29 Mont. 1 | Mont. | 1903
delivered'the opinion of the court.
This action was brought under Section 1310 of the Code of Civil Procedure to determine an adverse claim to the Silver Star quartz lode mining claim, situate in Deer Lodge county. The complaint, alleging ownership' and right of possession in plaintiff, and that defendants assert some estate or interest therein adverse to plaintiff, prays that defendants: be required to discover the nature of their claim, and that it be declared without foundation. The answer traverses the material allegations of the complaint, and them, sets forth the facts upon which the defendants predicate their claim. The pleading discloses that they claim the ground covered by the Silver Star quartz lode mining claim by virtue of a location thereof under the name of the Venus quartz lode claim. To the answer there was reply. At the trial the plaintiff introduced iu evidence, over objection of defendants, the record of a notice of location of the Silver Star lode claim, dated January 2, 1896, together with oral evidence tending to- show a discovery of mineral deposits within the surface boundaries of the described ground, and the acts done in order to perfect his location, and then rested
The defendants assign as error the action of the court in admitting the notice of location in evidence over their objection, and in directing a verdict for the plaintiff.
The notice omits altogether a description of the discovery shaft, the only reference to- it being a statement that the claim extends along the vein or lode “1,000 feet in a southerly direction, and 500 feet in a northerly direction from the center of the discovery shaft,” and a similar statement in the attempted description of the comers. The description of the comers, with the markings thereon, so far as any is given, is as follows: “This location is distinctly marked on the ground, so that its boundaries can readily be traced, by a-- set at discovery shaft (where this notice and statement is posted this- - day of ■ — —■, A. D. 189 — ), and by substantial posts or monuments of stone at each corner of the claim and the exterior boundaries of tire claim, as marked by said ppsts o^monuments are as follows, to-wit: Beginning at southwest comer post and running in a northerly direction 1,500 feet to a post, thence in an easterly direction 600 feet to- a post, thence in a southerly direction 1,500 feet to a post, thence in a westerly direction 600 feet to-a post and place of beginning.”
The objection to the introduction of the notice in evidence should have been sustained. It attempts noi description whatever of the shaft, even conceding that such a shaft as is required
The plaintiff insists, however, that, inasmuch as evidence introduced in connection with the notice of location discloses that ■all tbe necessary stepsi to make a valid location were in fact taken by the plaintiff, including a posting of a copy of the ref-corded notice at the discovery shaft, these facts entitle the plaintiff to- a judgment, in the absence of a showing on the part of the defend-amts that they had actually entered upon tbe ground and made1 a Valid location thereof under tbe laws of tbe United States, and the statute of Montana. With .this, contention we do not agree. Assuming, for the purposes of this action, that one may maintain an action under tbe statute upon his possession alone, it is not shown by the evidence, nor is it claimed by the plaintiff, that at the commencement! of this, action he was. in the possession of the ground in controversy, nor that he had ever been ousted from the possession thereof by the defendants-; nor does it appear that he ever at anyi time had actual possession of the ground by inclosure or otherwise, except to do the annual labor of representation. At noi time, did such ppssession con
Let the judgment and order be reversed, and the cause remanded.
Reversed mid remanded.