67 P. 955 | Idaho | 1902
— This is an action in support of an adverse claim made by the plaintiff against the application for a patent made by the defendant to the Summit lode mining claim, situated in French mining district, Owyhee county. The complaint alleges, inter alia, that the plaintiffs were the owners of a certain lode mining claim known as the Bullion; that said claim was located on the first day of January, 1887, by James Shaw and Simon Morrison; that on the nineteenth day of September, 1900, the plaintiffs by their agent made an amended location of said Bullion claim; that the plaintiffs and their grantors have performed the annual work required by law upon said Bullion claim from the date of its location to the present time, and have performed all other acts required to entitle them to hold said claim, and that during'all the time since January 1, 1887, the plaintiffs and their grantors have been in the actual, open, notorious, undisputed, and uninterrupted possession of said premises; that on the tenth day of January, 1901, the defendant filed in the United States land office at Boise City an application for a patent to the Summit lode claim, which conflicts with and overlaps the said Bullion claim. The answer denies the validity of the Bullion location, and puts in issue the material allegations of the complaint. A cross-complaint was filed by the defendant, which was answered by the plaintiffs. On the trial plaintiffs introduced some evidence of discovery, location, posting, and recording of notice of location, and thereupon offered in evidence the location notice, which is as follows:
“Bullion — Notice of Relocation.
“Notice is hereby given that we, the undersigned, having complied with the requirements of chapter 6 of title 32 of the Revised Statutes of the United States, and of the laws of Idaho
''Dated January 1st, year 1887.
''Locators: JAMES SHAW, 300 feet.
''SIMON MORRISON, 300 feet.
"Territory of Idaho,
County of Owyhee.
"I, James Shaw, do solemnly swear that I am acquainted with the mining ground described in the notice of location herewith, called the Bullion ledge, lode, or claim, and that the ground and claim therein described, or any part thereof, has not, to the best of my knowledge and belief, been heretofore located according to the laws of the Hnited States and of this territory, or, if so located, that the same has been abandoned or forfeited by reason of the failure of such former locators to comply in respect thereto with the requirements of said laws. . "JAMES SHAW.
"Subscribed and sworn to before me this first day of January, 1887. JAMES LYMAN,
“County Recorder.
“Filed January 1, 1887, at 2 o’clock P. M.
“JAMES- LYMAN,
“County Recorder.
Counsel for defendant objected to the introduction of said notice on the ground that there is no such description in the notice by reference to such natural objects or permanent landmarks or contiguous claims as is sufficient to identify the claim under the statutes. Thereupon James Shaw was called as a witness, and testified that the Minnesota and Red Jacket mines mentioned in said notice were well-known claims, and that as near as he could recollect the Minnesota claim was six hundred feet by one hundred feet, after which said objection was argued by respective counsel. The objection was sustained by the court, and the notice of location was not admitted in evidence.
George A. Sonnemann was then called by plaintiffs, and testified that he made an amended location of said Bullion lode by authority of the owners; that he had a lease and-bond on the same, and that thereunder he had the right to work said Bullion lode, and also had the privilege of perfecting the title and applying for a patent; that he made an amended location of said Bullion lode on the nineteenth day of September, 1900; thereupon said amended location notice was offered in evidence, which offer was objected-to by counsel for the defendant for the reasons that a void original location notice is not susceptible of amendment; that the testimony does not show the person who made the amended location had proper authority to make it; that the pleadings show that between the date of the original location and date of the amended location, in 1900, rights to claims upon which the defendant is applying for patent have intervened, and for the reason that no amended location can be made so as to cut off intervening rights, and that the amended location is not in the names of the same parties that made the original location. In passing upon that objection, the trial court said: “I am inclined to think that this amended location becomes effective only by reason of the fact that there
It is contended that said notice of location failed to comply with the provisions of section 2334 of the Revised Statutes of the United States, and section 3102 of the Revised Statutes of Idaho. Section 2324 of the Revised Statutes of the United States is as follows: “All records of mining claims hereafter made shall contain the names of the locators, the date of the location, and such description of the claim or claims located, by reference to some natural object or permanent monuments, as will identify the claim.” Section 3102 of the Revised Statutes of Idaho is as follows: “The notice must contain the date of the location, the names of the locators, the name of the claim, ledge or lode, the quantity in feet claimed along the ledge or lode, the width claimed from the middle of the vein, and must also give such a description of the locality of the claim, by reference to natural landmarks or fixed objects, and contiguous claims;, if there be any, as to render the situation of the same reasonably certain from the letter of the notice itself.” The court held that the location notice of the Bullion claim -did not sufficiently comply with the provisions of said sections of the Revised Statutes of the United States and of
The evidence clearly showed the mines known as the “Hurt Mines” in that locality were not about one-half mile in a northeasterly direction from the Magpie claim, and contiguous. One claim was southwest of it, another east of it and adjoining it, and another about one thousand feet east of it, and another about one-half mile northeast of it. Said four claims were known as the “Hurt Mines.” Being so scattered and in divers directions from the Magpie claim they were not a natural landmark or fixed object such as would identify the Magpie claim by simply referring to them in the notice of location thereof as being “about one-half mile from the Hurt mines, the direction being southwest.”
Under the provisions of said section 2324 of the Bevised Statutes of the United States, and section 3102 of the Bevised Statutes of Idaho, reference may be made, in a notice of location of mining ground, to a located mining claim, as a mining claim is a natural abject, or landmark, or fixed object, with
It was inadvertently stated in the decision of Brown v. Levan, supra, that the requirement of said section 3102 of the Revised Statutes, in reference to naming the adjoining claims in the location notice, had been complied with, when the record shows that the mining claims named in said notice as adjoining claims had not been located at that time. If they had been located prior to the location of the Magpie, reference to them as adjoining claims would have been a sufficient reference to a natural object, landmark, permanent monument, or fixed object to come within the provisions of said statutes, and the conclusion would have been different; for under the provisions of said section 3102 of the Revised Statutes, reference might have been made to an adjoining claim as a natural landmark, fixed or permanent object, as the" natural object may adjoin or be upon the claim located, for the law does not require that it be some distance from it. In the case of Railroad Co. v. San Garde, supra, this court held that, as the location notice failed to give the direction of the mining claim from the mouth of "Big Canyon” (the natural object to which it was attempted to tie said mining claim), it failed to comply with the provision of the law in that regard, and adhered to the rule laid down in the ease of Brown v. Levan, supra. There the notice failed to give the direction of the claim from the fixed object to which an attempt was made to tie it.
lie shall now recur to the location notice or certificate of said Bullion mining claim, and the ruling of the court in refusing to admit it in evidence on the trial. The court evi
The location certificate finder consideration states that the Bullion claim is six hundred feet in length along the'vein or lode, and three hundred feet on each side thereof, commencing at a stake and notice situated about three hundred feet in a northwesterly direction from the Minnesota mine; that it is an extension of the Bed Jacket mine; and running thence along the vein or lode in a southerly direction to a similar stake and notice; and that the locators claim six hundred linear feet in a southerly direction from this stake and notice to a similar stake and notice. It is stated in the notice that the .Bullion is an extension of the Bed Jacket mine, and runs thence along the vein or lode in a southerly direction. This description fixes the Bullion as a southerly extension of the Bed Jacket; hence it adjoins that mine on the southerly end.
In Hammer v. Milling Co., supra, the certificate of location read: “This lode located about fifteen hundred feet south of Vaughan’s Little Jennie mine.” The supreme court of Montana held that that was a sufficient reference to a natural object or permanent monument, within the meaning of the provisions of the statute. And the supreme court of the United States in sustaining that decision said: “We agree with the court below that the Little Jennie mine will be presumed to be a well-known natural object or permanent monument until the contrary appears.” In the case at bar, it is made to appear by oral testimony that both the Minnesota and Eed Jacket mines referred to in said notice of location are well-known mines in that vicinity, and that the stake and notice first referred to therein are situated about three hundred feet in a northwesterly direction from the Minnesota mine. So far as appears from the record, said Minnesota and Eed Jacket mines may be patented mines, but that is not required, as they are well-known mines in that vicinity. (See Russell v. Chumasero supra.)
In Farmington Gold Min. Co. v. Rhymney Gold etc. Co., supra, the certificate of location was quite loosely drawn, and we think the correct rule in regard to the question under consideration was there laid down. In passing upon the sufficiency of that certificate, the court said: “If, by any reasonable eon
As stated in that opinion, prospectors, as a rule, make no pretensions of scholarship, axe neither surveyors nor lawyers, and if, in their notices of location, technical accuracy of expression was an absolute requirement, the object of the law would in many eases be defeated, and great injustice result by disturbing possession, after much hard labor had been performed and money expended. We think the history of mining in this country shows that much more injustice has been done by depriving men who have in good faith located valuable mines, and thereafter been deprived of them by reason of some technical defect in their certificate of location, than has resulted in the “floating” of claims often referred to in the decisions of courts in this class of cases. 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, be declared insufficient, unless it clearly fails to identify the claims. (Russell v. Chumasero, supra; Hammer v. Milling Co., supra; Flavin v. Mattingly, supra.
If the rule laid down in the case at bar in any manner conflicts with the rule laid down in case of Brown v. Levan, supra, that case is overruled to the extent of such conflict; but the facts in that case show that the claims referred to as the “Hurt Mines” were not situated with reference to the Magpie claim as stated in the location notice, and that the mining claims named as adjoining claims were not located until some time after the Magpie claim had been located, and one of them never was located.
The second error relied upon is the refusal of the court to receive the amended certificate of location in evidence. The
Section 5 of an act entitled “An act to define the manner of locating lode, quartz and placer claims,” approved February 14, 1899 (Sess. Laws 1899, p. 237), is as follows: “If, at any time, the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that 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 the surface boundaries, or of taking any part of an overlapping claim which has been abandoned, or in case 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 conditions of this act, and to contain all that this act required an original certificate to contain; provided, that such amended location does not interfere with the existing rights of others at the time when such amendment is made.” That section provides for the amendment of original certificates of location, and provides that if the locator shall apprehend that his original certificate was defective, erroneous, or that the requirement of the law had not been complied with, etc., such locator or his assigns may file an amended certificate curing such defects, and such amended certificate relates back to the date of the original location, provided that it does not interfere with the existing rights of others. Most, if not all, of the mining states have similar statutes, that have been considered and construed by the federal courts and the supreme courts of those states. From such statutes, and the decisions under them, it is clear that an amended certificate may cure a defective or erroneous original certificate, and relates back to the date of the original, except when such original certificate is absolutely void, or when the rights of others have intervened between the date of the original and amended locations.
The above-cited decisions are from Colorado, a state where there is a statutory provision which declares that, where the certificate fails to describe the claim with reference to some natural object or permanent monument, it is void. We have no such provision. This court is in accord with the rule laid down in those decisions upon the question under consideration here. If in making the amended location it included land not included in the original location, and interfered with existing rights as to such land, the amended location would not relate back to the date of the original location, so far as the
We have examined assignments of error numbered from 3 to 10, inclusive, and concluded that the court erred in not admitting the evidence referred to in said assignments. The trial court, however, took the view that the original certificate of location was absolutely void, and on that ground rejected said evidence.
It follows that the court erred in granting the-nonsuit, and the judgment is reversed, and the cause remanded for further proceedings. Costs' of the appeal are awarded to the appellants.