61 P. 428 | Or. | 1900
after making the foregoing statement of the facts, delivered the opinion of the court.
We proceed, then, to a consideration of the case upon tbe merits. As we understand the record, the questions presented are: (1) Was there a valid location made of the Zero and Piedmont claims by the plaintiffs and their predecessors in interest ? (2) Does any part of the placer claim as located by the defendants interfere with or cover the ground claimed by the plaintiffs ? (3) Are the plaintiffs estopped by their conduct from asserting their right as against the defendants ?
Mr. Whitman, who located the Zero claim in 1886, testifies that before locating it he discovered a well-defined quartz lode or rock in place sixteen or eighteen inches thick ; that he then measured off the claim on the ground as accurately as he could, building monuments of stone around each stake from two to two and a half feet in height; that he posted not less than six stakes, one at each end of the ledge, and one at each corner of the location, and marked those at the corners; that after-wards he made an open cut until he had obtained a trace of maybe nine feet or more, and then extended a tunnel about one hundred and fifty feet for the purpose of tapping the ledge ; that since the location he had expended each year more than $100 in work and improvement on the claim; that he also located the Piedmont claim in 1894, but the notice was not recorded until 1896; that before locating the claim he discovered within its limits a quartz ledge which he traced for quite a long distance, but did not make any measurements ; that after discovering such ledge he drove end stakes and posted corner stakes, after a careful measurement by a compass and measuring rod; that he posted a stake at each corner, and also one at the center of each end, and built monuments around them; that he took a copy of the notice he posted on the claim and gave it to the plaintiff Muldrick to be recorded, but for some reason it was not recorded until two years thereafter; that after the location of the Piedmont claim he placed on the ground an outfit, — tools, picks, shovels, wheelbarrows, and everything necessary for the work, — and that a part of these implements or tools were there all the time ; that he lived a short distance down the hill from the east line of the Zero, and that when not working these quartz claims he
It is next claimed that the Zero and Piedmont are not adjoining claims, but that the southeast corner of the Piedmont is some six hundred feet or more in a northwesterly direction from the southwest corner of the Zero, thus
The remaining question, and the one principally relied upon, is the alleged estoppel. The claim upon this point is that, prior to the placer location by defendants, Brown had^a conversation with the plaintiff Muldfick, in which he (Muldrick) said that he and Whitman had been unable to find a quartz ledge or vein on either the Zero or Piedmont claim, and if Brown would locate a placer claim covering the ground it would be all right, if he would agree to deed to them any quartz ledges which might thereafter be found within the" boundaries of his placer claim ; that, acting upon this statement and proposition, and relying upon Muldrick’s representations, the defend
Soon after or about the time the placer location was made by the defendants, Brown purchased of Hupprich for $1,100 a placer mine andjcer'tain water rights appurtenant thereto, for the purchase price of which he asked plaintiff Muldrick to go his security; stating, as he claims, that he desired the ditch and water rights for the pur
There are many other incidental questions covered by the testimony, but it is unnecessary to notice them in detail/ It is sufficient to say that, after a careful examination of the record and the exhaustive briefs of counsel, we are satisfied the decree of the court below should be affirmed, except in so far as it may enjoin the defendants from using that portion of the Hupprich ditch which passes over or across the Zero claim, for the purpose of conveying water therein; and to that extent it will be modified. Modified.