9 S.D. 636 | S.D. | 1897
In January, 1878, Charles H. Havens and Rufus Wilsey located a mining claim in the Biack Hills under the name of the “Golden Sand Lode.” In June, 1878, Wilsey died, leaving a widow and several children, who then, and have ever since, resided in the state of Iowa. After the death of Wilsey, Havens continued to make the required annual expenditure upon the claim until 1892, when he sold the same to Thomas H. White, the managing agent of the defendant. At the time of his sale, Havens assumed to be the owner of the whole claim, by virtue of proceedings taken under the provisions of Sec. 2324, Rev. St. U. S., by which he sought to transfer the interest of Wilsey to himself. The validity of these proceedings constitutes the principle question in this case. To fully comprehend the various questions arising out of these proceedings, it may be proper to state that, soon after the death of Wilsey, one John Stephens was appointed administrator of his estate by the probate court .of Lawrence county. This administrator died in 1888, and there was no administrator of the estate of Wilsey after that time until 1893, when the plaintiff Elder was appointed. After Thomas H. White purchased the Golden Sand claim from Havens, he, through Joseph M. Thomas, a nephew, caused the said Golden Sand claim to be relocated un
It will be noticed that from 1888 to 1893 there was no administrator of the estate of Wilsey. The record discloses no transfer of the Golden Sand location by Thomas H. White to the defendant, and its title rests entirely upon the North lode location. It will be observed that the Golden Sand lode was located in 1878 by Havens and Wilsey; that Wilsey died during the same year; that Havens did all the annual work required upon the claim from 1878 to 1892, and that in the latter year he transferred the whole claim to the agent of defendant; the Golden Sand lode was then relocated by the agent of the defendant as the North lode, and a patent issued therefor; and that the same was conveyed to the defendant the Horseshoe Mining Company. It is claimed by the plaintiffs that the relocation was a fraud upon them. But, in the view we take of the case, the only material question to be considered is as to the validity of Haven’s proceedings in his attempt to acquire the
In order to establish the fact that Havens had complied with the provisions of the United State statute, and had thereby acquired the Wilsey interest, defendant offered in evidence two published notices, published at the same time, and being substantially copies of each other, except that the first covered a period of eight years and the latter one .year. The notice is as follows: “Notice of Forfeiture. To Rufus Wilsey, his heirs, administrators, and to all whom it may concern: 'You are hereby notified that I have expended $800 in labor and improvements upon the Golden Sand lode, * * * as will appear by certificate filed on Jan. 2nd, 1889, in the office of the register of deeds of said Lawrence county, in order to hold said premises under the provisions of the laws of the United States and of this territory; that being $100 per year, the amount required to hold the claim for the years ending December 31st, 1880, December 31st,>1881, December 31st, 1882, December 31st, 1883, December 31st, 1884, December 31st, 1885, December 31st, 1886, and December 31st, 1887. And if, within ninety days after this notice by publication, you fail or refuse to contribute your proportion ($400, being $50 for each of said years), your interests in said claim will become the property of the subscriber, under
Congress in 1872 enacted the present mining law, and therein provided that all valuable mineral deposits should be “free and open to exploration and purchase, and the lands in which they are found to occupation and purchase.” The act prescribes the size of claims, manner of locating same, and that not less than $100 “worth of labor shall be performed or improvements made during each year.” The act also provides
But, in the view we take of the provisions of the United States statutes from which we have quoted, the question of the rights of heirs and of administrators over the real property of a deceased becomes unimportant. We are clearly of the opinion that congress, by the provision we are considering, intended that the notice published should have the effect of notice to all parties who might have any interest under the co-owner who is in default, and cut off all such interests, whether the parties claiming are minors, heirs, or lien holders, when, as in this case, the notice is so addressed as to include all parties. It is apparent that congress, by the notice, intended to give to one or more co-owners who may cause the required work to be done upon the claim a summary remedy for collecting from a co-owner his proportionate share of the expense so necessarily incurred to protect the claim, either in money, or by taking the co-owner’s interest in the claim. The evident purpose and object of the law of 1872 were to encourage the exploration and development of the mineral lands of the United States, and the sale of the same, and all the provisions of the law seem to have been framed with that object in view. This is apparent from that part of the act providing that, unless the annual expenditure shall be made each year, the claim shall be subject to re
The other objections made to the admission of the published notice, it seems to us, do not merit very much consideration. The objection that the heirs are not individually named in the notice cannot be sustained. To require of a co-owner to ascertain, at his peril, the names of all the heirs of delinquent co-owners, would be to impose upon him a burden the law never intended should be imposed, and one that could be of no possible benefit to any one, as the heirs, if personally named, would be no more likely to obtain actual notice than when named simply as heirs. Neither do we think there is any merit in the objec
There are numerous other errors assigned in the record, but we do not deem it necessary to discuss them at this time. The judgment of the circuit court, and the order denying a new trial, are reversed.