135 P. 906 | Mont. | 1913
delivered the opinion of the court.
Action by appellants to quiet title to a portion of the East Brooklyn lode, Granite county, Montana, which is in apparent-conflict with a prior location of the Speculator lode, claimed by respondents. The trial was to the court, Honorable Geo. B. Winston presiding without a jury, and he made findings of fact and conclusions of law in favor of appellants. Thereafter respondents, having filed their notice of intention to move for a new trial and having caused their bill of exceptions to be signed and settled by Judge Winston, filed an affidavit disqualifying him from further proceeding with the motion. Thereupon the Honorable J. Miller Smith, of the first judicial district, was called in to hear and determine the motion, and the same, having been submitted to him, was granted. From the order granting respondents’ motion for new trial, this appeal is taken.
Much space is given in the briefs to a discussion of the question
The contention of appellants is: (1) That the markings of the Speculator as now claimed by the respondents are not the same as originally made upon the ground, and therefore the
respondents; the single line representing the Speculator as originally marked upon the ground, according to appellants;
As to whether the Speculator was ever marked upon the ground in the manner asserted by appellants (shown by the single line), there is a sharp conflict in the evidence, but no good purpose would be served by reciting the testimony at length, for the reason that the trial court did not specifically find upon the subject. The finding, so far as it touched upon the asserted claims of respondents, is that they “never have been and are not now the owners of the alleged Speculator quartz lode mining claim # * * and are not and have not been at any time the owners of the area in conflict between the said East Brooklyn quartz lode mining claim and the said alleged Speculator quartz lode mining claim.” As we read this finding, it proceeds upon the theory that the location of the Speculator was void and is inconsistent with a valid claim subsequently lost by abandonment.
Whether the location of the Speculator was void must be determined by the only criterion upon which it is assailed, viz., a fatal divergence between the declaratory statement as filed and the markings of the claim upon the ground. The statute in force when the Speculator location was made (section 3612,
Recurring, then, to the declaratory statement of the Speculator, we observe that it calls for a tract- of ground 1,500x600
While the sufficiency of the description is essentially a question of fact for the jury or for the court sitting without a jury (Bramlett v. Flick, supra), and while no stress is or can be laid upon the mere departure of the lines from the cardinal directions, since the tract is northerly and southerly, yet the description given in the declaratory statement does suggest that the claim is a rectangle, and hence that one starting from the point of discovery and finding the northern corners might, by proceeding at right angles to the northern line, follow the other lines and pick up the other corners. As a matter of fact, if he did so proceed he would miss the southeast comer by over 500 feet and the southwest corner by over 800 feet. Furthermore, the record discloses that the southerly portion of the claim lies in timber through which the lines were not ‘ ‘ swamped ’1; that the south line is over 100 feet farther from the point of discovery and over 432 feet shorter than called for; and that the claim as laid out in nowise resembles what the declaratory statement suggests. In view of all this it is a rational inference that some difficulty might be expected in any attempt to find the lines and corners with the aid of the declaratory statement, and the record shows that as a matter of fact difficulty was met, and doubt may be entertained as to whether it was wholly surmounted even with the aid of the locator who placed
Respondents place much reliance upon Bramlett v. Flick, supra, wherein a claim which departed somewhat as to directions and distances from those given in the declaratory statement was sustained. But the departures in that case were neither so many nor so great as are here presented. The directions in the Bramlett notice, if followed with reasonable intelligence, could not mislead, and the jury found as a matter of fact that they were sufficiently clear and definite. But no one, unless told, would suppose the Speculator as marked and the Speculator as described to be one and the same.
The conclusion of the trial court that the Speculator had never