12 Mont. 301 | Mont. | 1892
This action was brought under .the provisions of section 2326 of the Revised Statutes of the United States, to determine the adverse claims of plaintiffs and defendants in and to a certain piece of land located as a quartz lode mining claim. Plaintiffs claim the ground in dispute under a quartz lode mining location made and recorded as the Angelieka Lode Claim, which is the senior location. Defendants claim the same land by virtue of .a subsequent quartz lode location, made and recorded as the Charlotte Lode Claim. At the commencement of the trial it was admitted by defendants’ counsel, in open court, as recited in the record of the case, that “the Angelieka Claim, named and described in plaintiffs’ complaint,
The foregoing quotation from the record shows at once the scope of the controversy involved in this action. The onus was upon defendants to show the nonrepresentation of the said Angelieka Lode Claim in the year 1887, and failing to establish that affirmation, defendants’ claim to said land failed.
The jury sitting in the trial of said cause returned their verdict in favor of plaintiffs, as follows: “We, the jury in the above-entitled cause, find for the plaintiffs herein; and that the plaintiffs herein were at the time of the commencement of this action, and are now, the owners and entitled to the possession of the premises in controversy in this suit.” Judgment was entered accordingly in favor of plaintiffs. Defendants thereupon moved the court for a new trial, on the grounds of alleged error in law occurring at the trial, and also that the evidence was insufficient to justify the verdict; specifying, in the statement of the case, error in the instructions given by the court to the jury, and particulars in which the evidence is claimed by defendants to be insufficient. Said motion for a new trial having been brought to a hearing, and overruled by the court, defendants prosecuted this appeal from the order overruling said motion, and from the judgment. The case, therefore, stands for review in this court on the assignments of error committed in the instructions given to the jury, and alleged
The instruction given by the court to the jury, objected to by appellants as erroneous,' reads as follows: “It is not necessary that the labor done upon a claim to represent it be actually paid for. If labor of sufficient value be done on a claim within a given year, that is sufficient, even if it be not paid for; the payment being a matter between the laborer and the •owners.”
Appellants contend that the labor performed, as annual representation of a mining location, is not effectual for that purpose, unless actually paid for; that, although such labor was performed on the claim as required by law, the same'does not avail, unless the claimant has actually paid for such labor, if the work was performed by another. On this theory is predicated the objection to the instruction recited above, and to support their position appellants’ counsel cite the statute of this State, which provides as follows: “The owner or owners of any quartz lode claim, who shall perform, or cause to be performed, the annual labor or make the improvements required by the laws of the United States, in order to prevent a forfeiture of the claim, may at any time during the year, or within sixty days after the termination of said year in which said work was done or improvements made, file in the office of the county clerk and recorder of the county in which said claim is situated, an affidavit or affidavits of the person or persons who performed such labor or made such improvement, showing — First, the name of the lode, and where situated; second, the number of days’ work done, and the character and value of the improvements placed thereon; third,, the date or dates of performing said labor and malciug said improvements; fourth, at whose instance or request said work was done or improvements made; fifth, the actual amount paid for said labor and improvements, and by whom paid, when the same was not done by the owner or owners of said quartz claim.” (Comp. Stats, div. 5, § 1483.)
In relation to said affidavit, the statute further provides that “the affidavit or affidavits named in the preceding sections, or copies thereof, duly certified by the recorder of the county, shall be received or admitted in evidence in any court of justice
The exaction of the statute is that “not less than one hundred dollars’ worth of labor shall be performed or improvements made during each year” on the mining claim, in order to continue the lawful holding thereof by the claimant until patent has been issued therefor. The fulfillment of that provision lies in the performance of the labor or the making of the improvements required. (U. S. Rev. Stats. § 2324.)
Section 1483, fifth division of the Compiled Statutes of this State, above quoted, provides a convenient method of preserving prima fade evidence of the annual representation of mining claims, by the performance of the labor or making of the improvements, of the value required thereon, by putting such evidence in the form of an affidavit, stating the facts required, and recording the same as provided. This. statute relates, not to the effect of doing the work, or making the improvements, •as required by law, but to the method of preserving prima fade evidence of the fact that such requirement has been fulfilled. Our opinion is that said instruction of the court to the jury states a correct view of said statute. "We have carefully examined all the cases cited by appellants’ counsel in support of the construction of said statute which he contends for, and find no support for his theory in them.
Appellants complain, also, that said] instruction assumes that one hundred dollars’ worth of labor or improvements was expended on said claim in the year 1887. We are wholly unable to find any such assumption in the language used in that instruction. The expressions used by the court therein seem to have been so selected as to guard against such assumption, and exclude from the impression conveyed to one reading, or hearing read, said instruction, the idea which appellants’ counsel seek to attribute to it.
We proceed to a consideration of the testimony set forth in the record, in view of the assignment that the same is insufficient to justify the verdict.
As above shown, the whole controversy relates to the question whether the Angelieka Claim was represented in the year 1887 by plaintiffs causing the full amount of work to be done,
It rested with defendants to establish the negative of said question by preponderance of proof. Defendants admit that the Angelieka Lode Claim was located some time prior to 1887, and up to that year was duly represented by the claimants thereof. It appears to be conceded on the part of defendants’ witnesses that seventy-five dollars’ worth of work was done on the Angelieka Claim by one Tigeman in 1887, but they dispute that the further amount of twenty-five dollars’ worth of labor was done thereon in that year. Fred Feilke, one of the locators-of the Charlotte Claim, was the principal witness who testifed on behalf of defendants. He testified that the owners of said Angelieka Claim contracted with said Tigeman to do the required amount of labor on said claim in the year 1887, but that Tigeman failed to do all the required work, because he was not paid in full therefor; that one Pfaff, the owner of an interest in said Angelieka Claim, was liable to contribute twenty-five dollars of the one hundred dollars’ worth of labor required thereon in the year 1887; that said amount was not contributed, and Tigeman' for that reason refused and failed to finish the representation work on said claim; and to that extent the required work was not done or improvements made on said Angelieka Claim for the year 1887. Feilke testified that he had been well acquainted with said ground for several years; that he had personal knowledge of all the work which was done on said mining claim in the year 1887, by or on behalf of the claimants of the Angelieka Lode, and that the same did not amount to one hundred dollars’ worth of work done, or improvements made thereon, in the year 1887; that Tigeman told the witness Feilke that he did not perform all the required work on said claim for the year 1887, because of the delinquency of Pfaff in making payment of his portion of the expenses thereof; that Tigeman made the same statement in the presence of Pfaff, in the office of John H. Curtis, one of the defendants; that Pfaff admitted in conversation with said witness, in 1888, that Tigeman did not perform all the required work on the Angelieka Claim for the representation thereof in the year 1887, for the reason that he (Pfaff) failed to pay his
John H. Curtis testified on behalf of the defendants, that he was present on the occasion when a conversation was had at his office between Feilke, Stocker, and Pfaff, mentioned by Feilke in his testimony, but stated that he could not remember what was said.
Green Majors, one of the defendants, called as a witness on their behalf, testified that he was present at the office of Curtis when said conversation mentioned by Feilke took place between Feilke, Stocker, and Pfaff, but could not remember what was said at the time.
None of the witnesses called on behalf of defendants testified! to having examined said claim in the year 1887, or of having any knowledge of the work done thereon, except Feilke, who. testified substantially a? related above.
On behalf of plaintiffs, a witness, Joseph Rosenthal, testified that he was acquainted with the Angelieka Lode Claim; that an interest in said claim belonged to the estate of Samuel Louis,, of which estate he was administrator; that as such administrator he looked after the representation of said claim to protect the-interest of said estate; that witness employed Tigeman to do the required amount of work on said Angelieka Claim for the year 1887; that when he contracted with Tigeman to do said work he told Tigeman he did not know where Pfaff and Sherman were, and Tigemau said, “that was all right, he would
Pfeff testified, on behalf of plaintiffs, that he paid Tigeman twenty-six dollars as his share of the expenses for doing the representation work on the Angelieka Claim in the year 1887 to represent the same for that year, and had Tigeman’s receipt for said payment; that he (Pfaff) received at Missoula, Montana, a letter from Tigeman, stating that Tigeman had performed the assessment work on said Angelieka Claim for the year 1887, and Pfaff, in response, sent Tigeman said twenty-six dollars in payment of the prop adion thereof, for which said Pfaff was liable, by registered letter, and had Tigeman’s receipt for said letter.
The said Tigeman did not testify at the trial of this action. It was testified by witness Feilke that defendants did not know where Tigeman was at that time.
Eeuben Sabolsky testified that he was a miner by occupation, and of long experience as such; that he was acquainted with the Angelieka Lode Mining Claim; that he examined the work done thereon in the year 1887, in the latter part of November, soon after the same was performed. He described said work, which consisted of sinking shafts on said claim, and testified that he thought “there was a good hundred dollars’ worth of work done there in 1887.”
A careful examination and comparison of the evidence re
Affirmed.