218 F. 959 | D. Mont. | 1914
This is a quartz placer controversy. Maintiff’s placer patent was applied for by its predecessors in interest on July 18, 1879, and upon part of the land conveyed by it defendants’ Zeta lode claim was located on January 1, 1901. Defendants have failed to establish that this lode was “known to exist” when the placer patent was applied for, and so plaintiff is awarded decree quieting its title.
Amongst several witnesses presented by defendants, only two, Baxter and Yountz, prior to or on July 18, 1879, had any acquaintance with visible conditions upon the premises involved. Their acquaintance was casual, limited, slight; their recollection somewhat general, vague, and uncertain. In substance Baxter testified that in the spring of" 1878, passing, he saw in the vicinity of some visible outcrop some men prospecting in a small hole 3 feet deep, wherein he saw what “looked like pretty good quartz.” This was 100 feet, or 40 or 50 feet, east of a road now a city street, and he believes somewhat doubtfully that a certain old hole or shaft about 100 feet east of said street and upon the Zeta lode, and the nearest to said street of several holes or shafts thereon, occupies or is about the site of said prospect hole.
Yountz testified that in the spring of 1879 one Turner claimed the premises, that he casually visited the same, and there saw “quartz and ore,” very little outcrop, and a hole 5 or 6 feet deep near 100 feet east of the said road, and that is now the shaft referred to by Baxter. In answer to a question whether he saw “evidence of a vein” in said hole he said, “Yes,” saw “quartz and iron,” and that it was “pay ore,” wherein he could see gold and silver with the unaided eye.
The premises involved were and are in the vicinity of Butte, Mont. They are upon and near the foot of a gentle slope that, from the hills iii which are the great mines of Butte, descends a mile and a half to Silver Bow creek. They were a valuable placer mine; one of defendants testifying that he profitably worked them for placer gold. Of evidentiary circumstances and conditions in 1879 little appears, save that in the locality of the premises involved subterranean water was within 8 to 10 feet of the surface, Butte was without railroads and, until late in 1881, silver was worth around $1 per ounce, and ore milling and smelting facilities were limited, the charges for treatment
It is evident, however, all was yet relatively primitive, one witness for defendants testifying that the people of'Butte did not then know the possibilities of the district, that they even considered Anaconda Hill (the richest on earth) worthless, and any one there working crazy, and that the concensus of opinion was that if the Alice mine (then the noted lode mine of the district and located upon the hills more than two miles from these premises) '“went down” 500 feet, the “camp was good” for at least a short time. There is evidence that after the date of the application for the placer patent development disclosed that the Zeta lode is from 8 to 26 feet wide, and continuous for about 900 feet here involved; that numerous holes or shafts were sunk along it at a cost of more than $5,000; that in the surface workings the lode is of broken, disintegrated,- and mixed matter, quartz, altered granite, talc, iron oxides, etc.; that what Turner did is unknown; that “in the early 80’s” some one near the west end and about where Baxter saw men prospecting in 1878 sunk a shaft 60 feet deep and drifted therefrom, wherein Baxter saw a “vein in place,” and they had some “pretty good ore”; that later Baxter was interested in a lode location made upon the premises in 1889, performed some annual labor upon it, and in 1894 from lessees received about $70 or one-third of 25 per cent, royalties ; that defendants have continuously performed annual labor upon the Zeta lode; that therein in 1914 they extracted 4 tons of ore carrying 23 ounces of silver and $9.40 of gold per ton; that this was from the east end, and a winze wherein was one foot of ore; that the water was “too strong,” and they quit work; that present samples from the Zeta discovery shaft, about 250 feet east of the said street, assayed from eight-tenths of an ounce of silver and 60 cents of gold per ton to 10.6 ounces of silver and 10 cents of gold per ton; that a great many lode claims were located in the vicinity of the premises, some prior to 1879, and since said date from some of them valuable ores have been mined, and perhaps profitably; that, since the placer patent issued, patents have also issued for 12 lode claims upon the premises by the placer patent conveyed; that in 1878 one of the placer patentees and others located a lode claim, which in 1879 was relocated by Turner, and that said locations were on the now Zeta lode; that the said placer patentee, and before whom the lode location in which he had a part was verified, had no knowledge thereof, save that it was one of scores wherein prospectors included him in consideration that he paid recording and other fees; that the Zeta lode presents the same appearance (now) as all other lodes in the vicinity; that no lodes are now being worked in the vicinity; and that present smelter charges for ore treatment are $6 to $8 per ton.
A number of, witnesses for plaintiff in rebuttal testified to some acquaintance with the locality involvéd béfore and after July 18, 1879; that they prospected it thoroughly, assayed samples, and found no lodes warranting location; that the' quartz found had no value, and that,
_ To revert to the, evidence herein, all of subsequent development, disclosures, results, and conditions not consequent,, is inadmissible and not considered. It will not do to contend that what is upon the premises now is some evidence of what was upon, them then, for that is not the issue; it being what, was known to. be upon the premises then. There are circumstances, not here involved, in view of which such evidence would be competent, for limited purposes. For instance, if a known lode, was made, to appear, to determine its course and distances, or if the placer patentee asserted no lode existed, even at the time of trial, to rebut, the assertion, or the like. Subsequent events conditionally admitted in a trial to the court are harmless, but in a trial to a jury would tend to obscure the real issue, to deceive, to injustice.
Doubtless in the light of all the succeeding years he honestly so believes. Knowledge after the event is always easy, and to the untrained mind, influenced by time and results, and perhaps by regrets for lack of foresight in earlier years and for opportunities not grasped, it is difficult to consider only what was known then, to now judge as it would have judged then. It inclines to judge by the event.
To give the testimony of Baxter and Yountz all the value to which it is entitled, the most that can be said is that prior to July 18, 1879, they saw upon the premises involved what indicated a possible lode of possible mineral of value possibly sufficient to justify further exploration — so far short of a lode “known to exist” that, as they describe it, it is doubtful if it would support a location. See Chrisman v. Miller, 197 U. S. 320, 25 Sup. Ct. 468, 49 L. Ed. 770.
The defendants have failed to prove that on July 18, 1879, the Zeta lode was “known to exist.” The court finds it was not known to exist, plaintiff’s placer patent conveys title to the premises involved, and plaintiff is entitled to recover.
Decree accordingly.
If Noyes v. Clifford, 37 Mont. 138, 94 Pac. 842, is for a rule more liberal to tbe lode claimant, it is at variance with tibe construction of the placer mining law declared by the Supreme Court of the United States, and so lacks authority. ¡
Note that this case is difficult to reconcile with the theory that a placer-patent does not convey lmpwn lodes by defeasible title but excepts them altogether, in that it denies that the Land Department can thereafter issue patents to such lodes to the prejudice of the placer patentee, “who has a prior patent for the land.”