170 F. 62 | 9th Cir. | 1909
Not being satisfied with our decision heretofore rendered in this case (161 F. 861, 89 C.C.A. 55), the petition for a rehearing of the cause was granted, and after a further consideration of the record we are convinced that the decision then made was erroneous. The theory upon which we then proceeded was that the evidence was sufficient to justify a finding of such a possession of the mining ground in question by the defendants in error, who were the plaintiffs below, as precluded the plaintiffs in error, who were defendants below, from entering upon it for the purpose of prospecting and making a valid mining location thereon. Some of the facts are stated in the opinion then delivered, but there are other facts shown by the record which were overlooked.
The plaintiffs in error, as well as the defendants in error, are eight in number, and made the location under which they respectively claim as an association claim of 160 acres of placer ground. The location of the defendants in error was prior in point of time, having been made on the 5th day of January, 1906; the ground then staked by them being 1,320
There was also testimony going to show that Cale returned to within one mile of-the Red Dog association claim on the 18th of March, with his tools and supplies, but, instead of going onto the ground and commencing work, stopped at the camp of the defendant in error Carroll, and from there went back to Fairbanks Creek, and did not return to the ground in dispute until the afternoon of the 21st of March, when he went to work in the shaft-or hole that had been commenced on the 14th of the month by Carroll and Dougherty; Cale testifying: “I immediately went to work, and remained working until the shaft was sunk to bedrock. I worked alone for a while, until I got the shaft down as far as I could get it and throw the dirt out. Then I went to work and timbered the shaft, and made a windlass and a few other things that were necessary to continue the work, and I then got Mr. Warren [being one of the defendants in error] to help along in finishing the shaft, sinking it to bed rock [and that in sinking the shaft he made a discovery of gold].”
This discovery of gold, however, was subsequent to the location which was made by the plaintiffs in error on the 16th day of March, 1906, of a claim called “Try Again Association Claim,” which location included a part of the ground covered by the Red Dog association claim. The plaintiffs in error so marked the boundaries of the Try Again association claim as that they could be readily traced upon the ground, and commenced sinking a shaft upon that portion of it which overlapped the Red Dog association claim of the defendants in error, and continuously prosecuted their work until they made a discovery of gold thereon on the 15th day of April, 1906, up to which time the defendants in error had not made any discovery of mineral within the boundaries of the Red Dog association claim.
Since the statute of the United States requires, as one of the essential, conditions to the making of a valid location of unappropriated public land of the United States under the mining laws, a discovery of mineral within the limits of the claim (Rev.St. §§ 2320, 2329 [30 U.S.C.A. §§ 23,
These views are, we think, well sustained by numerous decisions of the Supreme Court, of this court, and various other courts, some of which we cite. Del Monte Mining & Milling Company v. Last Chance Mining & Milling Company, 171 U.S. 55, 18 S.Ct. 895, 43 L.Ed. 72; Jennison v. Kirk, 98 U.S. 453, 25 L.Ed. 240; Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735; King v. Amy & Silversmith M. Co., 152 U.S. 222, 14 S.Ct. 510, 38 L.Ed. 419; Creede v. Uintah M. Co., 196 U.S. 337, 25 S.Ct. 266, 49 L.Ed. 501; Cook v. Klonos (C.C.A.) 164 F. 529; Johanson v. White, 160 F. 901, 88 C.C.A. 83; Malone v. Jackson, 137 F. 878, 70 C.C.A. 216; Nevada Sierra Oil Co. v. Home Oil Co. (C.C.) 98 F. 673; Olive Land & Development Co.
It is pertinent to add that the Land Department of the government has recently decided that it would not recognize any such shoestring location as conforming to the provisions of the United States statutes upon the subject. See Snow Flake Fraction Placer, 37 Land Dec.Dep.Int. 250 (decided November, 1908), where it was said: “It is the policy of the government to have entries, whether they be of agricultural or mineral lands, in compact form. Congress has repeatedly announced this principle, and the department has always and does now insist upon it. The public domain must not be cut into long and narrow strips. No 'shoestring’ claims should ever receive the sanction of this department.”
It results that the judgment must be, and hereby is, reversed, and the cause remanded to the court below.