11 Mont. 309 | Mont. | 1891
Lead Opinion
It appears from the findings of facts, whicJb. are admitted by the parties, that the Edna Lode Mining Claim was discovered June 4, 1887, and that the boundaries were marked by posts at each corner and the center of each end line. The notice of location was filed June 15, 1887, in the office of the recorder of Jefferson County. The owners of the Edna Lode Mining Claim, including Frank Nelson and Charles Koegel, two of the appellants herein, moved, May 13, 1889, M the two stakes at the west end between five and six hundred
Nelson, by his deed, which was executed August 21, 1889, also conveyed all his right, title, and interest in the Edna Lode Mining Claim to the grantors of the respondent. The same
What was the intention of said Nelson and Koegel in the execution of these instruments ? What right, title, or interest in the Edna Lode Mining Claim was embraced in the foregoing deeds? The Code of Civil Procedure has prescribed the rule for their interpretation: “ For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret.” (§ 632.) “ The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is, nevertheless, admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.” (§ 633.) The statute is a codification of the decisions of the courts upon this subject. The property in controversy is of a peculiar and exceptional character. Parties who comply with the laws of the United States and this State, and the local customs and regulations of a mining district, acquire the right to occupy, possess, and explore a lode mining claim. The discoverers do not usually make an accurate survey of the premises; and the notices of location contain a description in general terms, and by name. When the true course of the vein has been ascertained by development, the boundaries are usually changed to protect the interest of the claimants. The owners of the Edna Lode Mining Claim availed themselves of this privilege, which is valid under certain conditions, and about three months after these boundaries had been changed and restaked, the deeds were executed by Nelson and Koegel.
In Phillpotts v. Blasdel, 8 Nev. 70, the court quotes with approval the following extract from the opinion of the district judge, the Hon. W. H. Beatty, who, since that time, has been an honorable member of the Supreme Courts of the States of
Let us apply to the instrument before us the principle which . has been established by the authorities and the Code of Civil Procedure. The intention of Nelson and Koegel is clearly expressed in their respective deeds, and they thereby parted with their right, title, and interest in the Edna Lode Mining Claim, as this property was known to them in August, 1889, and for which a patent might be issued by the government of the United States. It is contrary to the words and acts of Nelson and Koegel to say that they intended to sell, and their grantees wished to buy, the Edna Lode Mining Claim, as originally located, when they had abandoned a portion thereof to the public, and were not seeking any patent thereto. In order to obtain this patent, it is essential that a number of acts should be done by the applicants, and the Edna Lode Mining Claim was surveyed according to the boundaries which had been fixed by the change of the lines by Nelson and Koegel and the owners in
“ 11. That on October 30,1889, plaintiffs, Nelson and Koegel, bought out all the interest which Watson and Donnelly had in the Lightning Claim.
“12. That the plaintiff Shreve derived his title or interest in the Lightning Claim by purchase from Nelson and Koegel.”
The court below held that Nelson and Koegel were estopped by their deeds, and prevented from asserting any claim to the area in conflict. The question of ownership of the Lightning Lode Mining Claim, or the validity of its location, is not involved in this inquiry. If the appellants succeed in this litigation, they prevent the respondent from securing the Edna Lode Mining Claim, which they “expressly covenanted ” that its grantors, and “their heirs and assigns forever,” should have and hold.
In Van Rensselaer v. Kearney, 11 How. 297, the court, through Mr. Justice Nelson, said: “And therefore, if the deed bears on its face evidence that the grantors intended to convey, and the grantee expected to become invested with, an estate of a particular description or quality, and that the bargain had proceeded upon that footing between the parties, then, although it may not contain any covenants of title in the technical sense of the term, still the legal operation and effect of the instrument will be as binding upon the grantor, and those claiming under him in respect to the estate thus described, as if a formal covenant to that effect had been inserted; at least, so far as to stop them from ever afterwards denying that he was seised of the particular estate at the time of the conveyance.....The principle deducible from these authorities seems to be that, whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seised or possessed of a particular estate in the premises, and which estate
In Smith v. Williams, 44 Mich. 242, Mr. Justice Cooley for the court said: “Where one assumes by his deed to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance. This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants have given.” (Long Island R. R. Co. v. Conklin, 29 N. Y. 572; Doe v. Dowdall, 3 Houst. 369.)
The Code of Civil Procedure provides as follows: “ When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it; and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.” (§ 636.) The language seems to be decisive in its application to the deeds of the appellants.
The authorities seem to be in harmony upon this question, and we are of the opinion that the court below construed correctly the deeds of Nelson and Koegel, and held that these parties were thereby estopped from maintaining this action. The appellant Shreve obtained his title and interest to the Lightning Lode Mining Claim from Nelson and Koegel, and being in privity with them, is also in like manner estopped.
We concur in the views of Mr. Justice De Witt regarding the construction of the law applicable to the discovery and location of the Lightning Lode Mining Claim.
It is ordered and adjudged that the judgment be affirmed.
Affirmed.
Dissenting Opinion
([dissenting). — As the majority of the court affirm the judgment, on the ground of the estoppel, they are freed from any discussion of the question of the “ discovery.”
The respondent applied to the United States for a patent upon the Edna Quartz Lode Mining Claim. The appellants contested that application, alleging that they were entitled to the Lightning Claim, which claim included a portion of the alleged Edna, the area in conflict being designated upon the accompanying plat below, by Fig. G, H, I, F.
In pursuance to the United States statute, the contention was referred to the State District Court for determination. (Rev. Stats. U. S. § 2326.)
The case was tried to the court without a jury. The court found that the defendant was entitled to judgment for the possession of the premises in controversy. Mery complete special findings of fact and conclusions of law were made by the court.
The plaintiffs’ Lightning Claim was located July 7, 1888 (plat, K, L, H, J), and recorded July 17, 1888. The Edna was staked and located June 4, 1887 (plat, A, B, C, D), and recorded June 15, 1887.- The claim was marked upon the ground by its locators in such a manner that its area did not
On May 13,1889, after the alleged location of the Lightning, the Edna people made new westerly corners five or six hundred feet further to the south, thus making new lines for the Edna (shown in plat by Fig. B, C, F, E), and which thus brought the Edna into conflict with the Lightning. The Edna owners did not remove the old original westerly corner stakes, but left them upon the ground, and erected new ones at the new westerly corners. No amended or new location notice, indicating this change in the surface lines, was made until November 19,1889, at which time such a record was made.
Upon the motion for a new trial, two alleged errors of the court were urged, and are treated in the opinion below,, and which may be stated as follows: — ■
1. The plaintiffs sought to establish the validity of the Lightning location. Among other facts material to their claim, they sought to show that they had, before recording their claim, made a proper discovery upon the premises, which entitled them to locate it as a mine. Upon this proposition the defendant asked the court to find as a fact as follows: “The court finds as a fact that at the time of the posting of the notice and marking of the boundaries of the Lightning Claim there had not been discovered on said claim any vein, lead, or lode, or rock in place, bearing mineral or other valuable deposit; nor was there any wall of a lead or lode discovered or developed at said time.”
Defendant also asked that the following conclusion of law be found: “That the Lightning Claim and location is invalid and of no force, for want of a discovery of any vein or lode containing rock bearing known valuable mineral deposits at the time of the location of said claim, or prior thereto.”
The court was not satisfied with this proposed finding and conclusion, but modified them, and found as a fact “ that, prior to the time of location by posting the notice and marking the boundaries of said Lightning Mining Claim, there had not been any actual discovery of any vein or lode containing rock in place, or any rock bearing any known mineral deposits of sufficient value to justify expenditure in the effort to extract them.”
2. The court found that plaintiffs were estopped from claiming the premises in controversy, the portion of the ground in conflict between the Edna and the Lightning (plat, G, H, I, F). The facts upon which the estoppel was predicated are: Frank Nelson and Charles Koegel were joint plaintiffs with Shreve. The evidence by deeds was that Nelson and Shreve became owners in the Lightning, by purchase from the locators, November 8, 1889, and Koegel, by purchase, March 20, 1890. But the finding of the court is that Nelson and Koegel bought the whole of the Lightning from the locators, and that plaintiff Shreve derived his title by purchase from Nelson and Koegel. This finding is not attacked in the specifications. On May 13, 1889, Nelson and Koegel were owners in the Edna. On that day the new westerly end corners of the Edna, noticed above, which were originally further north (plat, A and D), were made at the points further south (plat, E and F). Nelson knew of this change, and assisted therein. It does not appear that Koegel knew of it, or assisted in moving the corners. The old stakes were left at the old corners, and new ones erected at the new. But the notice of the relocation, to conform to this swing to the south, was made November 19, 1889. Between the date of setting up the new corners, May 13, 1889, and the recording a location notice, November 19, 1889, claiming the mine as described by such new westerly corners, the plaintiffs, Nelson and Koegel, on August 17th and 21st, respectively, made deeds to the grantors of the defendant.
The description of the subject-matter of Koegel’s deed is as follows: “An undivided one-fourth interest in and to that certain piece or parcel of land known as the ‘ Edna Quartz Lode
The Nelson deed was practically the same, and needs no further recital.
Nelson was called as a witness for the defendant, and, over the objection and exception of the plaintiffs, testified in reference to the deed mentioned: “It was my intention to convey by that deed all my interest in the Edna Lode, all that was covered by the change of lines, and all the title I acquired by reason of this change. I sold all my right, title, and interest in the Edna to this disputed ground. I intended to convey everything, whether it was in the new lines or not. I included everything, whether it was in the new location or otherwise/ just as it might be. At the time I sold I did not know that there was any dispute over this ground. I meant to convey everything I had acquired. The record that I refer to in the deed was made the 4th of June, 1887. I sold all that I had on record. I did not sell anything else but what was on record. I considered that what was obtained by the change of the corners belonged to the claim, and I intended to sell that.”
Nelson was only one of the plaintiffs against whom the estoppel was invoked. Koegel did not give similar testimony as to his intention. Shreve had nothing to say upon the subject.
The court found as a fact, “that the plaintiffs, Frank Nelson and Charles Koegel, were owners in the Edna Lode at the date of May 13, 1889, when the two west stakes of said claim were moved further south, and the plaintiff Nelson actually assisted in moving said corners; that on the seventeenth and twenty-first days, respectively, of August, 1889, and after the change
The law, upon this fact found, the court declared in the following words: “ That the plaintiffs are estopped by their deeds from asserting title to any part of the ground embraced in the Edna Lode, as it was marked off and designated on the seventeenth day of August, 1889, and prior thereto.” Appellants specify error in the view that the court took of the estoppel claimed.
As to the first proposition set forth in the statement of the case as just made, under the view of the law that I entertain, I do not deem it necessary to examine the evidence upon which the finding of fact was made. I will assume, therefore, that it was the fact that, at and prior to the time of the location of the /Lightning Claim, the locators had not made any discovery of a vein or lode containing rock in place, or any rock, bearing any known mineral deposits of sufficient value to justify expenditure in the effort to extract them. Turning my attention to the conclusion of law by the court, my investigation reduces itself to this succinct inquiry: Under the mining laws must the claimant of an alleged quartz lode mining claim, before he makes his location, discover a vein or lode containing rock bearing known mineral deposits of such richness as to justify work to extract them? or, in the language of the miner, what is a discovery?
The United States Revised Statutes, which are the charter of the miner’s rights upon the public domain, declare: “ Sec. 2319. All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.”
The State law, after defining the method of recording mining claims (Comp. Stats, div. 5, § 1477), declares: “ Sec. 1479. That in order to entitle any person or persons to record, in the county recorder’s office of the proper county, any lead, lode, or ledge, there shall first be discovered on said lode, lead, or ledge, a vein or crevice of quartz or ore with at least one well defined wall.”
The mineral lands of the United States being open to exploration and purchase, the first step of the prospector is the discovery of a mine. Having discovered his mine, he locates it, and records it in the manner prescribed by law. Under the statutes we may therefore say that the miner who discovers a lead, lode, or ledge, with a vein or crevice of quartz with one well defined wall, containing a valuable mineral deposit, is entitled to locate, record, and hold the same, upon compliance with the provisions of the law.
The formalities of location and recording are not here in question. We need not again inquire what is a lead, lode, or ledge, or vein, except as to its quality of valuableness, which we discuss below. We have endeavored in King v. Amy etc. Min. Co, 9 Mont. 565, to express our views as to what constitutes a vein, except that the matter of value was not there under consideration; and the views that we there recorded we believe, as far as they go, to be in harmony with the utterances of the Supreme Court of the United States, the court of last resort upon that proposition.
Advancing in the consideration of the matter before us, it appears that, if the District Court was correct in its conclusion of law in this case, then the miner must not only discover a vein, “ a continuous body of mineralized rock, lying within any other well defined boundaries on the earth’s surface or under it,” which vein shall answer the definitions which the courts have given of that term, but, before he can locate that vein as a
Assuming that the mineralized vein is found, the mineral deposit discovered, the whole proposition reduces itself to the interpretation of the word “ valuable,” as used by the statute. Must the deposit, at the time of location, be valuable enough to pay to work as a mine, or must some other intention be discovered as the true intent of the use of the word “valuable?” The miner has twenty days in which to record his claim, in order to protect his right of possession. Must his prospective mine appear, within these twenty days, to be valuable enough to pay for extracting the minerals, or must the quality of valuableness be determined upon considerations other than the certainty of a paying mine at the time of location ?
Distinguished judges in the mining countries have recorded their views of what constitutes a miner’s lode or vein. Their language is as household words in the courts and among the lawyers and miners of the State. But the importance of the proposition of law, which we are considering as a first impression, induces me to cite from familiar opinions which I believe shed light upon the matter before us.
Mr. Justice Emerson, in Harrington v. Chambers, 3 Utah, 94, said: “ I have long thought, and still think, that under the requirements above quoted, a valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following, in expectation of finding ore.”
In Stevens v. Gill, in the United States Circuit Court for the district of Colorado, we find Judge Hallett using the following language: “As to all such contacts and all such deposits as are found in the neighborhood of Leadville, a lode cannot exist without valuable ore, but, if there is value, the form in which it appears is of no importance; whether it be of iron, or manganese, or carbonate of lead; or something else yielding silver, the result is the same. The law will not distinguish between different kinds and classes of ore if they have appreciable value in the metal for which the location was made. Nor is it necessary that the ore shall be of economical value- for treatment. It is enough if it is something ascertainable, something
Mr. Justice Field’s definition and discussion of the term <e lode,” in Eureka Con. Min. Co. v. Richmond Min. Co. 4 Sawy. 302, has long been an authority. We cite but briefly as follows : “ As used by miners, before being defined by any authority, the term 'lode’ simply meant that formation by which the miner could be led or guided. It is an alteration of the verb Nead’; and whatever the miner could follow, expecting to find ore, was his lode. Some formation within which he could find ore, and out of which he could not expect to find ore, was his lode. The term 'lode star,’ 'guiding star,’ or 'north star’ is of the same origin.” This is the language of one oí the witnesses as quoted by Justice Field.
There is the well-known language of Judge Sawyer, used in North Noonday Min. Co. v. Orient Min. Co. 6 Sawy. 299; 1 Fed. Rep. 522, and also in Jupiter Min. Co. v. Bodie Con. Min. Co. 11 Fed. Rep. 675; “The statute also provides that 'no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.’ So that no rights can be acquired under the statute by a location made before the discovery of a vein or lode within the limits of the claim located. A vein or lode authorized to be located is a seam or fissure in the earth’s crust filled with quartz, or with some other kind of rock, in place, carrying gold, silver, or other valuable mineral deposits named in the statute. It may be very thin, and it may be many feet thick, or thin in places — almost or quite pinched out, in miner’s phrase — and in other places widening out into extensive bodies of ore. So, also, in places, it may be quite or nearly barren, and at other places immensely rich. It is only necessary to discover a genuine mineral vein or lode, whether small or large, rich or poor, at the point of
We find Mr. Justice Miller remarking, in Iron Silver Min. Co. v. Cheesman, 116 U. S. 538: “ If the language here excepted to [speaking of an instruction given in the court below] stood alone, it would be correct, though possibly too general or exclusive. Certainly the lode or vein must be continuous, in the sense that it can be traced through the surrounding rocks, though slight interruptions of the mineral-bearing rock would not alone be sufficient to destroy the identity of the vein. Nor would a short partial closure of the fissure have that effect, if a little farther on it recurred again with mineral-bearing rock within it. And such is the idea conveyed in the previous part of the charge. ‘ On the other hand,’ said the judge, ‘ with well defined boundaries, very slight evidence of ore within such boundaries will prove the existence of a lode. Such boundaries constitute a fissure, and if in such fissure ore is found, although at considerable intervals and in small quantities, it is called a lode or vein.’ ”
Such are some of the well considered opinions as to what constitutes a lode or vein, and touching to some extent the requirements of the valuableness of the deposit claimed as a mine. We are then offered by respondent a line of authorities which he submits sustain the conclusion of the District Court. They are Deffeback v. Hawke, 115 U. S. 392; Colorado Coal etc. Co. v. United States, 123 U. S. 307; Erhardt v. Boaro, 113 U. S. 536; Alford v. Barnum, 45 Cal. 482; Merrill v. Dixon, 15 Nev. 401; Territory v. Mackey, 8 Mont. 173, and the recent case of Davis v. Weibbold, 139 U. S. 507, which last case reviews the previous
In Davis v. Weibbold, Davis claimed the premises in controversy as a town lot in the city of Butte, Montana, deriving his title from the town-site patent of the United States to the probate judge of Deer Lodge County, dated September 26, 1877. Wiebbold relied upon a patent of the United States for the Gold Hill Mining Claim, bearing date January 15,1880. It appeared further that Weibbold entered the land in the United States land office, and paid for the same September 19, 1878. The town-site patent antedated both Weibbold’s mineral patent and his entry of the land in the land office. No proof was offered to show when the Gold Hill Mining Claim was located. “ When the entry of the town site was had, and the patent issued, and the sale was made to the defendant (Davis, defendant below) of the lots held by him, it was not known — at least, it does not appear that it was known — that there was any valuable mineral lands within the town site; and the important question is whether, in the absence of this knowledge, the defendant can be deprived under the laws of the United States of the premises purchased and occupied by him because of a subsequent discovery of minerals in them, and the issue of a patent to the discoverer.” (p. 518.) Such are the facts as they appeared in Davis v. Weibbold, 139 U. S. 518. After the title by the town-site patent had passed from the United States to Davis5 predecessors, and on September 19, 1878, as the record in the case showed, Wiebbold took his first step towards acquiring title to the ground as a mining claim, (p. 526.) Under that state of facts, the United States Supreme Court held that Davis, the town-site claimant, could not be deprived of his town lots
Again, consider the words of the same justice in Deffeback v. Hawke: “ It is plain, from this brief statement of the legislation of Congress, that no title from the United States to land known at the time of sale to be valuable for its minerals of gold, silver, cinnabar, or copper can be obtained under the pre-emption or homestead laws, or the town-site laws, or in any other way than as prescribed by the laws specially authorizing the sale of such lands, except in the States of Michigan, Wisconsin, Minnesota, Missouri, and Kansas. We say, ‘land known at the time to be valuable for its minerals,’ as there are vast tracts of public land in which minerals of different kinds are found, but not in such quantity as to justify expenditures in the effort to extract them. It is not to such lands that the term ‘mineral’ in the sense of the statute is applicable. .... It is there (U. S. Rev. Stats.) enacted that ‘lands valuable for minerals’ shall be reserved from sale, except as otherwise expressly directed, and that ‘ valuable mineral deposits’ in lands belonging to the United States shall be free and open to exploration and purchase. We also say lands known at the time of their sale to be thus valuable, in order to avoid any possible conclusion against the validity of titles which may be issued for other kinds of land, in which, years afterwards, rich deposits of mineral may be discovered. It is quite possible that lands settled upon as suitable only for agricultural purposes, entered by the settler and patented by the government under the pre-emption laws, may be found, years after the patent has been issued, to contain valuable minerals. Indeed, this has often happened. We therefore use the term known to be valuable at the time of sale, to prevent any doubt being cast upon titles to lands afterwards found to be different in their mineral character from what was supposed when the entry of them was made and the patent issued.” Here we have the same sort of language as in Davis
In Alford v. Barnum the question was the known status of the land at or subsequent to the date of the grant, not the known qualities of the ground at the time of a location of it for mineral. Merrill v. Dixon is on the same line.
In Cowell v. Lammers, 10 Sawy. 246; 21 Fed. Rep. 200, Judge Sawyer says: “By the words‘mineral lands’ must be understood lands known to be such, or which there is satisfactory reason to believe are such at the time of the grant or patent. And the United States courts which have had occasion to act upon this subject, so far as I am aware, have adopted that idea. There must be some point of time when the character of the land must be finally determined, and for the interest of all concerned, there can be no better point to determine this question than at the time of issuing the patent.”
In Davis v. Weibbold, Mr. Justice Field, after reviewing all these cases which we have mentioned, and also the decisions of the land department of the government, sums up the situation, and announces the opinion of the court in the following words: “It would seem from this uniform construction of that department of the government specially entrusted with supervision of proceedings required for the alienation of the public lands, including those that embrace minerals, and also of the courts of the mining States, federal and State, whose attention has been called to the subject, that the exception of mineral lands from grant in the acts of Congress should be considered to apply only to such lands as were at the time of the grant known to be so valuable for their minerals as to justify expenditure for their extraction. The grant or patent, when issued, would thus be held to carry with it the determination of the proper authorities that the land patented was not subject to the exception stated. There has been no direct adjudication upon this point by this
We must notice one more utterance of Mr. Justice Field, upon which the respondent relies, in Erhardt v. Boaro, 113 U. S. 527: “This allowance of time for the development of the character of the lode or vein does not, as intimated by counsel, give encouragement to mere speculative locations; that is, to locations made without, any discovery or knowledge of the existence of metal in the ground claimed, with a view to obtain the benefit of a possible discovery of metal by others within that time. A mere posting of a notice on a ridge of rocks cropping out of the earth, or on other ground, that the poster has located thereon a mining claim, without auy discovery or knowledge on his part of the existence of metal there or in its immediate vicinity, would be justly treated as a mere speculative proceeding, and would not itself initiate any right. There must be something beyond a mere guess on the part of the miner to authorize him to make a location which will exclude others from the ground, such as the discovery of the presence of the precious metals in it, or in such proximity to it as to justify a reasonable belief in their existence. The protection will be afforded to the locator to make the necessary excavations and prepare
When Justice Field distinguishes a mere speculative or fraudulent posting of a notice where there is no mineral or indications of the same from a location made in good faith, he is far from holding or intimating that it is the law that the miner must find a paying mine before he can locate a claim.
As to Territory v. Mackey, 8 Mont. 168, which respondent seems to consider interesting in this connection, I am of opinion that a reading oí that case, and the facts, render any discussion of it wholly a work of supererogation.
It is perfectly apparent, from our examination of the decisions of the United States Supreme Court, that we may state one proposition positively; that is, that that court has never yet held, as did the court below in the ease at bar, that, in order to entitle one to locate a mining claim upon the public domain of the United States, he must first discover a vein or lode containing rock bearing known mineral deposits of such richness as to justify work to extract them. But do the decisions of that court necessarily, or at all, imply that doctrine? The advocates of the view of the law as declared by the District Court can detach from the opinions of Mr. Justice Field certain expressions, and upon them frame an argument. We refer to his expressions above cited in reference to minerals of such richness as to pay for the labor of exploitation or the raising to the surface. But these expressions were used, in every instance, in discussing what the mineral character of the ground should appear to be at the time of the grant by the government of the land, for purposes other than those of a mine, in order to except the alleged mineral land from such grant for such other purposes.
“ There must be some point of time when the character of the land must be finally determined, and there can be no better point to determine this question than at the time of issuing
There may be a vast difference between mineral ground which is valuable for exploitation and that which appears to be valuable for exploration. There are immense tracts which» appear to the miner to be valuable for the latter purpose, and a large portion of which develops to be valueless for the former. This is evidenced by the honeycombed and deserted mountains throughout the mining regions, where toil and wealth have been expended on leads which once attracted the miner’s exploration, but where the sound of the pick and the drill is long since stilled. And it is just this fact that has made and will make the mines; the ever present and alluring appearance of value, and the occasional reward of development. Without prospecting, there will be no discovered mines. Without the privilege to claim and locate and hold a discovery, there will be no prospecting. A prospect not once in one hundred times is a mine in sight. If the locator must show a paying mine at location, the riches in these mountains are a locked treasury.
The law does not contemplate this. The mineral lands are open for two purposes — for exploration and for purchase. Exploration precedes purchase. It opens the way for purchase. Without exploration, purchase would be rare. A miner would desire to purchase the mineral lands at once, if they at once appeared to be of sufficient value to pay to work. He would desire to explore them, if they seemed sufficiently"valuable to attract exploration. It is a rare claim that is a mine at the grass roots, or where the paying vein is first found at or near the surface. The history of the mining countries has shown that, in the vast majority of cases, years of toil and thousands of dollars have been required to demonstrate that a mineral vein will pay to work. And in many of them, even after years of immense production, when dead work, prospecting, and de
Again, the government will not issue a patent for a mine at once upon discovery, no matter how valuable it then appears and actually is. It requires, first, the expenditure of five hundred dollars in improvement and development. For what purpose? In order to demonstrate that the claim is of that character that the government will grant the ground as a mine.
Before the mining acts of Congress, the miner was a trespasser upon the public domain. The acts of Congress gave him rights upon the mineral lands. The object of the requirement of the expenditure of one hundred dollars annually before the issuance of patent, and of five hundred dollars in the aggregate before patent, was to develop the mines and demonstrate their character. If it were the ordinary nature of valuable mining claims to appear, upon the instant of discovery, to be of sufficient value to pay to work them, why make the requirements of these expenditures in development before the issuance oí patent?
The whole spirit of the statutes, and the construction given by the learned tribunals that have considered them, is not that the prospector must find a paying mine before he can locate his claim. If it were, mining prospecting in these regions would suffer an instant and well-nigh total paralysis.
If the fear be suggested that speculative locations may take the public domain, we can do no better than adopt the language of Mr. Justice Field, cited above from Erhardt v. Boaro, 113 U. S. 536, %hich he concludes with the remark that “a jury from the vicinity of the claim will seldom err in their conclusions on the subject.”
I feel an ample support in my views in the decisions of the United States Supreme Court.
“ A valid location of a mining claim may be made whenever the prospector has discovered such indications of minerals that he is willing to spend his time and money in following in
But observe Judge Hallett’s words cited above, where he says: “Nor is it necessary that the ore shall be of economical value for treatment;” and the language of the context. (Stevens v. Gill, supra.) “ It is only necessary to discover a genuine mineral vein or lode, whether small or large, rich or poor, at the point of discovery.” (North Noonday Min. Co. v. Orient Min. Co. supra.) “With well defined boundaries, very slight evidence of ore within such boundaries will prove the existence of the lode;’ and the context. (Iron Silver Min. Co. v. Cheesman, 116 U. S. 538.) And in the language adopted by Mr. Justice Field, in speaking of a lode: “It is an alteration of the verb ‘lead,’ and whatever the miner could follow expecting to find ore was his 5 lode.’ Some formation within which he could find ore, and out of which he could not expect to find ore, was his lode. The terms ‘lode star,’ ‘guiding star,’ and ‘north star’ are of the same origin.”
So that if the miner finds that which is a lode or vein within the approved definitions, containing valuable mineral deposits; if it is a vein of that character, and that which he can follow, as indicated — a mineral lode, his guide, his star — he may claim it and locate it and hold it, without being required to show that, at the time of location, it contained mineral deposits of sufficient value to justify work to extract them. As above remarked, how valuable the deposit must be to distinguish it from a speculative and fraudulent location we are not called upon to decide, but leave that matter as did Mr. Justice Field in Erhardt v. Boaro.
As far as I am aware the United States Supreme Court has not directly decided the proposition that has here been presented to us, and which we have endeavored to treat; but the conclusion that I reach is abundantly inferred from the utterances of
Upon the conclusion of law by the District Court that I have discussed, I am of the opinion that the judgment of that court should be reversed, and the case remanded.
"With these views I understand the majority of the court agree, but they place their decision upon the matter of the estoppel.
Upon that question I have to observe: The old Edna Claim (A, B, C, D) was located June 4, 1887, and recorded June 15, 1887. The new Edna, if I may so denominate it for the purpose of distinction (C, B, E, F), was marked upon the ground May 13,1889, and its notice of location was recorded November 19, 1889. Between the old staking and record, in 1887, and the new in 1889, the Lightning was located and recorded July 7-17, 1888 (J, H, L, K). The old Edna and the Lightning were not in conflict. The new Edna and the Lightning were (Gr, H, I, F). If the Lightning location were valid, it prevails over the new Edna, as to the area in conflict, as it is a location senior to the new Edna. As hereinbefore concluded, the Lightning was not invalid, on the grounds assigned by the court. "Whether it were invalid for other reasons — reasons within the law as I conceive it to be — we are not now required to say. But, on the grounds which the District Court adopted for holding the Lightning invalid, we must take the location of the Lightning, for the purposes of this discussion, as a valid one, and leave its validity or invalidity, whichever it may be, on other grounds, to be determined if a retrial of the case is had.
Now, on August 17th and 21st, Koegel and Nelson, plaintiffs, were owners in the Edna Claim, whatever the Edna was. They sold their interest in the Edna to the predecessors of the defendant. The court held that the plaintiffs were estopped by their deeds, which are described in my statement of the case above, from now setting up title to the ground in controversy (Gr, H, I, F). As to Shreve, I will speak below.
But were Koegel and Nelson estopped? In August, 1889, they conveyed to the defendant’s predecessors their interests in the Edna. As the case is presented on this appeal the Light
But respondent invokes the statute (Comp. Stats, div. 5), as follows: “Sec. 267. L any person convey any real estate by conveyance purporting to convey the same in fee-simple absolute, and shall not, at the time ot such conveyance, have the legal estate in such real estate, but shall afterwards acquire the same, the legal estate subsequently acquired shall immediately pass to the grantee, and such conveyance shall be valid as it such legal estate had been in the grantor at the time of the conveyance.”
.One of the requisites of the application of this statute is that the grantor’s conveyance shall “purport to convey” the premises, in which he has not then, but afterwards acquires, the legal estate. Did Nelson and Koegel’s deeds “ purport to convey ” the area in conflict? Those deeds conveyed the Edna claim as described in the notice of location thereof, which was recorded. This recorded notice was put in evidence. It showed the claim located June 4, 1887, and recorded June 15, 1887. It is clear
But Nelson demands a little further attention, as the estoppel as to him presents itself in another phase. Although he did not convey, nor did his deed purport to convey, the area in conflict, has he done that which now forbids him to say that he did not convey it; that is to say, is he estopped by his acts, wholly independently of the operation of the statute? It may be observed that Nelson knew of the swing of the Edna to the south, and assisted in making it. This does not appear to be the fact as to Koegel, so the acts and knowledge of Nelson which were sought to be applied to estop him do not exist as to Koegel.
There were three plaintiffs, Nelson, Koegel, and Shreve. One firm of counsel appeared for them all. Nelson alone testified on the trial that he intended to convey in his Edna deed of August, 1889, all his interest in the area in conflict, believing that the record of the Edna, originally made, and subsisting at the date of the said conveyance, included the said area in conflict. But as to Koegel. Nelson’s testimony, whether competent or not, did not disclose that Koegel, by his Edna deed, intended to convey his interest in the area in conflict; nor does it at all appear anywhere in the case that Koegel intended to convey anything but that which his deed purports to convey; and as his deed does not convey, or purport to convey, the area in conflict, he is left standing upon the face of his deed, and
Having eliminated Eoegel from the operation of the estoppel claimed, I return to Nelson. He joined with his co-plaintiffs in the action. His attorneys were the same as theirs. But upon the trial he deserts the position of hostility to the defendant, which he occupied on the record by virtue of being a plaintiff, and appears as a witness for the defendant, and favorable to-the defendant, and adverse to his own interests as a plaintiff If he chose to go upon the stand, and testify the truth (and, for all that appears, what he said was the truth), and such truth is an advantage to defendant, and adverse to the plaintiff witness, that was an act of honesty as commendable as it is not wholly uniform in human affairs, and an act which will call from this court no adverse criticism.
But here is the peculiar position: Plaintiffs’ counsel are plaintiffs’ and witness Nelson’s counsel. He offers to testify that when he made his Edna deed he intended to convey the area in conflict. His counsel objects. He insists. As he himself was personally present in court, and personally offered to give this testimony, his counsel objecting to it, it must be that, whatever authority his counsel originally had to represent him, his conduct at this moment was a revocation of such authority in this particular. He had a right to revoke such authority. His conduct was certainly a revocation of his counsel’s authority to object to the testimony that he desired to give. Therefore it must be that Nelson gave this testimony voluntarily and without objection. Defendant did not object to it. It was in its favor, and material to its case. Plaintiff Nelson did not object to it, as he personally insisted upon giving it. No valid objection could be made by plaintiffs, Shreve and Eoegel, as it did not injure or prejudice them in any way, and was wholly immaterial to their interests. Therefore, from the point of view that we now occupy, the evidence went in without objection or exception. Now, in what position has Mr. Nelson placed himself? It is one entirely creditable to his honor and integrity. He thought that by virtue of his Edna interest, in August, 1889, he owned an interest in the area in conflict. He represented that he did. He intended to convey that supposed
Therefore Nelson was estopped and Koegel was not. Now, as to Shreve. The evidence is unquestioned that Shreve derived his title in the Lightning Claim from the locators of that claim, and that Koegel and Nelson were not grantors of Shreve in the Lightning title. But, notwithstanding this, the court found that Shreve derived his title from Nelson and Koegel. This finding is not attacked. We cannot understand how the court found it, under the evidence, but it is not our province to make findings, nor to upset those that are unchallenged; and here is a finding which is not objected to, and at which no specification is pointed. It is therefore the fact, for the purposes of this review, that Nelson and Koegel were Shreve’s grantors. If Nelson and Koegel are estopped, it is sought to extend that estoppel to their grantee, Shreve. But, as I have above endeavored to set forth, I am of opinion that Nelson was estopped and Koegel was not. Nothing informs me what fractional interest in the Lightning Claim Shreve received from Nelson, or what from Koegel. If it be contended that Shreve is estopped as to his interest received from Nelson, who was estopped, I do not know that it will be urged that Shreve was estopped as to his interest that he received from Koegel, his grantor, who was not estopped. There is not enough light in the case to inform me either as to the facts or the contention of counsel on this point, and, as I am of opinion that the case should be sent back for a new trial upon the considerations already expressed, I record no further views upon the point at which I have arrived.
One more matter I must advert to. It is urged by respondent that Koegel’s and Nelson’s deeds contain the further covenant that it is intended to convey the title to the premises
I am of the opinion that the judgment should be reversed, and the cause remanded.