Drummond v. Long

| Colo. | Dec 15, 1886

Elbert, J.

The certificate of location of the Portland lode was admitted in evidence on the trial in the court below, over the objection of the plaintiffs that it did not comply with the requirements of section 2324 of the Be-vised Statutes of the United States, in that it did not contain such a description of the claim located, by reference to some “.natural object or permanent monument,” as would identify it. Section 2399, Gen. St. 722, provides that the discoverer of the lode shall record his claim in the office of the recorder of. the county, and section 2400 requires that the certificate of location thus recorded shall contain, among other things, such a description as shall identify the claim with reasonable certainty. In this respect the requirement of the federal and state law may be said to be substantially the same. That degree of certainty with which the final survey for a patent fixes the locus and boundaries of the subject-matter of the grant is not required in the original location to be made by the discoverer of the lode, nor would it be practicable without the aid óf a professional surveyor. While this is true, fixing the locus of the ground sought to be appropriated, in the first instance, with reasonable certainty, by reference to natural or artificial monuménts, is practicable, and is of the first importance to prevent frauds and mistakes. The government should Be able to identify the premises originally located as the premises, sought to be patented. Other parties dealing with and seeking to appropriate neighboring territory should be able to identify the claim located, to the end that they may proceed with their own locations, without the danger ,of intruding upon others, or of having the locations of others swung or shifted upon their own. Mining litigation under the acts of congress discloses frequent attempts to secure a patent for mining territory other than the territory originally located, in fraud of the government and in fraud of the rights of neighboring locators. The foregoing are some of the considerations upon which the statutory requirement we are considering is based.

The intention of the provision is to give one seeking the locus of a recorded claim something in the nature of. an initial point from which to start, and, following the coui-se or distance given, find with reasonable certainty the claim located. The identification must be by reference to some natural object or permanent monument. Stone monuments, blazed trees, the confluence of streams, the point of intersection of well-known gulches, ravines or roads, prominent buttes, hills, mining shafts, etc., are enumerated as satisfying the requirements of the law. The permanent monuments of a neighboring mining claim are also regarded as sufficient. Wade, Min. Law, 113; Quimby v. Boyd, 8 Colo. 200; 6 Pac. Rep. 462; Gilpin Co. Min. Co. v. Drake, 8 Colo. 590; 9 Pac. Rep. 787; North Noon Day M. Co. v. Orient M. Co. 6 Sawy. 300; 1 Fed. Rep. 522; Jupiter Min. Co. v. Bodie Con. M. Co. 7 Sawy. 96" court="D. Cal." date_filed="1881-03-12" href="https://app.midpage.ai/document/jupiter-mining-co-v-bodie-consolidated-mining-co-8122723?utm_source=webapp" opinion_id="8122723">7 Sawy. 96; 11 Fed. Rep. 666.

In the certificate before us we do not find any such reference to either a natural object or a permanent monument as meets the substantial requirements of the statute. Describing the lode as being on the southwest side of Mount Hardin, and in Portland gulch, locates the lode generally. It is not, however, that definite location, by reference, which the statute contemplates. Faxon v. Barnard, 1 Colo. Law Rep. 147. The certificate also describes the discovery shaft of the Portland as being about one thousand five hundred feet north of the Hawk Eye lode. The evidence discloses nothing respecting the character of the Hawk Eye lode. We assume, however, that it has been duly located in compliance with the laws of congress and of the state; that it is in the usual form of a parallelogram, one thousand five hundred feet in length by three hundred feet in width; and that it contains about ten acres. A tract of land of such dimensions cannot be treated either as a natural object or permanent monument, within the meaning of the act of congress. The discovery shaft of the Portland is not tied definitely to any corner or monument of either the location or lode. Prom what point on the Hawk Eye location or lode is one to start to find and identify the discovery shaft of the Portland? With the starting point anywhere in a parallelogram of ten acres, the discovery shaft is anywhere about one thousand five hundred feet distant in ten acres to the north. To say that the lode and' not the location is meant aids but little the indefinite character of the reference. Under such conditions, identification with that reasonable certainty required by the statute is an impossibility, and it cannot be said that the statute, in this respect, has been complied with. To hold otherwise would leave the requirement of but little practical utility. The insufficiency of the location certificate in this respect is apparent upon its face, and we do not see that it can be aided by evidence aliunde. The effect of the omission is to leave the certificate of location void. Gilpin Co. Min. Co. v. Drake, 8 Colo. 586" court="Colo." date_filed="1885-12-15" href="https://app.midpage.ai/document/gilpin-county-mining-co-v-drake-6561340?utm_source=webapp" opinion_id="6561340">8 Colo. 586; Faxon v. Barnard, 1 Colo. Law Rep. 147.

In this view, the court below erred in admitting the certificate of location of the Portland lode in evidence, and its judgment must be reversed. The judgment of the court below is reversed and the case remanded.

Reversed.