the boundaries of a placer claim at the time of the application for a patent therefor, which should be excepted from a patent issued thereon, must, at the time of the said application, have been clearly ascertained, and must have been of such an extent, character, and value as to justify their exploitation. Conceding everything as proven which can in any possible view of the evidence be regarded as
Respondents pleaded the statute of limitations as against plaintiffs, but, inasmuch as they have themselves abandoned this phase of the case, we need not discuss it. Numerous other errors are assigned, particularly in reference to the instructions given by the lower court. But these also it is unnecessary to pass upon. The judgment is reversed, and the cause remanded, with directions to the district court to grant a new trial.
Reversed and remwnded.