17 S.D. 98 | S.D. | 1903
This is an action to quiet title to a mining claim in Lawrence county. The case was tried to the court without a jury, and, the findings and judgment being in favor of the plaintiffs, the defendants appealed.
On this case being called for argument, the plaintiffs and respondents moved the court, upon notice previously given, to strike from the record the bill of exceptions settled and allowed by the court on the 31st day of July, 1901, upon the grounds that the same was not signed and settled within the time al lowed by law, and no good cause was shown why the same should be settled after the time had expired allowed by law, and that the order of the court made May 17, 1901, extending the time and the order settling the bill of exceptions on the 31st day of July, were not in furtherance of justice. It will be necessary to dispose of this motion before proceeding to discuss the case upon the merits.
It appears from the additional abstract that the case was tried in January and February, 1899; that the argument upon
It is contended by the plaintiffs and respondents that neither good cause was shown for an extension of the time, nor was the extension of the time in furtherance of justice. They further contended that there was no showing whatever that the defendants took a single step toward preparing a bill of exceptions between the 20th day of October, 1900, when the last book of the transcript was delivered, and the 13th day of May, 1901. Section 5093, Comp. Laws 1887, provides: “The court or judge may, upon good cause shown, in furtherance of justice, extend the time within which any of the acts mentioned in sections 5083 and 5090 may be done, or may, after the time limited therefor has expired, fix another time within which any of such acts may be done.” In McGillycuddy v. Morris, 7, S. D. 592, 65 N. W. 14, this court, in. commenting upon that section, used the following language: “It will be observed that the power or authority to ‘fix another time’ within which the act may be done is coupled with the condition ‘upon good cause shown.’ The language is ‘The court or judge may upon good cause shown, * * * fix another time within which any of said acts may be done.’ The manifest purpose of the Legislature in the adoption of this section was to place the whole matter of giving notice of the intention to move for new trials and the service and settlement of bill of exceptions within the sound judicial discretion of the trial court; not to its mere arbitrary discretion as to the time within which the several proceedings may be taken. The
■ The object and purpose of section 5093 evidently was to prevent a failure of justice by reason of inadvertence, mistake, or excusable neglect; but it was not in the contemplation of the legislature that parties might intentionally disregard the time fixed by the staute, and then apply to the court-to fix another time within which the required acts could be done. Counsel for the defendants and appellants seem to have assumed that they could take their time for making the trans-
It is urged by the appellants that the case at bar comes within the rule laid down in Davis v. Cook, 9 S. D. 319, 69 N.
In view of the long delay in preparing the bill of exceptions, and the failure to obtain an order from time to time extending the time for settlement of the bill, and especially the long delay intervening between the completion of the transcript on the 20th day of October, 1900, and the procuring of the order to show cause on May 13, 1901, we are clearly of the opinion that no good cause was shown,, and that the court committed error in making the order of May 17,1901, granting the defendants and appellants 60 days from the date thereof within which to prepare and serve a bill of exceptions and to move for a new trial; the order having been duly objected to and exceptions taken by the plaintiffs and respondents, and in settling the bill of exceptions Qn July 31 st the same having been duly objected to, and an exception taken.
It is further contended by the respondents that the bill of exceptions was settled after the time for appeal had expired, and after an appeal had been taken, and that the court had no jurisdiction to settle the bill after the time for appealing had expired. In the view we have taken of the case, we do not deem it necessary to consider this question. The motion to
The only question remaining, therefore, is, did the court draw the proper conclusions from and enter the proper judgment upon the facts found? The property in controversy includes something less than an acre of mining ground in Lawrence county, claimed by the plaintiffs as constituting a part of the Wasp No. 2 mining lode, owned by them, and claimed by the defendants as a part of the Little Blue fraction lode owned by them. The facts found by the court are very voluminous, and we shall not attempt to do more than to give a brief summary of the findings we deem material to a determination of the questions presented by this record. The Wasp No. 2 was located by the predecessors in interest of the plaintiffs on October 12, 1893, and the various acts constituting the location are fully set out by the court in its findings, one of which was the placing of the west side center stake against a tree, and fastening the same by means of twigs, instead of setting the same in the ground. Prior to the location of the Wasp No. 2 lode, a mining claim known as the ‘‘Hilltop” had been located, and the Wasp No. 2, as located, extended partly over the southerly end of the said Hilltop lode. The latter lode, as it existed at the time of the location of the Wasp No. 2, was staked 161 feet too long on the southerly end. The Wasp No. 2, at the time of its location, as shown by the staking, was about 2,150 feet in length, extending 313 feet in a northerly direction from the discovery shaft and about 1,837 feet in a southerly direction therefrom, making an excess over the amount allowed by law of 650 feet. On the 11th day of July, 1894, the excess of 637 feet on the southerly end was located by the owners of the
The court concludes as matters of law: “(1) That on the 12th day of October, 1893, and thereafter, the Wasp No. 2 lode location was a valid existing mining claim to the extent of 1,500 feet in length along the lode thereof, to-wit, to the extent of 300 feet running northerly from the discovery shaft and 1,200 feet running southerly from the discovery shaft; and that no one else had aright to go within the limits of said claim to locate
The questions to be determined are: (1) Was the Wasp No. 2 an invalid location by reason of the fact that its westerly side stake was not firmly set in the ground? (2) Was the Wasp No. 2 an invalid location for the reason that it was originally located and staked 2,150 feet in length, instead of 1,500, the number of feet allowed bylaw? (3) Did the fact that the locators of the Little Blue fraction lode made their discovery within the lines of the Little Pittsburg lode render the Little Blue fraction lode invalid until it made a discovery outside of the said Little Pittsburg lode, and within.its own lines? (4) Did the Wasp No. 2, by having located a portion of the excess on the south end of the Hilltop, become entitled to all that portion of the Hilltop lode within its lines in excess of the 1,500 feet? ' (5) Was'the judgment entered upon stipulation in the case wherein the defendants herein were the plaintiffs and Averill and Martin defendants, adjudging that the Little Blue fraction discovery was within the lines of its location as made, admissible in evidence as against these plaintiffs, who were not parties to that action, or claiming under the plaintiffs therein?
It will be noticed that the Little Blue fraction lode was located over a year subsequently to the location of the Wasp No. 2 as originally staked, but it is contended by the appellants that when the Little Blue fraction was located it did not conflict with the Wasp No. 2 lode, but that subsequently to the location of the Little Blue fraction the owners of the Wasp No. 2 swung their stakes westerly, so as to include the ground in controversy. The court, however, found that the Wasp
It appears that the ground in controversy was first included in the Hilltop location, in 1893 it was included in the Wasp No. 2 location, and, thirdly, in the fall of 1894 in the Little Blue fraction location. The Hilltop, as we have seen, being located 16.1 feet too long, contracted its lines, thus leaving the ground in controversy free from that claim.
'* It is further contended by the appellants that they are ,en
It will thus be seen that the appellants, by their pleadings, relied entirely upon their right to the Little Blue fraction lode, and assert that the plaintiff should be estopped to claim ihe ground for the reason that the same was originally embraced within the exterior lines of the Hilltop, a prior and valid location at the time the Wasp No. 2 was located, and that the conflict between the Little Blue fraction and the Wasp No. 2 was caused by the Wasp No. 2 swinging its lines 185 feet westerly.
The Little Blue lode and the Hilltop lode being disposed of, we are brought to a consideration of the respective claims of the owners of the Wasp No. 2 and the owners of the Little Blue fraction to the ground in controversy. As will be observed, the first contention of the appellants is that the Wasp No. 2 location was invalid for the reason that it was not staked in the manner prescribed by law, in that the westerly center side line stake, as found by the court, was not firmly set in the ground, but only fastened to a tree by small twigs. It is insisted on the part of the respondents that the failure to
It is further contended by the appellants that the Wasp No. 2 was an invalid location by reason of its being staked 2,150 feet in length — 650 in excess of the amount allowed by law, It seems to be the general rule that an excessive claim of mining ground, either in length or width, renders the location void only as to the excess. 20 Am. & Eng. Ency. 695; Parley’s Park Silver M. Co. v. Kerr, 130 U. S. 256, 9 Sup. Ct. 511, 32 L. Ed. 906; Richmond M. Co. v. Rose, 114 U. S. 576, 5 Sup. Ct. 1055, 29 L. Ed. 273; Jupiter M. Co. (C. C. ) 11 Fed. 666; Howeth v. Sullenger, 113 Cal. 547, 45 Pac. 841; Taylor v. Parenteau, 23 Colo. 368, 48 Pac 505; Thompson v. Spray, 72 Cal. 528, 14 Pac. 182; Hansen v. Fletcher, 10 Utah 266, 37 Pac. 480. It is true there are some exceptions to the rule, but, as said by the author of the article on mines and mining in the authority first cited, “It is not to be expected that miners can in all cases be strictly accurate in marking their claims, and, if they are guilty of no fraud in marking an excessive claim, the law will protect them in holding a claim of legal size.” It is not contended in the case at bar that there was any fraud on the part of the locators in including in the Wasp No. 2 claim, as originally staked, more ground than the parties were entitled to locate, and, as they stated the number of feet of ground claimed northerly of the discovery shaft and southerly there
It is further contended by the appellants that at the time the Wasp No. 2 made its location the ground in controversy was within the exterior boundary lines of the Hilltop as staked and therefore it acquired no right to that ground. But, as we have seen, the Hilltop was located 161 feet too long, and in 1894 it drew in its south end line, leaving the ground in controversy outside of its claim. . Its location was void as to the excess, and the excess of the Hilltop within the exterior boundary lines of the Wasp No. 2 became a part of that claim, subject, of course to any prior valid claim. A location made conflicting with another prior location, if a proper discovery is made, is valid against all persons except the prior locator; and if the claim of the prior locator is abandoned, forfeited, or any part of the claim in conflict is not rightfully held by the prior locator, the subsequent location attaches to so much
It is contended by the appellants that the court erred in its conclusion that the judgment entered in the circuit court; wherein the defendants in this action were plaintiffs and Ave-rill and Martin were defendants, on stipulation, was in no wise binding, and did not affect the plaintiffs in this action, and did not validate the Little Blue fraction lode except as between the parties to that action. We are of the opinion that the court ruled correctly in making this conclusion of law. The plaintiffs in this action were not parties to that action, and did not claim any rights under the parties to the same. The appellants sought by the introduction of the judgment to show that the discovery of the Little Blue fraction lode was properly made within the lines of its own location as staked. As between the plaintiffs and appellants in that action, it was competent for the owners of the Little Pittsburg to stipulate that such was the fact, and allow the judgment to be entered accordingly. But such a judgment was not binding upon these plaintiffs, and they are not estopped thereby from showing that the discovery of the Little Blue fraction was actually made within the lines of the Little Pittsburg lode. It may be stated as a general rule that judgments only bind parties and privies, and that strangers are not effected by it. Freeman on Judgments, § T54; Black on Judgments, § 6001 There are,
The judgment in controversy in this action does not, however, come within any of the exceptions to the general rule. It is not offered for the purpose of showing title in the parties, as they did not claim under the j udgment, but by virtue of their
It is contended by the appellants that the judgment was admissable upon the ground that application had been made by the owners of the Little Pittsburg lode for a patent for that claim, and the same had not been adversed by the respondents; but this contention is untenable for the reason that the repondents were not claiming adversely to the Little Pittsburg lode, and the Wasp No. 2 did not conflict with that location; hence the owners of the latter claim had no grounds upon which to base an adverse to the application of the Little Pitts-burg, and they were not, therefore, required to file any adverse claim, and the authorities cited by counsel for appellants have no application to the case at bar.
Finding no error in the record, the judgment of the circuit court is affirmed.