33 Mont. 46 | Mont. | 1905
Lead Opinion
delivered the opinion of the court.
The plaintiffs in this action assert their ownership in, and right of possession to, an undivided thirty-one' thirty-sixths interest in the Nipper lode mining claim. They allege that there is in said claim a vein bearing copper and other minerals, which vein extends lengthwise of said claim, substantially parallel with the side lines and through the end lines of said claim, which end lines are parallel; that said vein so far departs from a perpendicular in its descent into the earth that it extends beyond the south side line of the Nipper claim and into the Oden claim, owned by the defendant Washoe Company, and also into the Anaconda and Neversweat claims, owned by the defendant Anaconda company; and that these defendants have entered upon and have mined and extracted ores from said Nipper vein. The prayer of the complaint is that the defendants be required to set forth their respective claims, that the title of plaintiffs to the ores in said vein be quieted, and for an injunction pendente lite, and that upon final determination a decree be entered, among other things, enjoining
The answer of defendant Washoe company admits many of the allegations of the complaint, and alleges that the vein in the Nipper claim, called by the plaintiffs the Nipper vein, extends in a northwesterly and southeasterly direction across said Nipper claim, intersecting its side lines. It avers its ownership to the Oden claim, and that it is entitled to the possession of all the veins and ore deposits lying within the vertical boundaries of said Oden claim.
The answer of the defendant Anaconda company asserts its ownership to the Anaconda and Neversweat claims; admits many of the allegations of the complaint, but denies any knowledge or information sufficient to form a belief as to whether or not there is within the Nipper claim any vein extending lengthwise of said claim, or intersecting either of its end lines; and denies that the plaintiffs are the owners of or entitled to any mineral in any vein, lead, or lode within the vertical planes or boundaries of either the Anaconda or Neversweat claims.
The affirmative allegations of these answers are put in issue by replications. Defendant Washoe company asked leave of court to make an amendment to its answer by adding thereto a counterclaim in the nature of a complaint in ejectment. This application was denied. Defendants also moved the court for a trial by jury, but this motion was overruled. Other proceedings were taken, which it is not necessary now to consider. The cause was tried to the court without a jury, and findings of fact and conclusions of law were made, and a decree entered in favor of the plaintiffs, from which decree and an order denying their motion for a new trial the defendants appealed.
1. Right of trial by jury. This ease is not distinguishable in its character from the case of Montana Ore Pur. Co. v. Boston & Montana Con. C. & S. Min. Co., 27 Mont. 288, 70 Pac. 1114; s. c. 27 Mont. 536, 71 Pac. 1005, known as the “Pennsylvania
2. The power of this court to consider the evidence. It is contended by respondents that this court may not review the evidence to determine whether or not it supports the findings and decree, for the reasons (1) that the order of the court denying the motion for a new trial is not specified as error in appellant’s brief; and (2) that the record does not contain all the evidence.
Whatever may be the rule in other jurisdictions, where the specifications of error relied upon are required to be contained in the petition in error, the rule that the order of the court denying the motion for a new trial must be assigned as error does not prevail in this jurisdiction. Our statute (Section 1171, Code of Civil Procedure) specifies the grounds upon which a motion for a new trial may be made. Of course, the statement which is presented to the lower court could not assign as error a ruling of that court not then made, and it could only be presented to this court by way of an assignment in the appellants’ brief. But there is no reason whatever for this in this state, where an appeal lies directly'from the order of the court denying a motion for a new trial. If the' defendant in the court below has interposed a general demurrer to the complaint, and has stood upon his demurrer and suffered judgment to go against him, on appeal to this court an assignment that the court erred in overruling his demurrer will be considered by this court, and if found to be well taken, the judgment will be set aside. Likewise, if it be found that the evidence does not support the decision, or if in the course of the trial the court has committed errors prejudicial to the appellant, and those errors have been properly saved and presented to this court, they will be considered, and the order of the lower court set aside, and a new trial directed.
In the first place, the statute does not contemplate that ore samples shall be brought to this court for examination. They may be brought here as original exhibits under the rules of this court, but there is no requirement that they shall be. Furthermore, the statute (Section 1173, Code of Civil Procedure) does not contemplate that the record shall contain all the evidence which may have been introduced im the court below. On the contrary, it provides: “It is the duty of the judge or referee in. settling the statement to strike out of' it all redundant and useless matter, and to make the statement truly represent the case, notwithstanding the assent of the parties to such redundant and useless matter, or to any inaccurate statement.” At least one of the exhibits which respondents contend is not before the court is in fact found in the record before us. In the absence of any showing that the other exhibits omitted are material to a consideration of this appeal, the certificate of the presiding judge "will be accepted as importing verity, and the statement considered as containing all of the matter necessary to make it truly represent the case; and when this court has heretofore said that the record must show that it embraces all the evidence, the phrase “all the evidence” was used in the sense meant by the statute, viz., all the evidence necessary to make the statement truly represent the ease.
3. Cross-examination of the witness Steward. As one of their witnesses, plaintiffs called John M. Steward, one of the original locators of the Nipper claim, and upon his direct examination asked him to identify the Nipper declaratory statement and the plat of that claim used in the Land Department upon application for patent. He was asked if he had anything to do with the making of the location of the Nipper claim, when it was located, whether there was any discovery of a vein made upon
"When it is considered that the actual controversy, as shown by the pleadings, so far as the Washoe company is concerned, and by the testimony, so far as the Anaconda company is concerned, was as to whether the Nipper discovery vein extends lengthwise of the Nipper claim, intersecting its end lines, as contended by plaintiffs, and as represented in the annexed Diagram No. 2, as the “Nipper Apex Vein,” or whether it extends diagonally across the Nipper claim through both of its side lines, as claimed by the defendants, and as represented on Diagram No. 2 by the “Blue X Fissure,” it is difficult to understand upon what possible theory the court proceeded in its ruling. The statement of the witness Steward on his direct examination that the locators — himself one of the number — had
4. In its fourth finding of fact the court declares that the location of the Nipper was prior to the location of either the Oden or Neversweat claims. We have searched the voluminous record in this case in vain for any reference whatever to the date of the location of the Neversweat claim, and are unable to find any testimony upon which this finding could have been based, so far as it affects the Neversweat claim, and counsel for plaintiffs have wholly failed to point out any reference to this matter in the record.
The same finding also declares that the patent for the Nipper claim was issued prior to the patents for either the Oden or Neversweat claims, and this finding is even more remarkable, for not only is there no evidence whatever as to when the patent to the Neversweat claim was issued, but the patent to the Oden claim, which is in evidence, shows upon its face that it was issued in January, 1886, while the patént to the Nipper claim, also in evidence, shows that it was not issued until June, 1886. So that this finding is not only unsupported by the evidence, but is made directly in the face of the evidence to the contrary, and evidence conclusive upon- the court upon that subject.
Upon the offer of this statement in evidence, defendants objected upon the ground that the same was void, for the reason that it was not verified as required by the laws of the territory of Montana in force at the date of filing of such statement. This objection was overruled, and exception saved. The verification to the Nipper declaratory statement is as follows: “John M. Steward and R. L. Liles, who being first duly sworn, on cath says each for himself that he is of lawful age, a citizen of the United States, and that the foregoing notice by them subscribed is a true copy of the original notice of location of the claim above described as posted thereon, on the day therein stated.” The statute in force when this statement was presented for record provided: “Any person or persons who shall hereafter discover any mining claim upon any vein or lode, bearing gold, silver, cinnabar, lead, tin, copper, or other valu
The federal statute under which this claim was sought to be located (Section 2324, Rev. Stats. [U. S. Comp. Stats. 1901, p. 1426]) does not require that the notice or declaratory statement shall be verified. In fact, it does not require that any notice or declaratory statement .shall be filed for record at all, but merely provides that, if recorded, such notice or statement shall contain statements of certain facts. It has been suggested by certain text-writers upon Mining Law that the Montana statute ■was unconstitutional, in making this requirement; but we deem this question finally determined in favor of the validity of such statutes by the decision of this court in Baker v. Butte City Water Co., 28 Mont. 222, 104 Am. St. Rep. 683, 72 Pac. 617, affirmed on appeal to the supreme court of the United States in Butte City Water Co. v. Baker, 196 U. S. 119, 25 Sup. Ct. 211, 49 L. Ed. 409.
Assuming, then, as we may rightly do, that the statute was constitutional, the invalidity of the Nipper declaratory statement becomes apparent. This question has been determined so often by this court that it cannot now be deemed open for further controversy. (McCowan v. Maclay, 16 Mont. 234, 40 Pac. 602; Metcalf et al. v. Prescott et al., 10 Mont. 283, 25 Pac. 1037; O’Donnell v. Glenn; 9 Mont. 452, 23 Pac. 1018, 8 L. R. A. 629; s. c., 8 Mont. 248, 19 Pac. 302.)
Of the doctrine of relation it has been said by courts and text-writers that the proceedings in the Land Department leading up to and including the issuance of patent amount to an adjudication that all requirements of the law have been met. and the patent, when issued, relates back to the date of location. What is meant by “date of location” is not.so easily determined. In this state, at least, “the law contemplates that the location
- The acts which, taken together, amount to a location, begin with the discovery and terminate with the filing for record of the declaratory statement; and, as the location is not complete until such declaratory statement is filed, the date of its filing must of necessity be the date 'to which the patent relates. If, then, in this instance the Nipper declaratory statement was invalid, one of the essentials of a legal location was wanting, and a location, within the meaning of our law, was not effected, and there was not any date to which the Nipper patent could relate —at least, no date antecedent to the application for patent, which was the first intimation the government had that an attempt had been made to locate this claim.
But it is contended that the issuing of the patent Was itself conclusive that the declaratory statement, notwithstanding its patent invalidity, was in fact valid, and authorities may be found to uphold this contention. Indeed, there are expressions in our own early decisions apparently sustaining this view. In Lindley on Mines, section 742, the doctrine is announced that m eases of mining patents the issuance of the patent is in effect an adjudication of all questions respecting matters which might have been the subject of an adverse claim, or, in other words, where there is any surface conflict whatever, and there is a failure to adverse, after patent has issued to the applicant, the question of priority of his title is conclusively presumed. (Empire State-Idaho Min. & D. Co. v. Bunker Hill & Sullivan Min. & C. Co., 114 Fed. 420, 52 C. C. A. 222.) But as we have here
The reason for adopting the rule of relation is apparent. For when the location is made in conformity with the provisions of the federal statutes, and in compliance with the state laws and local mining rifles and regulations, it has the effect of withdrawing from the public domain the particular claim, and gives to the locator the right to the exclusive possession so long as he complies with the law. “The location, to be effectual, must be good at the time it is made. When perfected it has the effect of a grant by the United States of the right of present and exclusive possession.” (Belk v. Meagher, supra.) And when the right thus initiated is further evidenced by patent, it is reasonable to relate the patent to the initiation, and protect the patentee against intervening rights. But if the locator did not proceed according to law, he did not initiate any right to which the patent could relate. Of course, the government, being the owner of the claim, may issue patent therefor upon such showing as Congress may see fit to exact. But Congress has not attempted to make such patent, when issued, retroactive in its effect, or relate back to any prior point of time, if, indeed, it might do so.
The doctrine of relation is a fiction of law, and whether a patent relates to the date of location is to be determined by the
As indicating the liberality of the government in this regard, reference need only be had to the provisions of section 2332 of the United States Eevised Statutes (U. S. Comp. Stats. 1901, p. 1433), under which it is not even necessary for the applicant for patent to show the initiation of his right at all, but merely possession and continuous working of the claim for a period equal to the statute of limitations of the state in which the claim is situated are sufficient, in the absence of an adverse claim, to entitle him to patent. If it be contended that the doctrine of relation applies to every patent, it is pertinent to inquire, to what date would a patent issued under the provisions of section 2332 above relate?
We are satisfied that the patent is not conclusive of the fact that a declaratory statement in due form of law was filed for record. In our judgment, when a patentee seeks to show that his title is older than the evidence of his title indicates— when he seeks to show that, notwithstanding the date of his patent or receiver’s final receipt, his title in fact relates back to the date of his location, he must show affirmatively a location valid under the laws of the state where the claim is situated.
6. The court, by finding No. 9 and the decree, awards to the plaintiffs extralateral rights upon the Nipper vein between a plane drawn parallel with the east end line of the Nipper claim, passing through the northwest corner of the Oden claim at point A on Diagram No. 3, and a plane drawn through the west end line of the Anaconda claim, and extended south to an intersection with the south side line of the Anaconda. As the west end line of the Anaconda and the east end line of the Nipper are not parallel (if the maps used upon the trial are correct), it is difficult to understand upon what theory plane
Furthermore, finding No. 9 and the decree also award to the plaintiffs extralateral rights upon the north prong of the Nipper vein between plane No. 1, passing through the point A, and a plane drawn parallel with the east end line of the Nipper, cutting the north side line of the Anaconda at point B, and extended to an intersection with said north prong; and upon the theory adopted by the court, we think this is correct. But the court, in its award to the Nipper claim of extralateral rights, then proceeds further as follows: “And also all the ex
In our consideration of this appeal we have refrained from considering the question of the sufficiency of the evidence to support the findings or decree, except so far as the contrary appears, but have proceeded upon the assumption that the findings are supported by the evidence. We have considered the other errors assigned, but deem them without merit.
For the reasons herein given, the judgment and order overruling defendants’ motion for a new trial are reversed, and the cause remanded for a new trial.
Eeversed and remanded.
Concurrence Opinion
I concur in the result. I am in doubt, however, as to the time to which the title by patent relates — whether to the date of the completed location, or to the date of discovery. I am inclined to think it relates to the latter. As a decision of this point is not necessary, I refrain from expressing an opinion.