Hauswirth v. Butcher

4 Mont. 299 | Mont. | 1882

Wade, C. J.

This appeal, among other things, calls in question the validity of a mining claim location under the act of congress of May 10, 1872. The respondents claim title and right of possession to the ground in dispute by virtue of their location of the Triumph lode mining claim, which location, the appellants contend, is void, for the reason that the testimony disclosed the fact that the Triumph location is two thousand feet in length on the southern boundary line, and therefore not authorized by the act aforesaid.

The act of congress provides: “A mining claim, located after the passage of this act, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode.” . . . “ The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim.” Such a location on the public mineral lands of the United States carries with it a grant from the government to the person making the same, and confers upon such a person the right to the exclusive possession and enjoyment of all the surface ground within the lines of such location. In order to make this grant effectual, the location must be distinctly marked on the ground, so that its boundaries can he readily traced, and the record of the location must contain such a description of the claim as will identify it by reference to some natural object or permanent monument. Such reference is as necessary as that the record should contain the date of the location and the name of the person making the same. Both requirements are for the purpose of notice. Neither a grant or the right of possession attach to a location that does not give the notice required. As was said in the case of Belk v. Meagher et al. 3 Mont. 80, there is no grant from the government under the act of congress, unless there is a location according to law. Such a location is a condition precedent to the grant. And in the same case, in the supreme court of the United States, it is held: “ That the right of location upon the mineral lands of the United States is a privilege granted by congress, but can only be exercised within the limits prescribed by the grant. The right to possession comes only from a valid location. Consequently, if there is no location, there can be no possession under it. Location does not necessarily follow from possession, but possession from location.”

Before there can be a valid location there must be a discovery. Taking the discovery as the initial point, the boundaries must be so definite and certain as that they can he readily traced, and they must be within the limits authorized by law. Otherwise their purpose and object would he defeated. The area bounded by a location must be within the limits of the grant. No one would be required to look outside of such limits for the boundaries of a location. Boundaries beyond the maximum extent of a location would not impart notice, and would be equivalent to no boundaries at all. A discovery entitles the person making the same to a mining claim, embracing the discovery, not to exceed one thousand five hundred feet in length by six hundred in width. Within these limits, if the' boundaries are properly marked on the ground, and the1 location properly made and recorded, the grant of the government attaches, and third persons must take notice. But they would not be required to- look for stakes' or boundaries outside of, or beyond,' the utmost limits of location as authorized by the statute.

As to the length of a mining claim, there must be a substantial compliance with the law, as there must in all other respects pertaining-to the location. The claim in question, as shown by the stakes and boundaries thereof, is' two thousand feet in length, whereas the greatest length, as authorized by law, is fifteen hundred feet. If such a location could be sustained to the extent of fifteen hundred feet, where the rights of third persons had not intervened, which we do not decide, certainly, if such rights had attached, such a location would not protect five hundred feet in length of claim more than the law authorizes by virtue of one discovery. A fifteen hundred feet claim cannot be shifted from one end to the other of a, two thousand feet claim, as circumstances might require, to cover the discovery of a third person within such two thousand feet location.

“The object of the law in requiring the location to be marked upon the ground is to fix the claim, to prevent floating or swinging, so that those who, in good faith, are looking for unoccupied ground in the vicinity of previous locations-, may be enabled to ascertain exactly what has been appropriated, in order to make their locations upon the residue. The provisions of the law designed for the attainment of this object are most important and beneficent,, and they ought not to be frittered away by construction.” Gleason v. Martin White M. Co. 13 Nev. 462.

“ The locator should make his location so certain that the miners who follow him may know the extent of his, claim, and be able to locate the unoccupied ground without fear that, when they have found a paying mine, the theretofore indefinite lines of some prior location may be made to embrace it.” Mt. Diablo M. & M. Co. v. Callison, 5 Saw. 449.

There is one other consideration. The complaint alleges entry and ouster by the defendants as to the ground in dispute, and charges that possession thereof is held by the defendants. The replication avers that the plaintiffs are, and for a long time have been, in possession of the premises. If the replication is true, the complaint is false. If the complaint is true, the replication is untrue. They flatly contradict each other. If the averments of the complaint state a cause of action, the replication, if true, entirely defeats such action. Testimony that would support the replication would destroy the complaint and the plaintiffs’ cause of action. The pleadings ought to support the judgment and be consistent with each other.

The affidavit to the Triumph location states that the foregoing notice is a similar copy of the original notice of location of the claim as posted thereon the day therein stated. In view of the fact that most of the locations in Silver Bow and Deer Lodge counties are authenticated by similar affidavits, and that to decide that such is insufficient would disturb many titles, we hold the same good,— “ Communis error facit jus.”

The judgment is reversed and the cause remanded for a new trial.

Judgment reversed.