16 Mont. 211 | Mont. | 1895
As to the construction of the words “resuming work,” as found in section 2324, Bev. St. U. S., we will not again review the decisions. We are satisfied with the con
In the case at bar forfeiture for nonrepresentation in 1890 is conceded. The question remains whether, when the relocation was made by defendant (January 30, 1891), plaintiffs had resumed work iu good faith, and prosecuted the same with reasonable diligence to or towards the accomplishment of $100 worth of labor performed or improvements made.
Two contentions are made by plaintiffs : First, that they had actually accomplished $100 worth of labor or improvements before the relocation; second, that, if the $100 worth of labor or improvements was not completed, they were at least advancing towards such completion with due diligence when the relocation was made. We will take these propositions in. their order.
1. Plaintiffs introduced testimony that two men, Langan and Walsh, for them, resumed work on the night of December 31, 1890, and worked until morning. Commencing again January 2d, these men performed six consecutive days of labor. This aggregated seven days for two men, or fourteen days of labor, which at $3.50 per day (the ordinary miner’s wages), and with a little extra compensation for the nightwork on the 1st of January, footed up a total of $25 for each man, which was paid to them, and which was a reasonable compensation. A miner by the name of Huggins, employed by the other owner in the Rose Cleveland, it appeared, worked ten days in January before the relocation. This, at $3.50 a day, would equal $35. There was also evidence by plaintiffs tending to show that three men (McDonald, Baatz and Dulah) worked a day each in December, 1890, at $3 per day, which would be $9. At plaintiffs’ estimate of this labor, they would
It is sufficient to state that plaintiffs were obliged to push the value of their labor and improvements to the very extreme to reach the $100 mark. They barely reached that mark, if at all, under the best view of their own testimony. On the other hand, the defendant called a number of experienced miners, who had examined the results of the labor alleged to have been performed by plaintiffs in resuming work. They testified as to the reasonable expense of making the excavations which they had examined, and as to which plaintiffs’ witnesses had testified. They testified as to how long it would take to do such work. Their testimony cut down the value of plaintiffs’ labor to a point from $14 to $36 less than plaintiffs estimated it. The jury found that $100 worth of labor or improvements had not been made before the relocation, and that the value was only $75. We think that under these circumstances, when the plaintiffs were straining every point in their testimony to reach an estimate of $100, and when it was doubtful that they had reached such figure, even in the best view of their own testimony, and when defendant’s testimony reduced the value far below $100, the finding of the jury that the value was $75 should not be disturbed.
The plaintiffs offered testimony as to the expense of sharpening some picks, which it was claimed Huggins used in prosecuting the work upon the claim. This evidence was excluded by the court, and error therein is assigned. It may be that there are circumstances that would justify charging the expense of sharpening picks as part of the costs of representation. We are quite sure that there are other circumstances where such expense could not be allowed as part of the representation work. But in this case we do not think we need in
2. We now come to the second contention of appellants. They claim that, if they had not completed the $100 worth of labor or improvements, they did show that they were prosecuting such labor with due diligence towards the completion of said $100 worth of labor when the relocation was made by defendant. But the jury found, and, as we think, was sustained by the evidence, that the plaintiff had ceased all work upon the claim for 15 days before relocation. It does not appear that they were obliged to cease labor by the inclemency of the weather, or the rigor of the season of the year, or for any other reason. They had been performing such labor up to the middle of January,' and no reason appears why they could not have continued such labor for the last half of January, as well as during the first half. But the contention of plaintiffs is that they were continuing labor in good faith and with due diligence, because they took steps towards the letting of a contract for the performance of $500 worth of work for the purpose of obtaining a patent. The plaintiffs offered to show that when Huggins quit work, about the 11th of January, they
The judgment of the district court and the order denying a new trial are affirmed.
Affirmed.