109 P. 846 | Idaho | 1910
Lead Opinion
This is an adverse suit which was commenced by the respondents claiming to be the owners of the' Senator lode claim, with which it was alleged the Louis and Clark lode* claims conflicted. On September 4, 1905, "W. Z... Pepper, a prospector and the predecessor in interest of the-appellant corporation, discovered a vein of mineral-bearing-rock in the Hunter mining district, Shoshone county, and' thereupon posted two notices of location, one for the Louis; and the other for the Clark claim. The validity of the discovery is not questioned. At the time of making the discovery and posting the notices, Pepper met the respondent' Gribble, who informed him that he (Gribble) owned certain claims which embraced the ground Pepper was about to locate. It seems that he then stated that he owned ground embraced' in four claims in a compact body, being 3,000 feet in length by 1,800 feet in width. These claims were named, respectively, the Senator, Lost Booze, Prize and Princess. The-claim with which it is urged that Pepper’s locations conflicted, was the so-called “Senator.”
At the time of Pepper’s discovery and location he did' not know of the existence of the Senator claim except what. Gribble told him. Gribble did not, and apparently could not,. show Pepper the stakes to the Senator claim. Pepper testifies that Gribble did not point out or show him any of the stakes or corners or the discovery on the Senator, but that, on the contrary, Gribble told him that the stakes had either-
The evidence on the part of the appellant shows that Pepper and his associates and those who worked for him were unable to find any of the stakes on the Senator claim except one tree that was squared and on which there were no markings, and' on which Pepper testified that Nicholls marked as the east center end of the Senator subsequent to Pepper’s location of' the Louis. It is conceded by all parties that there was no location notice posted on the Senator at the time of the Louis-location. *
The testimony of the respondents, Nicholls and Gribble, and' their witnesses shows that the Lost Booze claim was located in 1901 and the Prize, Princess and Senator were located in.
The prize claim adjoins the Lost Booze on the west and the Princessadjoins the Prize on the north and the Senator on the west. These two claims, however, are not involved in
On about the 18th of September, 1906, the respondents employed an engineer to make a survey of these four claims. It was ascertained from that survey that the ground covered by the four locations comprised a compact area of about 4,649 feet in length by 2,075 feet in width; whereas it could lawfully have embraced in the four locations only an area of 1,200 feet in width by 3,000 feet in length. It was also shown by that survey that the Senator claim had an average width of about 1,065 feet by an average length of about 2,067 feet. In other words, this claim embraced an area equal to more than two and one-third full claims. The respondents therefore had actual knowledge from September, 1906, of the area and extent of the Senator claim as they insist that it was staked on the ground. They made no effort, however, toward drawing in their lines or making an amended location until after the appellant had applied for patent and after the respondents had filed their adverse suit. Their lines were not readjusted until March 31, 1908, on which latter date the surveyor made an amended location and they staked the ground to conform with the amended location which covers the ground in conflict in this action.
It is contended by the appellant in this case that respondents’ locations of the Senator, the Lost Booze, the Prize and Princess are so excessive in area as °to render the locations void. "While counsel for appellant do not place their reliance in so many words on failure of the-locators to properly mark the boundaries of their claims by establishing at each comer thereof and at any angle in the side lines a monument marked with the name of the claim and corner, etc., as required by the statute (see. 3206, Rev. Codes), still the argument leads to that conclusion and results in that position. It is said in the brief that the location is a fraudulent location by reason of the excessive area embraced within the pretended external boundaries, and that this fraud is further emphasized and established by the fact that although the locators had- positive
Considerable discussion has taken place among the courts and text-writers as to the effect of a location which includes within its boundaries an area in excess of the statutory maximum. After an examination of all the authorities that have been called to our attention bearing on this subject, we are inclined to the belief that the more reasonable rule, and one eminently just and equitable, is that adopted by this court in Burke v. McDonald, 2 Ida. 679, 33 Pac. 49. The court there said:
“"Were the boundaries of'the Mammoth so large as to render the location void? Easterly of the discovery point it was marked about one hundred and fifty feet longer than the calls of the notice, and was considerably wider than allowed by law, while the westerly one thousand feet was marked substantially correct in size. Strict accuracy in the marking of claims cannot be expected or required. The character of the ground over which the locator must make his measurements must be considered; if even, with unobstructed view, greater accuracy would be required than when the surface is broken, and covered with timber. If a claim is made excessive in size with fraudulent intent, ‘it is void. If made so large that it cannot be deemed the result of innocent error, fraud will be presumed, or if from any cause it be made so large and with such indistinct markings that its boundaries cannot be readily traced, and subsequent locators, after reasonable diligence, cannot find the same, it would be void, as against another location made in good faith. Just what excess will be tolerated, or what will vitiate, cannot be defined, but must depend somewhat upon the circumstances of each case. In Montana, it has been held a claim located 1,763 feet long is void, and the tendency there is toward strict accuracy of boundary; while in other courts it has been held that in the absence*231 of fraud, tbe claim will be held void only as to tbe excess. (Stemwinder Case, 2 Ida. 456, 21 Pac. 1040; Mining Co. v. Rose, 114 U. S. 579, 5 Sup. Ct. 1055, 29 L. ed, 273; Jupiter Min. Co. v. Bodie Consolidated Min. Co., 11 Fed. 675.) In tbis case it appears tbe ground is sucb tbat accuracy in measurement could not be expected; also tbat tbe Lackawanna was •discovered and located mostly on tbe westerly end of tbe Mammoth, where tbe latter was correctly marked. It cannot be presumed, from 'all tbe circumstances of tbe case, tbe Lacka-wanna locators were misled by these markings, and tbe conclusion of tbe trial court is áustained. ’ ’
Substantially tbe same rule was suggested by tbe supreme court of Oregon in Gohres v. Ill. & J. Gravel Min. Co., 40 Or. 516, 67 Pac. 666, wherein that court-said:
“Where an excessive location has been made through mistake, while- acting in good faith, as where tbe locator sets bis stakes and estimates bis distances without chain or compass, it is void only as to tbe excess. Tbis rule is of general application, except, it may be, where tbe excess is so large as to give rise to an inference of bad faith.”
Substantially the same statement was made in Richmond Min. Co. v. Rose, 114 U. S. 576, 5 Sup. Ct. 1055, 29 L. ed. 273. This latter -case, however, has been cited by some text-writers as supporting the contention tbat the location of an excessive area will never avoid the claim but will only render it voidable to the extent of the excess. the question, tbat was being discussed by the supreme court in tbat case, as well as the language used by the learned justice who wrote the opinion, entirely fails to justify the assertion tbat tbis case goes to the extent claimed. the opinion in tbat case specifically bases the rule announced on the principle of “good faith” in the locator.
It is true, as contended by appellant, tbat it has been held by tbe supreme court of Montana in two eases (Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714, and Leggatt v. Stewart, 5 Mont. 107, 2 Pac. 320), that “Tbe location of a mining claim must conform in all respects to tbe statute authorizing it and boundaries beyond tbe extent of tbe location are no
Mr. Lindley, in vol. 1, sec. 362, of his work on Mines, speaking of this subject, says:
“The courts uniformly hold that such a location, where it injures no one at the time it is made, and where it has-been made in good faith, is voidable only to the extent of the excess.An excessive location cannot be said to be a fraud upon others. It cannot take away rights.already acquired by prior appropriation. A location within the statutory limit cannot accomplish this. As to subsequent locators, they can measure the ground from the preliminary • discovery notice, which is universally posted at, or in reasonable proximity to, the point of discovery.”
It should be remembered that it takes more than the posting of a “discovery notice” to constitute a valid location of a mining claim. (Sec. 3206, Rev. Codes, and see. 2320, Rev. Stat. U. S.) It is just as essential that the exterior boundaries of the claim be marked by the setting of posts and the erection- of monuments as it is that a discovery notice be posted. Indeed, the general rule prevails that courses and distances give way to the actual monuments and markings on the ground. It is eminently fair and reasonable and just to say that an innocent mistake has been made when the exterior boundaries of a claim are marked on the surface of the ground twenty-five, fifty or possibly one hundred feet beyond and in excess of the area to which the claimant is actually entitled under the statute, and that such posts and- monuments impart notice to a prospector who is looking for vacant, unappropriated public domain on which to locate a mining claim. These monumento and markings on the surface of the ground may be further said to direct the prospector to look for the location notice and the discovery shaft or tunnel on the claim. In such case, however, he has a right to assume that he will
We are perfectly safe, we think, in saying that all the authorities, with the possible exception of the two Montana eases, are in accord in holding that a location in a reasonable excess of the maximum area allowed by law, which is honestly and innocently made, will be permitted and sanctioned by the courts to the extent of a lawful claim. But just the point at which the excess becomes so great as to render the attempted location void has never been definitely enunciated by any of the courts so far as we are able to find. And yet it is perfectly apparent that we must reach a limit some time, beyond which no court would hold that there had ever been made any valid location, by reason of the stakes and monuments attempting to include such an excessive and enormous area of
Mr. Snyder, in vol. 1, of his work on Mines, at sec. 397, in considering this question and referring to Burke v. McDonald, says:
“The supreme court of Idaho, on the other hand, has reached a conclusion somewhat more liberal than the Montana court, holding that if the excessive boundaries are the result of innocent error, the claim should be held valid, except as to the excess which is rejected; but if the excessive boundaries are laid with fraudulent intent, the entire claim is void. As indicated in the beginning of this section, the latter rule seems the sound one.The principal obstacle to be encountered in applying the doctrine enunciated by the Idaho court, as we view it, is that it would be a very difficult matter to ascertain in a particular ease whether the excessive boundaries were laid with fraudulent intent. The court certainly could not say as matter of law that they were so laid, and if the question is considered one of fact, we hardly see just how it would be proved. And, after all, what object has the locator to attempt to include more ground in his location than is authorized by law? When he makes his location he has*235 the statute staring him in the face, and knows that whenever he applies for a patent to his claim he will then be restricted to the amount authorized by law. “Wle think the Idaho court had the correct understanding of the matter, and reached the conclusion, which should have been followed in the later cases, when it said, speaking through Chief Justice McBride: ‘If he claims more than the law allows, it is void for the excess. . ... To claim more than the law allows is no fraud on others, for they have the same means of ascertaining the attempted fraud that the other has to commit it.’
It will be observed that the author here calls attention to the case of Atkins v. Hendree, 1 Ida. 95, in which Chief Justice McBride, speaking for the territorial court, enunciated the rule from which Mr. Lindley has evidently gathered the substance of his text, to which we have heretofore adverted. We desire to say at this time that we are not in accord with the latter portion of the opinion in Atkins v. Hendree, which is quoted by the learned author and to which he calls specific attention. We do not think it is the duty of the prospector who finds a post or other monument erected as a part of the exterior boundary of a mining claim to sweep the country for an unreasonable distance to find a location or discovery notice. If he has any doubt about the monuments properly marking the exterior lines of the claim, it is his duty to examine within the limits and territory which the statute authorizes such a claim to include and perhaps a reasonable area contiguous thereto. But it would be a clear fraud on him to charge him with notice of the contents of a discovery or location notice at an unreasonable distance beyond the limits or confines of a claim which the monuments found or discovered could properly include.
Coming now to the facts of this specific ease, we are impelled to hold that the excessive area included in the Senator and Lost Booze locations, when considered in the light of subsequent events, clearly avoids the Senator location and renders it a nullity. The locator of the Senator learned definitely and to a certainty in September, 1906, that he had included within the exterior boundaries of that location an area suffi
Viewed in the light of subsequent events and the evidence of bad faith furnished by the locator himself, it is clear that the Senator location is fraudulent and void and was not made in good faith. The judgment in this case should be reversed, and it is so ordered, and the cause is remanded. Costs in favor of appellant.
Rehearing
ON PETITION FOR REHEARING.
A petition for a rehearing has been filed in this ease. Counsel contends that there was a conflict in the evidence on certain points, in which we have reversed the trial court’s findings, and also contends that this court erred in holding that if any discovery cut actually existed on the Senator claim, it was very indistinct, and that the measurements referred to should have been made from the discovery point on the Senator claim instead of the discovery on the Lost Booze claim.
After this court held that the Senator location was absolutely void because of the excessive area it contained, it mattered not what the findings of the trial court were with reference to the discovery point on the Senator claim. If the location was absolutely void because of the excess, it could not be sustained under any findings whatever with reference to the discovery, as it takes more than a discovery to make a valid location.
After a careful consideration of the ease, we are clearly of the opinion that a rehearing should not be granted. A rehearing is therefore denied.
