85 Wash. 162 | Wash. | 1915
Appellant is a mining corporation claiming the right to possession of eighteen located mining claims in the Sultan Mining District, in Snohomish county, Washington, having acquired same by location and by purchase from other locators during the years 1910 and 1911. The claims have never gone to patent, but are held and operated under the general mining laws of the United States and of this state, requiring annual assessment work to be done on each claim or upon one claim for the entire group. The claims in issue were held and operated as a group. The president and most active stockholder of the appellant was one Nicholas Rude-
On April 4s, 1913, the respondent, Kimbel, entered into a contract at Dubuque, Iowa, signed by himself and Mr. Rude-beck, on behalf of the railway company and the copper company, whereby Kimbel agreed to subscribe for stock in both companies and be employed as a laborer for them at the agreed price of fifty cents per hour, out of which his board was to be retained at the rate of one dollar per day, and seventy-five per cent of the remainder of his wages was to be applied upon tbe purchase of stock of the par value of the stock in each of the companies, to wit, Florence-Rae Copper Company, the Florence-Rae Railway Company, and another company which seems to have been projected called the Florence-Rae Lumber & Development Company. On June 23, 1913, respondent arrived at Startup, Washington, and about two days later he went to the group of mining claims and there went to work, under the direction of E. A. Fengler, in assisting to move and place two donkey engines. On July 14, 1913, the respondent posted notices of location upon eleven mining location claims, all of which were over eleven claims of the appellant. The appellant was informed of this on about July 21, 1913. The appellant thereupon ordered
The respondent answered appellant’s complaint, denying trespass, denying the commission of any unlawful acts by him, and setting up two affirmative defenses, in the first of which he alleged that the appellant had failed to perform the assessment work required by the laws of Washington and of the United States, upon the mining claims described and mentioned in appellant’s complaint, for the years 1911 and 1912, and that on the 14th day of July he entered upon said claims and relocated the same; that he was prevented from perfecting his locations by the arrest heretofore mentioned, and by the restraining order pi'eventing him from going upon the same. He alleged, as a second affirmative defense, that the boundaries of the mining claims mentioned and described in appellant’s complaint were never properly staked or marked upon the ground by appellant prior to the 5th day of August, 1913, and that prior to said date it was impossible for any person to tell from any marks placed upon the grounds what property was intended by the appellant to be included within the boundaries of said mining claims. Wherefore respondent prayed that the action be dismissed and that he be adjudged the owner of said mining claims. The new matter set forth in the affirmative defenses was denied by the appellant’s reply. Trial was had before the court in November, 1913.
In rebuttal appellant attempted to show, by the respondent and other witnesses, that the respondent located these claims fraudulently and under a fraudulent agreement and collusion
The court found, among other things, that the appellant failed to perform the necessary assessment work upon said group of claims for the year 1912; that the fair and reason-able value of all the work so performed was and is the sum of $1,000, and no more; that said mining claims, by reason of the failure to perform said necessary assessment work, became subject to relocation on the 1st day of January next following, to wit, 1913; that on July 14, 1913, while said lo
The contentions of appellant are as follows: (1) That there never was a valid relocation of the claims by respondent; (3) that, even if the assessment work had not been performed in 1913, there was a resumption of work by appellant in May, 1913, which resumed work continued from that date until after the alleged relocation by respondent in July; (3) that the alleged relocation was made by respondent in collusion with E. A. Fengler, a manager and stockholder of the appellant company, and F. M. Curtis, another stockholder of the appellant, in order to defeat the title of the corporation to its mining claims, and to secure to themselves advantages flowing from a breach of their trust obligations to the corporation and other stockholders; (4) that the assessment work for the year 1913 had been fully performed by the appellant.
I. We are inclined to think that the first contention of appellant, that the relocation notice was not sufficient, is ruled by the case of National Milling & Miming Co. v. Piccolo, 54 Wash. 617, 104 Pac. 128. The statute, Rem. & Bal. Code, § 7365, is as follows:
“The relocation of forfeited or abandoned quartz or lode claims shall only be made by sinking a new discovery shaft and finding new boundaries in the same manner and to the same extent as is required in making a new location, or the relocator may sink the original discovery shaft ten feet deeper than it was at the date of the commencement of such relocation, and shall erect new, or make the old monuments the
That portion of the statute referring to the sinking of the shaft does not apply to mining claims west of the summit of the Cascade Mountains, under a further provision of the act. The location certificates of respondent do not state that the claims were relocated as forfeited or abandoned property. The conclusion of the lower court was that, inasmuch as the word “forfeited” is not contained in that part of the statute reciting that the location certificate shall state whether the whole or any part of the new location is located as “abandoned property,” the act applies only to abandoned property, and does not require a relocator to state in the posted1 notice that he relocated the mining property as forfeited claims. It seems plain to us, however, that the words “abandoned” and “forfeited” in the act are used synonymously and interchangeably, and that the word “abandoned,” in the latter part of the act, includes or means in' the alternative “forfeited” as used in the first part of the act. This was the construction given to an almost identical act by the supreme court of Ai’izona upon an Arizona statute, and approved by the supreme court of the United States in Clason v. Matko, 223 U. S. 646. In National Milling & Mining Co. v. Piccolo, supra, this court said:
“The appellant, it will be remembered, was attempting to relocate a forfeited claim, n'ot a claim upon vacant mineral land of the United States. To do this, under this provision of the statute, it was necessary . . . that he state in his location certificate ‘if the whole or any part of the new location is located or [as] abandoned [or forfeited] property.’ A mere marking of the ground, and posting notices proper for an original location, was not sufficient. A relocation of a forfeited claim must comply with this section of the statute to be valid.”
It will be observed that the statute for relocation of mining claims specifically provides that a new location monument shall be located, and the location certificate shall state if the whole or any part of the new location is located as abandoned
II. There is a further and substantial reason why, in our opinion, the attempted relocation by the respondent was invalid, and that is that the appellant had resumed work in good faith and expended large sums of money for the purpose of developing the mine after the first of January, 1913, regardless of whether or not the previous year’s assessment work had been fully done. The evidence is abundant and, we think, overwhelming to the effect that the donkey engines, wire cable, and all the labor used in moving and installing the same, were intended specifically for the development and operation of the mines and not of the railway. It is true that they were to be secondarily used for the purpose of aiding in
The evidence is almost uncontroverted that several thousand dollars had been expended in furnishing and moving the engines and other material and in building and improving trails and roads for the better development of the mine, commencing about May 26, 1913, and continuing without interruption until the time at which respondent attempted to relocate said claims. The evidence is overwhelming that the appellant had no intention whatever of abandoning the mining claims or any of them, but on the contrary was spending large sums of money for labor and materials to develop them. The respondent himself was employed by the appellant in laboring for a time to that very end. The respondent could not claim, with any show of good faith whatever, that he believed appellant had abandoned, or was intending to abandon, any of said claims. He testified that he relocated the claims in question for the reason, as he said, that he had been informed by Mr. Curtis, another of the employees and a stockholder of the appellant, that appellant had not done the larger part of the assessment work for 1912. He knew the precise situation and boundaries of appellant’s claims. The penalty for failure to comply with the requirements of the law in respect to performance of annual labor is that the location shall be
The term “forfeiture” does not .appear in the statute, but the courts employ it as a comprehensive word indicating a legal result flowing from a breach of condition subsequent, subject to which the locator acquires his title. The courts do not incline to the enforcement of this class of penalties, which have always been deemed in law odious. Lindley, Mines (3d ed.), § 645; National Milling & Mining Co. v. Piccolo, supra; Emerson v. McWhirter, 133 Cal. 510, 65 Pac. 1036. The Federal statute also provides that:
“Upon a failure to comply with these conditions [assessment work] the claim or mine upon which such failure occurs shall be open to relocation in the same manner as if no location of the same had ever been made; provided, that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.” U. S. Rev. Stats., § 2324.
A forfeiture does not ensue from the mere failure to comply with the law. It requires the intervention of a third party and a relocation of the ground before any forfeiture can arise. When thereby such forfeiture becomes effectual, the estate of the original locator is hopelessly lost, and there is no possibility of its being restored. Lindley, Mines (3d ed.), § 651. Resumption of work at any time prior to the lawful inception of an intervening right prevents forfeiture. Belk v. Meagher, 104 U. S. 279.
One seeking to avail himself of the failure of a preceding locator to comply with the law, in order to secure a relocation of a mine, must establish such failure by clear and convincing proof, and the court will construe a mining regulation or custom so as to defeat a forfeiture if it can, and every reasonable doubt will be resolved in favor of the validity of the mining claim as against the assertion of a forfeiture. 27 Cyc. 600; Lindley, Mines (3d ed.), §§ 651, 654; Whalen Consol. Copper Min. Co. v. Whalen, 127 Fed. 611; McCulloch
All the work done by the stockholder Fengler and his associates and the employees under him, in moving the engines and cable and building and repairing roads and trails, was done for the copper company, according to Fengler’s own testimony, and his solemn declaration by way of lien claim against the Florence-Rae Copper Company’s mineral claims. All work done for the railway company was excluded from this lien. A sum largely in excess of $2,000 was spent for labor alone for the benefit of the appellant’s mineral claims, commencing in May, 1913. We are convinced that this constitutes such a resumption of work in good faith before the alleged relocation that it defeats respondent’s attempted relocation. There is some suggestion in the record on the part of respondent that this is a question of fact on which there is a conflict of testimony, and which the trial court decided on the facts. But as we have said before, we do not consider that there is any conflict of evidence worthy of note upon this question. It is true that secretary Brackett testified that the cost of the donkey engines was charged by him upon the railway company’s account. But that does not in any way controvert the fact, established by other witnesses of both the respondent and the appellant, that they were purchased, and the labor in moving and installing them, and other materials and labor, were furnished, for the purpose of improving and facilitating the development of the mines.
The decree of the lower court will therefore be reversed, and the cause remanded with instructions to grant the relief prayed for by appellant.
Morris, C. J., Mount, Parker, and Chadwick, JJ., concur.