11 Mont. 303 | Mont. | 1891
The complaint alleges that Ormond “is now, and has been since .... the ninth day of May, 1888 .... the owner of, and in the possession of, and entitled to the possession of,” the Dark Cloud Lode Mining Claim; that after Ormond “had become the owner of, and in possession of, the above described mining ground, by virtue of prior discovery, and the due location of the said lode claim,” the Granite Mountain Mining Company “applied for a patent in the United States land office at Helena .... for an alleged claim called by the defendant the Molar Lode Claim, which said pretended lode claim overlaps and conflicts with the area” and title of Ormond to said Dark Cloud Claim to the extent of about ten acres; that Ormond has filed in said land office his adverse claim thereto, and now brings this suit “for the purpose of de termining the right to the possession of said mining ground, and the ownership thereof; .... that the said pretended claim, application, and proceedings of the defendant, as aforesaid, cast a cloud upon the plaintiff’s title.”
The prayer is that Ormond “ be adjudged the owner of said Dark Cloud Lode, .... and every part thereof (except as against the paramount title of the United States), and the right to the possession of the premises .... included in the adverse survey to the defendant’s application for patent, and that the defendant be adjudged to have no right, title, or interest therein.”
The answer denies that Ormond owned at any time the property described in the complaint, or was entitled to its possession; and alleges that the defendant has been at all the times mentioned in the complaint “the owner of that said portion of said property described as the Molar Lode Claim, and in the possession of the same, and entitled to the possession thereof; and
The prayer of the answer is that the defendant “be adjudged to be the owner of and entitled to the possession of all the said property described in the said complaint as the said Molar Lode, and that plaintiff have no right to the same.” The averments of the answer are denied by the replication.
The following verdict was returned: “We, the jury in the above-entitled action, find the title and right to the possession of the ground in controversy to be in the defendant.”
It is stated in the judgment that “the court ordered that a decree be entered herein in accordance with the verdict: . . . . Wherefore it is ordered, adjudged, and decreed by the court that the title and right of possession of the premises described in the plaintiff’s complaint and herein in controversy, . . . . and being the ground in conflict between the Dark Cloud Lode Claim and the Molar Lode Claim, .... is in the defendant, and that defendant is the owner and entitled to the possession thereof, and that the plaintiff has no interest therein or right or claim thereto.”
Ormond afterwards filed and served his notice of intention to move for a new trial, and relied upon this among other grounds: “Insufficiency of the evidence to justify the verdict in this, to wit: (a) That it was shown by the evidence that the plaintiff made a discovery within the limits of his claim as afterwards located, in accordance with the instructions of the court, prior to the location of his claim, and prior to the location of the defendant’s claim, (b) In that the evidence showed a discovery by plaintiff within the limits of the Dark Cloud Claim, in accordance with the instructions of the court, prior to the discovery and location of defendant’s Molar Claim.” These were the sole grounds which related to the evidence. The following order was made and entered: “ Motion for a new trial sustained, for the reason that the verdict was not supported by the evidence.”
An examination of the record shows that there was only one
E. O. Akerman testified he was upon the premises for the first time in June, 1890, and found quartz in the discovery shaft three and one half or four feet from the surface; the seam is not very wide there, but lower down it runs to eighteen inches wide; he assayed some quartz taken from the discovery, and found silver; found in the open cut a vein of quartz which connected with the discovery; the vein is about one and one-half inches wide inside of the discovery shaft, and about two feet from the surface; have never mined; the vein is eighteen inches wide in the cut, and about two feet from the bottom; the highest assay was four and one-half ounces of silver. This came from ore at the depth of seven feet in the cut.
J. E. Babcock testified he was upon the Dark Cloud Claim last winter; found a vein of quartz in the discovery shaft, and assayed it, and got three ounces of silver; the vein is three feet wide at the bottom, and there is about one foot of quartz; the cut and shaft are one open cut; the north part of it may have been a shaft, and four feet from the surface found a vein a foot wide; the vein was nine feet long, and run from the cut into the shaft.
Mr. McFadden testified he worked for plaintiff in June and July, 1888; the vein at the discovery shaft was about eighteen inches or two feet thick; made a cut thirty-five or forty feet long, and run into the shaft; the same ledge is in the cut and shaft; started to work the last of June or first of July, and was there two or three weeks; saw a well-defined lead in the shaft before he went to work; the vein was fifteen inches to two feet thick, and was within two or three feet of the surface.
Frank Barnes testified he saw the discovery shaft of the Dark Cloud Claim in the spring of 1888, and found a ledge of
Mr. Larson testified he saw McFadden at work upon the Dark Cloud Claim, and. the same vein was in the shaft and cut.
F. Carey testified he was on the Dark Cloud Claim in June,. 1890, and the shaft, after about fifteen or sixteen inches, had lead matter.
The plaintiff then rested, and the foregoing statement is a fair summary of the testimony in his behalf upon the point in controversy. The defendant produced thirteen witnesses, who testified to the contrary. We will not notice what was said by each of these persons, but will present an abridgment of their evidence. The Molar Claim was located July 19, 1888; there was no vein in the discovery shaft of the Dark Cloud Claim; there was no vein in the cut, July 19, 1888; if there had been a vein about ten or fifteen inches wide, those who examined the Dark Cloud Claim for this purpose are positive they would have seen it; the shaft was in the top rock, and not rock in place, or a solid formation; a trace of silver can be found in assaying, with litharge, any kind of rock.
No testimony was offered in rebuttal by the plaintiff. It appears from the record that “the jury, under the direction of the said court, proceeded to the premises in controversy, and viewed the same,” before they returned their verdict. The Code of Civil Procedure contains this section: “ Whenever, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose.” (§263.) This action of the jury, in pursuance of the order of the court below, makes a radical distinction between the case at bar and the authorities cited by the respondent. In Erhardt v. Boaro, 113 U. S. 527, Mr. Justice Field for the court said: “ It would be difficult to lay down any rules by which to distinguish a speculative location from one made in good faith with a purpose to make excavations and ascertain the character of the lode or vein, so as to determine whether it will justify the expenditures required to extract the metal; but a jury from
It is therefore ordered and adjudged that the order appealed from be reversed, and that the cause be remanded, with directions to overrule the motion for a new trial.
Reversed.