1. It is urged that, because Huntington, Young, and Olsen did not mark the boundaries of the claim on the ground for six months after the posting of their discovery notice, their location is invalid. But a subsequent locator can not object that the first location was not marked *367in time, provided it was sufficiently marked before his location: Jupiter Min. Co. v. Bodie Consol. Min. Co. (C. C.) 11 Fed. 666. Defendants do not contend that they made a.location prior to the first day of July, 1899, — long after the location of Huntington and others had been properly marked on the ground, — and hence they are not in a position to take advantage of the delay.
2. It is next insisted that there is no competent proof of the transfer of the possessory right's of Huntington •and others to the plaintiff, as the documentary evidence in reference thereto was offered on the trial, and not before the referee. But, as we understand the law, written documents, especially such as are proved by authenticated copies, may be put in evidence on the hearing, and it is not necessary to offer them before a referee, whose duties are confined to taking and reporting the testimony. It was so held in Baker v. Woodward, 12 Or. 3 (6 Pac. 173).
3. We do not think the rule has been changed by the act of 1893 (Laws, Í893, p. 26). The provisions of such act that all documentary evidence shall be preserved and incorporated in the referee’s report were intended to refer to the documentary evidence that might be offered before the referee, and not to require that all such evidence be so offered.
4. It is next contended that the plaintiff’s remedy is In ejectment, and not by a suit in equity. The evidence shows, however, and the court below found, that the plaintiff was in actual possession of the claim in controversy at the time of the commencement of the suit, and under section 504 of the statute (Hill’s Ann. Laws) it was entitled to resort to a court of equity to determine an adverse claim thereto, and quiet its title.
*3685. And, finally, it is contended that the evidence does not support the finding that the plaintiff performed or caused to be performed the annual assessment work upon the claim in 1898, as required by the statute of the United States. From the time of the location by Huntington and others, up to 1898, more or less work seems to have been done on the claim each year, except in 1893 and 1894. The evidence as to its amount or character is not very satisfactory; but this is not material, because, if the required annual work was done by plaintiff for the year 1898, its right to the claim would be revived, although chargeable with a previous default: Justice Min. Co. v. Barclay (C. C.), 82 Fed. 554.
6. In 1898 one Probasco was employed by the plaintiff to do the assessment work for that year, and the principal question in this case is whether he performed the requisite amount thereof. There is much testimony concerning the leugth of time he was at the mine, and the amount and character of his work. Most of it, however, is given by witnesses who formed their conclusions from an inspection of the mine and their knowledge of Probasco’s whereabouts. Probasco himself testified that he did twenty days’ work, with his own tools and appliances, in the upper tunnel, of the reasonable value of $5.00 a day; but he is not able to give any clear idea of how far he extended the tunnel, or the number of hours he worked each day. Many witnesses were called for the defendants, who gave evidence to the effect that, from the appearance of the mine and the dump and their knowledge of Probasco’s employment during the time he was at the mine, he did not do the requisite amount of work. Two or three testified that they were in the tunnel in 1898, just before Probasco commenced work thereon, and again in July, 1899, and that there was no perceptible *369change, except that it had been extended about three feet. There is evidence in the record, however, tending to show that it would have been impossible at that time to determine, by a mere inspection of the tunnel, how much work had been done the year before, on account of the action of the water on its walls. The most reliable testimony upon which to base an intelligent opinion on this point is that of the witness Barbee, who says that in the fall of 1897 he went out to the mine for the express purpose of ascertaining whether the requisite amount of work had been done for that year, and while there measured the upper tunnel by stepping, and that it was in fifty feet at that time. It is admitted, and so testified by the defendants, that in July, 1899, this tunnel was in seventy-one feet. The evidence further shows, and it is not pretended otherwise, that no work was done in it between the time it was measured by Barbee in 1897 and July, 18995 except what was done by Probasco in the fall of 1898; so that, if Barbee’s testimony as. to the length of the tunnel in 1897 is true (and it is uncontradicted), it must necessarily follow that Probasco drove the tunnel at least twenty feet in 1898. The great weight of the evidence shows that it is worth at least $5.00 a foot to do such work. It would seem, therefore, that the court below was fully justified in finding that the claim was not forfeited, as alleged, on account of a failure to do the requisite assessment work, and especially since “a forfeiture of a mining claim can not be established except upon clear and convincing proof of the failure of the former owner to have work performed or improvements made to the amount required by law”: Hammer v. Garfield Min. & M. Co. 130 U. S. 291 (9 Sup. Ct. 548). The decree is therefore affirmed. Affirmed.
AI-generated responses must be verified and are not legal advice.
