161 P. 1134 | Utah | 1916
The plaintiff, as lessee, on December 29, 1913, commenced this action to quiet the title to certain lode mining claims situated in Tooele County, Utah, and to enjoin the defendants named in the title of the action from in any way interfering with his possession of said claims. The defendant Nelson, alone answered the complaint, and, after denying the rights of the plaintiff, and of those under whom he claimed, also set up a counterclaim in which he claimed title to a large portion of the surface area of the claims described in plaintiff’s complaint. Nelson’s claim is based upon an alleged relocation of the claims, which was based on the ground that plaintiff had failed to do the assessment or representation work for the year 1913, and hence had forfeited his right to the claims, as well as the rights of those under whom he claimed.
The case, by stipulation, was transferred for trial to the district court of Salt Lake County. That court, after hearing the evidence, made findings of fact and conclusions of law in favor of the plaintiff and entered a decree quieting the title to the claims as prayed for in the complaint, and enjoined the defendants, including the appellants, from interfering with plaintiff’s possession. The defendant Nelson alone appeals.
Under the foregoing circumstances the appellant testified that he went upon the claims on December 31,1913, and found no one in possession, and found no indications that any work had been done on the claims for the year 1913; that in view of that fact he, with an assistant, on the morning of January 1, 1914, relocated a large portion of the surface area of the claims in question as being open ground made so by reason of plaintiff’s failure to do the required amount of work during the year 1913 and before the end of that year. Appellant, however, stated that he did not go to the boarding house on December 31st, but went there on January 1st, and in doing so found the plaintiff there.
Appellant’s counsel earnestly contends that in view that the evidence, without conflict, shows that the plaintiff had failed to perform the original assessment or representation work on
“On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars’ worth of labor shall be performed or improvements made during each year. * * * And upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation the same as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.”
The right in question here being based upon a federal statute, the decisions of the federal courts must control. Fortunately the question of whether under the statute we have quoted a locator of a lode mining claim may protect all of his rights and prevent a forfeiture of his location by commencing work upon his claim at any time during the year for which the work must be done has been passed on by the federal courts. In the case of Fee v. Durham, 121 Fed. 468, 57 C. C. A. 584, the rule is stated in the headnote, which correctly reflects the decision of Mr. Justice Caldwell, who speaks for the majority of the court, thus:
“A locator commenced his annual assessment .work on December 26th, and his employees worked until the night of December 30th, which was Saturday, when they quit until Monday morning, January 1st, and then resumed work, in the meantime leaving their tools on the claim. They continued the work until $500 worth had been done, hut less than $100 worth had been done on Saturday night. Sunday night, between twelve and one o’clock plaintiffs went upon the claim and relocated the same. Held that, in contemplation of law, the original locator continued in actual possession from Saturday night until Monday morning, and his work was continuous, and that plaintiffs were trespassers, and acquired no rights by their relocation.”
In. that case the work was commencfed on December 26th. In this case on the 30th or 31st of December of the year for
The same question was before the United States Circuit Court for the Western District of Arkansas in the case of Willitt v. Baker, 133 Fed. 937. In the fifth headnote to that decision the rule is stated in the following language:
“Where the locators of a claim were at work thereon on the 31st of December, and that night left their tools in the cut, intending to resume work the next morning at the usual time, which they did, their possession and work were, in law, continuous; and one who made a relocation in the night, during their absence, was a trespasser, and acquired no rights by the relocation.”
That ease, like the Fee Case, is, in principle, not distinguishable from the case at bar. To the same effect are Hammer v. Garfield M. Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964; Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735; Belcher Con. G. M. Co. v. Deferrari, 62 Cal. 160; Emerson v. McWhirter, 133 Cal. 510, 65 Pac. 1036 (which, under the title of Yosemite Min. Co. v. Emerson, is affirmed in 208 U. S. 25, 28 Sup. Ct. 196, 52 L. Ed. 374.) The doctrine, in a somewhat different form, is also recognized by this court in Lockhart v. Farrell, 31 Utah 155, 86 Pac. 1077.
Appellant’s counsel, in answer to all of the foregoing cases, cites and relies alone upon the dissenting opinion of Mr. Justice Sanborn in the case of Fee v. Durham, supra. Mr. Justice Sanborn, in his dissenting opinion, lays down the doctrine that unless a locator performs the required $100 worth of assessment work upon each lode claim, or on some claim of a number of claims constituting a group for the benefit of all the claims, during each year, that is, before the year for which the work must be done has expired, the claim is open for relocation, and if the claim is actually relocated before $100 worth of work is done, or that amount of improvements made for each claim, the original locator forfeits all of his rights to the claim unless he actually performs the necessary $100 worth of work, or makes that amount of improvements before the claim is actually relocated. True, the justice con
We are of tbe opinion that the judgment of the district court is right upon both the facts and the law, and that it therefore should be, and it accordingly is, affirmed, with costs.