244 P. 571 | Wash. | 1926
The parties to this action are rival claimants to the possessory right of certain mining claims in the May Creek mining district in Snohomish county in this state. The plaintiff claims through location *334 notices posted and filed some years prior to July 1, 1924. The defendants claim under location notices posted on that day and filed on July 7, 1924, and the amended notices filed on September 10, 1924, and that the plaintiff failed to perform labor on the claims as required by law for the year ending July 1, 1924. The trial was to the court without a jury and resulted in findings of fact, conclusions of law and a judgment sustaining the position of the defendants. From this judgment the plaintiff appeals.
[1] The first question is whether labor had been performed or improvements made upon the claims during the year prior to July 1, 1924, as required by § 2324, Rev. Stat. U.S. (2d ed.). During that year, the appellant testator, who will be referred to as though he was the appellant, employed a consulting engineer to go to the district for the purpose of locating a road over which the ore from the claims might be hauled to a shipping point. This engineer, during that year, made three trips and looked over three possible routes. On none of these trips did he make a survey, but made observations and field notes, and, as he testified, had determined in his own mind the best route for the road to remove the ore from the mine. During that year, no physical work was done in preparing the road or upon the mining claims. The question then is whether this can be said to be labor performed upon the claims as required by the above mentioned statute.
Snyder on Mines, p. 471, states the rule to be "that the test in all cases which should be applied to annual labor is whether the work or improvements tend to develop the claim, and facilitate the extraction of the mineral and valuable contents therefrom."
In Bishop v. Baisley,
"It is to be noted that what was done was to buy an old gristmill, located some 6 or 7 miles away from the claim. It was out of repair, and bore no relation whatever to the mine, and never had. Appellant claimed that it intended to reconstruct the plant, manufacture electrical energy, and convey the same to the mine, and there use the same in mining operations, but that it was unable to do so on account of the conditions arising out of the war legislation. The plant was never reconstructed; no electrical current was ever generated; no wires were ever strung; nothing whatever was done. It would seem clear that the purchase of the old plant was not annual expenditure on the mine. We have recently examined this question in Golden Giant Mining Co. v.Hill,
In Du Prat v. James,
"Plaintiff insists that he performed the work required, and therefore did not forfeit his right to hold the ground. The court found that he performed in the year 1880 three days' labor, of the value of three dollars per day, and no more. The plaintiff claims that the court erred in excluding from its conclusion as to labor performed on the claim his time and expenses spent and incurred as follows: In October, 1879, plaintiff leased a mill located about a quarter of a mile from his claim, and from that time until December 25th made unsuccessful efforts to obtain water to operate the mill. About the latter part of December, 1879, or the first of January, 1880, the company owning a ditch let sufficient water run to the mill for the use of plaintiff, but he did not use or attempt to use the same, nor crush or attempt to crush rock or ore. Plaintiff went from Groveland to Sonora, in said county, twice, from Groveland to San Francisco once, and from Oakland to San Francisco five or six times to see the agent of the water company for the purpose of getting water to operate the mill. His personal expenses incurred, and the value of his time on those occasions, were from one hundred and fifty to four hundred dollars. We think that in no sense can these expenditures and values be said to be labor performed on the mine."
Reference will now be made to a few of the cases cited by the appellant on this question, which appear to be most nearly in point.
In Capron v. Strout,
"According to the findings, he certainly did work in the mine, though not with his hands, and it is clear that the direct tendency of his work was to develop the property. We think the foreman of work in the mine is as fully secured by the law as the miners who work under his direction."
In Gould v. McCormick,
In Florence-Rae Copper Co. v. Kimbel,
[2] The next question is whether the relocation notices were sufficient.
Section 8623, Rem. Comp. Stat., states the requirements for an original location notice, among which is the posting at discovery a notice, specifying what it shall contain. Section 8622 provides that, within ninety days from the date of discovery, a notice containing the matters there required shall be recorded in the office of the auditor of the county in which the claim is found. Section 8622 provides for the filing of an amended certificate of location. Section 8629 provides, among other things, that a relocation shall be made in the same manner and to the same extent as is required in making a new location.
The question here is, whether the amended notice filed on September 10, 1924, and within ninety days after the relocation notice was posted, is sufficient to hold the property. It is argued that, since the present action had been begun prior to the time the amended notice was filed, that it came too late. It was, as stated, filed within the ninety days, and it does not seem that the beginning of the action could deprive the relocator of a right to file an amended notice within that time. In the cases ofJohns v. Phoenix Nat. Bank,
"From the foregoing view of the purpose and functions of a location certificate, original and additional, it does not appear that the admissibility in evidence of such additional certificate is affected by the circumstance that it was filed subsequent to the commencement of the suit, since it is not evidence of any after-acquired right or interest, but merely evidence relating to a right of possession which must have been acquired prior to the filing of such certificate, and prior to the acquisition of any intervening right of the controverting party."
[3] It is further claimed that the amended certificates do not satisfy § 8629, Rem. Comp. Stat., which requires that said certificates shall state if the whole or any part of the property is "located as abandoned property." The amended certificates recite, "This property is forfeited and abandoned property, former owner A.F. Kirkpatrick." It seems to us that this meets the requirement of the statute.
The case of Knutson v. Fredlund,
It follows that, since the annual labor required had not been performed prior to July 1, 1924, and since the attempted relocations met the requirements of the law, it must be held that the relocators have the superior right.
The judgment will be affirmed.
TOLMAN, C.J., MITCHELL, MACKINTOSH, and PARKER, JJ., concur. *340