25 F. 596 | U.S. Circuit Court for the District of Colorado | 1885
Ejectment to recover a mining claim called “Little Giant,” located by plaintiffs on the public lands, in the month of January, 1880. Defendant asserts title to part of the same ground under another location made in the month of October, 1879, and called “Durant.” As it is of earlier location, the latter must be of superior force, if it was regularly made and properly maintained to the time this suit was brought. That the locators of the Durant went upon the ground in August, 1879, and opened the vein in the manner and to the extent prescribed by statute is fully shown. It seems that the vein crops out in places on the surface of the mountain in a way to show it is a strike for a long distance. Before August, 1879, two locations had been made on the vein in the lower part of the mountain; of these locations, the one furthest north was made by the locators of the Durant, and called “1,001.” Following that in a southerly direction was the Spar claim, located by Philip W. Pratt and others. Near the southerly end of the Spar claim the vein came to the surface, and there, with the consent of the owner of the Spar, the locators of the Durant made their discovery opening, a cut. 13 feet or more in depth. To enable the Durant men to put their discovery in that place, the Spar owners gave them permission to move the Spar stakes to the north, so as to exclude from the Spar •claim the ground where the discovery cut of the Durant was made; and there is evidence to. the effect that this was done. Some witnesses, however, testify that the Spar stakes remained in their original position during the following winter, and perhaps a longer time;
As the Little Giant was located in January following, no .question is presented as to diligence on the part of the locators tof the Durant in keeping the stakes in position. Whatever the duty of a locator of a mining claim as to maintaining his stakes, having set them up in the autumn, he cannot be expected to renew them in January following.
In the course of testimony at the trial, a question was made whether the notice posted at the discovery cut of the Durant gave the direction of the vein; but it was conceded in argument that the statute did not require it. The notice at all times maintained at the discovery •cut seems.to have been full and complete under the statute, and no point is now made against it. The chief objection to the Durant location is founded on the original certificate, which was filed for record in the proper office November 20, 1879. This, it will be observed, was before any step was taken towards the location of the Little Giant, and the objection is not as to the time it was made or filed for record, but it is said that the ground now claimed as the Durant location is not described in it, and it contains no reference to a natural object or permanent monument, as required by section 2324 of the Statutes of the United States. The description in the certificate is as follows:
“Beginning at corner No. 1 south-west, thence east, 63 degrees south, 300 feet, to stake No. 2; thence north, 27 degrees east, 750 feet, to stake No. 3; thence in the same course 750 feet, to stake No. 4; thence west, 63 degrees north, 300 feet, to stake No. 5; thence south, 27 degrees west, 750 feet, to stake No. 6; thence in the same course 750 feet, to place of beginning. Said lode situated on Aspen mountain. Discovered August 13, 1879. Work done by open cut, twelve-foot face.”
Beginning at the south-west corner, as it was actually located in the survey for patent, and following the description as given in the certificate, the claim assumes a rhomboidal shape, extending somewhat south and west of the survey as made, and embracing little more than one-half of the territory covered by the patent survey. It excludes the south-east corner stake and the discovery cut. To avoid this result the surveyor who made the patent survey read the first course in the certificate, which is the south end line of the claim, as south 63 degrees east, instead of east 63 degrees south, as written; and the third course, which is the north end line of the claim, as north 63 degrees west, instead of west 63 degrees north, as written. So understood, the courses are approximately correct, but it is still necessary to allow something like four degrees in all the courses for the inaccuracy sure to occur in the rude efforts of miners to give courses and distances. In the amended survey the first course is south 58 degrees 52 minutes east, and the second course is north 31 degrees 8
The section relating to amendments is as follows:
“Boo. 25. If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend Unit his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing, or shall be desirous of changing his surface boundaries or of taking in any part of an overlapping claim which had been abandoned, or in ease the original certificate was made prior to the passage of this law, and he shall be desirous of securing the benefits of this act, such locator, or his assigns, may file an additional certificate, subject to the provisions of this act: provided, that such relocation does not interfere with existing rights of others at the time of such relocation; and no such relocation, or other record thereof, shall preclude the claimant or claimants from proving any such title or titles as he or they may have held under previous location.”
It will he observed that the section provides for correcting errors and delects in a certificate of location as well as for changing the boundaries so as to take in territory not before embraced in the claim. .Doubts have arisen as to whether the proviso in relation to existing rights is applicable to the clause which refers to errors and defects in the certificate. The better opinion appears to he that the proviso relates only to the matter of taking into the claim new territory. Apparently that was the matter to which the attention of the legislative assembly was chiefly directed. It is perhaps unfortunate that the
After the original certificate of the Durant location was amended, that certificate and the amendment were properly received in evidence as constituting a perfect certificate having effect from the date of the original, and no objection to the record of that claim is found. In this view, the Durant title is superior to the other, and must prevail. The other questions in the case may be passed without discussion. The judgment will be for defendant.