38 Colo. 480 | Colo. | 1906
delivered tlie opinion of tbe court:'
Tbe subject-matter of controversy in this case is the conflict between the Henry Coby and Wichita lode mining claims. Application for patent was made by the owner of the latter claim, which was ad-versed by the claimants of the Henry Coby, who
The defendant claims that the Wichita was discovered July 26,1891, and that all the acts necessary to constitute a valid location were performed within the time required by law. On behalf of the plaintiff it is claimed that the Henry Coby was discovered September 1, 1891, and the location perfected by the first of October following. We shall not undertake to determine all the questions raised by the errors assigned by counsel for the defendant, because it seems some of them are without merit, and the determination of others is not necessary to a disposition of this appeal.
The defendants offered in evidence the original location certificate of the Wichita lode, which was objected to, and the objection sustained upon the ground that the description of the claim was too indefinite and uncertain, in that it was not hound or-tied to any monument or natural object. The description in this certificate was by metes and bounds, beginning at corner No. 1, describing- a parallelogram by courses and distances, and concluded by stating: “Corner No. 1 of Wichita lode joining corner No. 4 of Wichita Eagle lode.”
The important question to determine is, whether or not this tie was such a reference to- a monument as would render the certificate prima facie competent as evidence. The Act of Congress on the subject of the record of mining claims, § 2324, H. ¡3. Rev. Stats., provides that records of mining claims shall contain such a description of the claim, by reference to a
In the case at bar it was said, in substance, in the location certificate of the "Wichita lode, that corner No. 1 of that lode joined corner No. 4 of the Wichita Eagle lode. This reference was so definite and certain that any one finding corner'No. 4 of the Wichita Eagle lode would have no difficulty in locating corner No. 1 of the Wichita lode; and this brings us to the main question — whether or not this was a reference to a permanent monument, within the meaning of the law.
The law requires that the corner of a mining claim shall be marked by a substantial post hewed or marked on the side in toward the claim, and sunk in the ground or placed in a pile of stones. In the absence of testimony, it must be presumed that the locators of the Wichita Eagle lode complied with the law in this respect, and also described the ground embraced within the boundaries of that claim in a
Lindley on Mines, at § 381, says:
“* * * Tbe certificate is not required to show tbe precise boundaries of tbe claim as marked on tbe ground, but it is sufficient if it contains directions which, taken in connection with sucb boundaries, will enable a person of reasonable intelligence to find tbe claim and trace tbe lines. Tbe object of any notice at all being to guide tbe subsequent locator, and afford him information as to tbe extent of tbe prior location, whatever does this fairly and reasonably should be held to be a good notice. ’ ’
“As to ■whether a given notice or certificate of location contains such a description of the claim as located by reference to some natural object or permanent monument as will, identify it, is a question of fact to be determined by the jury, and parol evidence is admissible for the purpose of proving that the thing named in the certificate is, in fact, a natural object or permanent monument.”
In Farmington G. M. Co. v. Rhymney G. & C. Co., supra, Chief Justice Barteh, in speaking of the sufficiency of a location certificate, says:
“If, by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient.”
In Morrison v. Regan, supra, Mr. Justice Sullivan says:
“It is well established by numerous decisions that only where the insufficiency of the location certificate in its failure to make intelligent reference to natural objects or permanent landmarks is apparent on its face, the court may reject it. ”
And, later, in the same opinion, says:
“ A liberal construction should be given to location certificates, and their sufficiency with reference to natural objects or permanent monuments is a question of fact, where natural objects or permanent monuments are referred to therein. Where the location certificate contains a reference to a landmark, it should not, upon a mere inspection of the certificate and in the absence of evidence, he declared insufficient unless it clearly fails to identify the claim.”
But we are not without authority on the subject of a reference to a mining claim being a reference to a permanent monument. In Dillon v. Bayliss, supra, the reference in the location certificate of a mining
“We examine it now upon its face alone, to ascertain whether it should prima facie be admitted in evidence, wholly disregarding, for the present, all uncertainties and ambiguities that may be developed by evidence aliunde the notice.”
And, after further discussion, concludes:
“We are of opinion that there was no error in admitting the location notice in evidence. Its fate, however, when it got into court and met the attacks of it's adversary, is another matter.”
In Book v. Justice M. Co., 58 Fed. 106, the reference in the location notice of a mining certificate was as follows:
“This claim lies north of the Hartford mine.” It was also stated in the location notice that “This claim begins at this notice and monument, which is the southwest boundary of the Justice Mining Company’s claim.”
It was held that these references were a sufficient compliance with the law requiring reference in the record of location certificates to be made to some natural object or permanent monument.
In Shattuck v. Costello, supra, the location notice of a lode mining claim described it as being bounded by certain other named mining claims. On the subject of the sufficiency of such references, the court said:
‘ ‘ To name mining claims as the boundaries of a location is such a reference to natural objects and permanent monuments as to comply with the statute. The presumption is, that such objects exist, and the
In Kinney v. Fleming, supra, it was stated in the location certificate that the mining property in dispute “lays just east of the Joyce mine.” In speaking of the sufficiency of this reference, the court said: “It has been repeatedly held that a mine referred to by ñamé, as was the Joyce mine; is a permanent monument, and if the claim lay just east of the Joyce mine, its position is defined. Referring to a mine in a location notice casts upon the party attacking the notice the burden of showing that there is no such mine as referred to. ’ ’
In Riste v. Morton, 49 Pac. 656, the court held (quoting from the syllabus):
“A notice of discovery describing a mining claim as bounded by three other claims on three sides thereof, locates the claim with reference to permanent monuments, unless it affirmatively appears that such other claims are not permanent monuments.” The court, in the opinion, said:
“There is no evidence or presumption in this case that the three mining claims referred to in the Nevada King notice of location are not patented, and if not patented, that they are not well-known and permanent monuments.”
In Hammer v. Garfield Mining Co., supra, the notice of location of the G-arfield lode concluded by stating: ‘ ‘ This lode is located about fifteen hundred feet south of Vaughn’s Little Jennie mine.” This location notice was held sufficient by the supreme court of Montana, and Mr. Justice Field, speaking for the supreme court of the United States, in reviewing the judgment of the supreme court of Montana, said:
“"We agree with the court below, that the Little Jennie mine will be presumed to be- a well-known
See, also, Morrison v. Regan, supra.
In Duncan v. Fulton, 15 Colo. App. 140, in an opinion written by the late Judge Bissell, it was held (quoting from the syllabus):
“A description in a location certificate of a mining claim which ties the claim by course and distance to a patented claim is sufficient to comply with the statute requiring the description to refer to some natural object or permanent monument. A patented claim will be presumed to be a well-known natural object or- permanent monument until the contrary appears. ’ ’
Following this case in Carlin v. Freeman, 19 Colo. App. 334, it is said by Mr. Justice Maxwell, in speaking of the sufficiency of a reference to a natural object or permanent monument, in the location certificate of a mining’ claim:
“A description in a location certificate of a mining claim which ties the claim by course and distance to a patented claim, is sufficient to comply with the statute requiring the description to refer to some natural object or permanent monument.”
But we can see no difference between references to a patented claim and one not patented. The latter may be as well known, as prominent, and as particularly described as one that is patented. The presumption must be the same in each case.
This case is clearly distinguishable from Gilpin Co. M. Co. v. Drake, 8 Colo. 586, and Drummond v. Long, 9 Colo. 538. It will be observed that, in each of these cases, the court did not hold that a reference in a location certificate to another mining claim was not a reference to a permanent monument, but that the references were too indefinite and uncertain from which to determine the locus of the claim.
It is contended by counsel for plaintiff that it is not necessary to determine whether the exclusion of the original location certificate of the Wichita was error, for the reason that, under the instructions, the jury must have found that no valid discovery of mineral was made upon the Wichita prior to the discovery of mineral on the Coby. Under the instructions and the testimony, it cannot be said that such was the effect of the verdict. True, the jury were advised that, if the Wichita made discovery of mineral and posted notice, the Henry Coby could not, within sixty days next ensuing, locate, claim or initiate any right to the ground in conflict, and that no discovery or location of the Coby made during that period of sixty days could become the basis of any title to the ground in controversy. Other instructions following- presented a different question on the subject of discovery of mineral upon the respective claims, which, in view of the error committed by the court in excluding the original location certificate of the Wichita, were erroneous. It may be conceded, there was a conflict in the testimony on the question of the discovery of mineral on the Wichita prior to the date of the location of the Henry Coby, which was less than sixty days after the location of the Wichita.
The judgment of the district court is reversed, and the cause remanded for a new trial.
Reversed and remanded.
Justices Gunter and Maxwell concur.