25 Mont. 258 | Mont. | 1901
delivered the opinion of tlie Court.
Action by plaintiff for damages for alleged trespasses upon tbe Sboo Fly Gulch, placer claim, situate in Madison county, for a perpetual injunction restraining defendant from further trespassing thereon, and for a decree quieting plaintiff’s title. The defendant denies plaintiff’s title, sets up a counterclaim alleging title in himself, and demands judgment for damages and for injunction.
The opinion rendered on a former appeal, reversing a judgment in favor of the defendant herein and remanding the cause, is reported in 19 Montana, at page 488, 48 Pac. 988. The pleadings having been amended to conform to the suggestions made by this Court in that opinion, a trial was had upon the
At the trial the plaintiff rested his claim of title upon a location of the ground in controversy as the Shoo Fly Gulch placer claim, made by himself and one Thurgood in July, 1877. A notice or declaratory statement of this location was filed for record with the clerk of Madison county on July 22. It was signed by both locators, but was not verified. Plaintiff thereafter by mesne conveyances, acquired Thurgood’s interest. The defendant, denying any title in plaintiff, claimed title under a location called the “Humbug Placer,” made on July 22, 1893, a notice of which was recorded on August 9, 1893, and an amended location made on September 1, 1894. The three contentions made at the trial were upon the questions whether the ground in controversy was subject to location at the time plaintiff’s location was made, whether the plaintiff had failed to represent the Shoo Fly Gulch claim during the year 1892, and whether the plaintiff resumed work before defendant located the ground as the Humbug Placer, either by what he did on the ground in 1893, or by his amended location made in 1894. All these questions were fairly within the issues made by the pleadings, as appears from a synopsis of them set out in the statement preceding the opinion on the former appeal, and the integrity of the judgment of the district court turns upon the correctness of the instructions submitted to the jury upon these issues.
1. Evidence was introduced tending to show that the ground in controversy was located as a placer claim by one Sboles and ethers in June, 1876. Sboles himself, who testified in the cáse, stated that he saw the plaintiff upon the ground early in 1877,' but that as his time had not expired he was not uneasy. In another place in his testimony he says that while he and his associates worked in the- neighboring gulches until 1880, when
In what we have jaast said with reference to the Sholes locatioai ave have proceeded upon the assuanption that there was evideaace enough to go to the juay upon the questioaa aa-hether the acts doaae upoaa the groaand by Sholes aaad his associates in Jame, 1876, aaaade it a valid location. At that time the statute of the territoay of Moaataaaa requiring a record of a arerified notice or declaratory stateanent of location did not iaachade placea’ claians. It applied only to lode locations aaaatil the passage of the act of March 5, 1883 (Session Laavs 1883, p. .95), aadaich avas aonendatory of the Revised Statutes of 1879, and añade all locations subject to the saaaae rule. In the absence of a statute making additioaaal requiaunaents, or a local rule or coistoan (and none avas proven iaa this case), a coiaapliance avith the statutes
2. It was also a question for the jury, upon the evidence, whether the plaintiff had suffered a forfeiture of his rights by a failure to represent his claim in 1892, as well as whether he had resumed work in good faith before the Humbug Placer was located. The jdaintiff contends that it is shown by uncontradicted evidence that he did several hundred dollars worth •of work on his. claim in 1892. He also1 asserts that, if it be conceded that he did no work at all during that year, yet there is no controversy but that the evidence shows that he resumed work in good faith before the defendant made any location. As to work done in 1892 plaintiff’s position is sustained by his own testimony; on the other hand, the testimony of the defendant tends to show that jdaintiff did no' work at all, but that the excavation and removal of dirt from the gulch, which plaintiff claims to have done by the use of water from a ditch passing round the head of the gulch to other claims, was done by waste water from this ditch or by a cloudburst long before 1892, and that plaintiff had nothing whatever to do with it. There was thus a direct and substantial conflict in their statements. There is, however, no substantial conflict in the evidence introduced by the plaintiff to show that he did a large amount of work upon the claim in 1893, after the defendant •entered thereon, and during 1894, prior to September 1st. Indeed, a considerable portion of the judgment recovered by the defendant was for gold taken out by the plaintiff between July 22, 1893, and September 1, 1894, the date of defendant’s amended location. The facts connected with defendant’s location are that he entered upon the land in July, 1893. Having found gold, he marked the boundaries of his claim running up the gulch with monuments, which the jury evidently found
The location of the defendant, which was not completed until September 1, 1894, did not cut off the right of plaintiff to resume work at any time prior to that date, provided his location was valid in the first instance and had not been abandoned, and provided, also, that under the rule in Honaker v. Martin and Hirscler v. McKendricks he diligently prosecuted the work without unreasonable interruption until the full amount was performed. Of course, if upon another trial it should appear that the plaintiff abandoned his location at any time before July, 1893, he would have no right to the ground whatever.
3. Plaintiff contends that the trial court erred in overruling his objection to the introduction in evidence of a copy of defendant’s amended notice of location. Upon the theory that the Sholes location was a valid, subsisting one at the time plaintiff entered and made his location, the latter was void at initio
The judgment and order are reversed, and the cause is remanded for a new trial.
Reversed and remanded.