151 P. 368 | Or. | 1915
Opinion on the Merits
Affirmed February 6, 1917.
On the Merits.
(162 Pac. 1063.)
Department 2. Statement by
This is a suit to have respondents declared trustees for appellants of a right to possess and purchase from the state land board about two acres of school land valuable for mining purposes, in the northwest quarter
For appellants there was a brief over the names of Mr. Alfred E. Reames and Mr. Bert Schlesinger, with an oral argument by Mr. Reames.
For respondents there was a brief with oral arguments by Mr. H. D. Norton and Mr. Gus Newbury.
It appears that on or about the fifth day of February, 1913, appellants T. M. Anderson and T. J. Anderson located a mining claim on the south half of section 36, township 39 south, range 7 west. The claim was called Grand Prize mine. A location notice was posted near the point where mineral was discovered. The claim was staked out on the ground and its corners were marked. The location notice was sworn to on the 2d of April, 1913, and recorded on the same day in the records of the Illinois mining district, in which the property is situate. It was recorded on the 5th of April in the mining records of Josephine County. The claim as marked by appellants Anderson included the property in dispute in this ease, but a careful survey, based on the description, contained in the recorded notice shows that this description does not cover the property in dispute. The section of land on which the location
“Any citizen of the United States, finding precious minerals upon any unsold lands of the State of Oregon may apply to the state land board for a lease of any amount of land not to exceed the amount and dimensions allowed by the mining laws of the state and the United States.”
Section 3902 provides in part as follows:
“The manner of locating a mineral claim upon state land shall be in accordance with the law of the state regulating the location of mineral claims on government lands.”
Subsequent sections of the Code provide the terms on which such claims may be leased and limit the amount of ore which may be taken from them by the lessees.
The location of these appellants is attacked on several grounds, but we shall assume for the purposes of this opinion that the location was valid, and that the locators acquired thereby the rights incident to a mineral location on state lands. We shall also assume that the claim as located included the property in the northwest quarter of lot 2 in section 36, which is in dispute in this case. For the proper understanding of what follows it should be said that lots 1, 2, 3 and 4 are the southerly subdivisions of the section; that they each contain slightly in excess of 40 acres of land, and that lot 1 is in the southwest corner of the section, the other lots extending in an easterly direction respectively therefrom. Appellants Anderson after locating the mine continued to work it, taking out enough gold to pay their living expenses. Their development extended well over the property, and included at least two diggings on the portion of the property in dispute in this case.
“I received the recept and certificate for the purches of 40 acers in Lot 3 and lot 4 of section 36, it is all right onley it cuts me short in the length of my two mining claims and leaves out the west end whare I am working and if you will sell me 660 feet by 660 feet making 10 acers in lot 2 joining the west end of my claims it will make my claims all most as they are located what makes it short you bound me to the section line, I am a poore man and have worked hard on this ground and I think you can fix it so I can have the 10 acers in lot 2 and make the payments from next year on. Please let me know.”
On July 23d the application blank was forwarded to Mr. Anderson, and under date of July 27th he acknowledged receipt of the blank in the following letter:
*9 “I received the application blank for the 10 acers in lot 2 and it is all right. It will make my ground complete. I will return it with $30.00 inside of 30 days and I trust that will be all satisfactory.”
Under date of August 11th, Mr. Anderson applied in his own name for a 10-acre tract substantially equivalent to the northeast quarter of lot 2 in section 36. This application was allowed by the state land board, and a similar contract of purchase was issued to Mr. Anderson. In transmitting the $30 required to make the first payment on this purchase, Mr. Anderson inquired of the clerk whether there were any applications for the purchase of lot 1 or the rest of lot 2 in section 36. He was advised that up to August 14, 1913, the board had received no such applications. The 50 acres so purchased included most of the land located as the Grand Prize claim, but did not include the 2 acres which is the property in dispute. Mr. Anderson made no further attempt to purchase the property in the portion of section 36 with which we are concerned in this case, but on October 16th he made an application to purchase from the state land board 48.73 acres of land lying north of lots 2, 3 and 4 in this section, and this application was also allowed by the state land board. We think it is significant that Mr. Anderson made no effort to purchase the northwest quarter of lot 2. There is evidence in the record, other than the foregoing correspondence, to the effect that Mr., Anderson had abandoned all idea of buying this land.
The evidence is very conflicting as to whether Mr. Anderson thought that his purchase from the state included all the land which he had staked off as included in the Grand Prize location. We do not find it necessary to determine this disputed question of fact. It appears that respondent E. Boswell came into the
“Q. Bight now go ahead with your statement about his advice to you with reference to the purchase.
“A. He advised me to purchase land adjoining him on the west, said it was a good buy, and that he had bought all he wanted, he told me that first he had bought 40 acres and found that he had bought short; that they measured there, him and Bill Akers or his son — I think it was Bill Akers, he said, measured with him, and found that 40 brought him just to his panning hole or about that, and that he had written the state land board and they had consented, and I think at that time his application was in for 10 acres more, and he said that 10 acres would be all of the land he wanted.”
Subsequent to the foregoing interview another interview took place, which is described by Mr. Boswell as follows:
“Q. Now in the meantime during the — from the time you had moved back to your old camp up to the 8th of September, did you have any talk or conversation with Mr. Anderson?
“A. I did. * * The evening of the 6th or 7th him and Uncle Dan Sutherland came over the trail from Holland and came by the camp, and Anderson advised me then if I was going to buy any of this land that I had better get busy and do it or I would get left. # *
‘‘■Q. Well, what steps did you take, if any, toward the purchase of any land?
“A. I told him, very well, I would, and he said we would better come down the next day, and he would help me; he had an application blank there, a blank one, and he would make a plat or help me make one of*11 the land that we both thought that I had better take, and that I had better go out and send it at once.
“Q. Now, Mr. Boswell, before this time did he say anything to you with reference to these lands as to their values for prospecting and mining purposes?
“A. Yes, sir.
“Q. What did he say about that?
“A. He said it was a good buy, and that he had struck it good there, and was going to make some money, and that some day him or somebody else, whoever he sold it to, would find the ledge above him that too is placer. It was his opinion and pretty near all mining men that that slough had come from quartz some place above, and when that was found, and that the land adjoining him, if nothing was ever found on it, would be worth some money, any way a few thousand dollars if they struck it rich on the claim.
“Q. Did you say that there was an application prepared at that time?
“A. Yes, sir. * *
“Q. Who prepared it?
“A. T. M. Anderson made a plat of the land we concluded I had better apply for, and the nest morning him and William Akers and myself went down to a neighbor’s about four miles below, and the neighbor filled out the application, and T. M. Anderson and Mr. • Akers witnessed it.
“Q. Well, do you say that the neighbor filled out the application; what do you mean by that — did the neighbor insert the description?
“A. Yes, sir, from the plat.
“Q. At whose direction?
“A. At T. M. Anderson and myself, at our directions.
“Q. Were you as familiar with the descriptions up there as Mr. Anderson was?
“A. No, sir.
“Q. State whether or not you relied upon the descriptions which he suggested to you.
“A. I did.
*12 “Q. And were those descriptions included in the application?
“A. Yes, sir.”
It appears that the application referred to in the foregoing testimony was amended by Mr. Boswell in order to meet the views of the state land board as to the property which it could properly sell him, and that finally, on November 21, 1913, he presented an application for the purchase of 57.05 acres of land including the northwest quarter of lot 2 in section 36, which covers the property in dispute in this case. This application was accepted, and a contract for the sale of this land was executed in favor of Mr. Boswell. Mr. Boswell’s further testimony in regard to the matter is as follows:
“Q. At whose suggestion did you make that application?
“A. T. M. Anderson’s.
“Q. State whether or not he gave you the descriptions to fill out that application.
“A. He did.
‘ ‘ Q. "What was it that he told you that induced you to apply for those particular lands?
“A. He told me that the land was for sale, and they was going to lose it as they wasn’t going to buy it from the state, he had understood that somebody would buy it, and I might as well have it, as somebody else.”
The foregoing testimony is corroborated by other witnesses, and can scarcely be said to be controverted. The name of T. M. Anderson appears on the first application presented by Mr. Boswell to the state land board under date September 8th. Mr. Anderson’s contention about the matter is that he entertained a mistaken view of the law, and was under a misapprehension as to the correct boundaries of the land which he had purchased from the state. We think that his
Mr. Boswell left the neighborhood on September 8th and did not return until December 27th. He testifies that he made a pocket compass survey of the property which he had purchased from the state, some time during the week intervening between Christmas and New Tear’s Day. In January, 1914, Mr. Boswell and his son, R. J. Boswell, began to work the property in dispute, and continued to work thereon during the months of January and February; during the first week of March they ran into a rich pocket of pay-dirt. During all of the time when the Boswells were working on the property in dispute, the work was in plain sight of the Grand Prize mine and in the immediate vicinity. Both T. M. Anderson and T. J. Anderson saw the work as it proceeded from day to day, and were well aware that the place where the Boswells were working was within the boundaries of the Grand Prize mine as staked out by them.
While there is some conflict in the testimony, the preponderance of the testimony is greatly to the effect that no objection was offered by anyone to the work which the Boswells were doing. A few days after Mr. Boswell had made his strike Mr. T. M. Anderson admitted in the presence of four witnesses that the strike was on Mr. Boswell’s property and expressed pleasure at Mr. Boswell’s good fortune. In the presence of these same four witnesses Mr. Anderson made an offer to buy the property from Mr. Boswell.
6. In view of the foregoing facts we have no hesitation in holding that appellant T. M. Anderson is
“Experience in the mining regions teaches that locations of mineral-bearing rock are frequently made on public land for speculative purposes only, and are often considered of little value until paying ore is discovered in the immediate vicinity, when, without any expense to the locators, they may become of immense worth. Such possible fluctuations in value demand a different rule from that which usually governs vested estates in land, and necessitates immediate assertion of inchoate rights in mining claims, when, by the exercise of reasonable diligence, the locators could have discovered that their premises were being invaded. Dyson, Standish and Frank and Fred Sharkey, who are experienced miners and should have known the location of the boundaries of the Louise and of the Lucky Boy No. 4 mining claims, ought to be estopped to assert that they*15 had any interest therein in conflict with the claim of Candiani as originally indicated on the ground. To allow them to assert an adverse claim to that part of the Doctor lode now in controversy, as it should be surveyed, would be violative of every principle of equity and result in rewarding them for encouraging the development of the property.”
The foregoing case does not stand alone, but is in harmony with a number of other decisions of this court. In Bloch v. Sammons, 37 Or. 600 (55 Pac. 438, 62 Pac. 290), it was held that a party who encourages another to buy at execution sale is estopped to dispute the title of such execution purchaser; the fact that the encouragement is given under a mistaken view of law does not relieve from the estoppel.
In Clark v. Hindman, 46 Or. 67, 75 (79 Pac. 56), the facts were as follows: Plaintiff’s father had conveyed to her certain property in Baker; he pointed out to her the line dividing the property conveyed from other property which he retained, and plaintiff, in reliance on these representations, built a house on the property supposed to be conveyed. It subsequently transpired that plaintiff’s house extended beyond the true boundaries of her land. Plaintiff’s father conveyed to the-defendant who sought to eject plaintiff from the premises on which she encroached. It appeared that the representations on which plaintiff had acted were made as the result of an honest mistake. The defendant was nevertheless held to be estopped. The court said:
“When a party, under a misapprehension of his legal rights, by word or act, places another party in an attitude of hostility to such rights, he must submit to the loss which his conduct has occasioned: Fahie v. Pressey, 2 Or. 23 (80 Am. Dec. 401). Hindman, in ignorance of his own title, evidently encouraged plaintiff in expending money to build her house, and, having done so,*16 lie and those claiming under him cannot subsequent thereto assert such title to her injury.”
To the same effect are Ashley v. Pick, 53 Or. 410, 417 (100 Pac. 1103) ; Bush v. Roberts, 57 Or. 169 (110 Pac. 790); La Forest v. Downer, 63 Or. 176 (126 Pac. 995).
“This agreement, made this 24th day of October, 1913, between, T. M. Anderson and Martha Anderson, his wife, T. J. Anderson and W. A. Akers, both unmarried, all of Holland, Oregon, parties of the first part, and Thomas Wilson of Manhattan, Nevada, and A. C. Stock of Eeno, Nevada, parties of the second part, witnesseth: The parties of the second part have elected to take a contract of sale of the property hereinafter described under their option of September 5, 1913, heretofore executed between the parties hereto, and to that end and in consideration of one dollar and other valuable consideration unto the first parties in hand paid by the second parties, the receipt whereof is hereby acknowledged, the first parties hereby covenant and agree to sell and convey unto the second parties on or before five years from November 1, 1913, for the purchase price of $100,000.00 all of the following described mining property, to wit: in moieties of two-thirds unto Thomas Wilson and one-third unto A. C. Stock. The Grand Prize mining claim, comprising 20 acres in gov-*18 eminent lot 4, 20 acres in government lot 3 and 10 acres in government lot 2, all being patented land in section 36, township 39 south, range 7 west of Willamette meridian. ’ ’
Then follows a description of a number of mining claims with which we are not concerned in this case. The agreement continues:
“Provided, however, that the second parties shall have the election of dividing said premises and taking a portion of the same only, viz.: The second parties may purchase within the period aforesaid all of the creek channel in lot 4 being that portion between the banks estimated at 10 acres, also, all of the Yale claims aforesaid; also all of the Grayback claims aforesaid; also an undivided one-half of all ditches, ditch rights and water rights from Cave and Lake creeks, for a purchase price of $1,100.00 [probably intended to be $10,000.00]; also all the other ditches and ditch rights and water rights above mentioned, payable in the same proportionate installments as is hereinafter set forth for the payment of the total purchase price; or the second parties may elect to take all of the remainder of the property first herein described for a purchase price of $90,000.00, payable in the same proportionate amounts and time as in case of the purchase of the whole property first herein described.”
The agreement then provides that the second parties should continue in possession and operation of the property, paying to the first parties 20 per cent of the net product of the mine during the year beginning November 1, 1913, and 25 per cent of such net product thereafter, providing however, that $50,000 should be paid within three years from November 1, 1913, and that the remaining $50,000 should be paid within 2 years thereafter. The agreement then provides:
“But should the second parties elect to segregate the property and take either portion thereof as aforesaid, at the price hereinbefore stated, then they shall during*19 the same period pay and render sneh sums as the purchase price for either of the properties so elected to be purchased bears to the whole purchase price.”
After a number of other provisions not material for present purposes, the contract contains the following clause:
“It is further agreed that the second parties may at any time elect to terminate this contract by surrendering the possession of said property, togetlier with all payments heretofore made as hereinbefore provided for. ’ ’
*20 “Boswell has opened np very rich pocket 30 feet from onr line, running into big dyke, quartz full of gold, taking out $100.00 per day, don’t tie up any of my personal stuff, write you full particulars Manhattan.”
On March 27th Mr. Wilson wired T. M. Anderson, as follows:
“Protect my verbal option through you with Dan, advise me fully, also see Boswell for me.”
Anderson replied to this telegram, as follows:
“Deceived your telegram, two men looking over Dan Sutherlands. Seen Boswell and he will hold.”
There is evidence in the record that T. M. Anderson made a second effort to buy the property in dispute from Boswell, although it does not clearly appear that his effort so to do was in compliance with the Wilson telegram. On the whole, we can see no reason for relieving Grand Prize Hydraulic Mines from the estoppel with which its vendor is chargeable.
Lead Opinion
delivered the opinion of the court.
The motion to dismiss the appeal is therefore denied. Motion Denied.
