88 P. 36 | Wyo. | 1906
The plaintiff in error made application at the United States Land Office for a patent to the Big Divide lode mining-claim. The defendants in error filed an adverse to such application, setting up that the mineral survey of the Big Divide lode took in certain portions of the Little Joe, Adelaide and Little Wonder lode claims, of which they claimed to be the owners, and within the time prescribed by statute brought this suit in support of their adverse claim in the District Court of Carbon County. To prove his record title, the plaintiff in error introduced in evidence a certificate of location of the Great Divide lode mining claim dated August 5, 1897, and recorded November 3, 1897; an amended certificate of location by himself and E. A. Rust of the same claim dated November 1, 1899, and recorded November 6 of the sarnie year; a certificate of location by L. S. Neice, F. A. Neice and Guy Neice of the Big Divide lode, which is said to be a re-location of the Great Divide, dated January 1, 1903, and recorded February 18, 1903. The rights acquired under the location by the Neices were acquired by purchase as appears from the deeds introduced in evidence conveying their interests to plaintiff in error. To prove record title in them the defendants in error introduced in
Assuming that the original and amended location certificates of the Great Divide were in accordance with the requirements of the statute, the application is to patent the Big Divide, a claim which had no existence until January 1, 1903, the date of its location. The certificate of location of the Big Divide by the Neices recites, “Beginning at corner No. 1, the ‘Big Divide’ claim is a re-location of the Great Divide claim (abandoned), said Big Divide lode claim using and appropriating stakes and original survey of the Great Divide lode claim (abandoned).” It appears that this location is of an abandoned claim and not an amendatory certificate to correct imperfections in the record title of a claim already in existence. Indeed, the Neices, so far as the record shows, were prior to their location of the Big Divide strangers to the title to the ground embraced within the limits of the Great Divide. By electing to patent the Big Divide, Slothower adopted its location certificate as the basis of and as the inception of his title. The introduction in evidence of the location certificates of the Great Divide was competent as showing the boundaries of the Big Divide by reference, but could not establish title to the ground in controversy antedating the location of the latter. The possessory title initiated by the Neices by their location of the Big Divide was what they conveyed to Slothower, and the title so conveyed was antagonistic to and destructive of any former title which was held by the latter. The recital in their certificate of location to the effect that it “is a re-location of the Great Divide (abandoned)” was an admission that the latter claim had once a legal existence, for there could be no abandonment when there was nothing to abandon. (Blain v. Wills, 20 Pac. Rep., 798.) The purchase of the outstanding title of the Neices
2. The question arises whether the defendants in error had acquired any possessory title under and by virtue of their claim of location at a prior date to the ground or any part thereof included within the boundaries of the Big Divide. Land upon which a valid mining location has been
The certificate of location of the Little Joe is fatally defective and void in that it fails to give “The length of the claim along the vein each way measured from the center of the discovery shaft,” or to mention the discovery shaft at all. These are statutory requirements (Sec. 2546, R. S. 1899), and the failure to so state renders the certificate void. (Sec. 2547, R. S. 1899.) The certificate, therefore, vested no title in the defendants in error and it was erroneously admitted in evidence.
It is urged that there is no sufficient tie or description of the Adelaide as required by Section 2546, Revised Statutes 1899; and that the certificate was not filed within the time required by statute. That section (Subdivision 6) provides that the certificate shall contain “A description of the claim by such designation of natural or fixed objects, or if upon ground surveyed by the United States system of land survey, by reference to section or quarter section corners, as shall identify the claim beyond question.” Section 2547 id. is as follows: “Any certificate of the location of a lode claim which shall not contain fully all the requirements named in the preceding section, together with such other description as shall identify the lode or claim with reasonable certainty, shall be void.”
The certificate of the Adelaide says that “It is situated in Battle Lake and Upper Platte Mining District, County of Carbon and State of Wyoming,” and, also, “Further described as laying west of the Little Wonder mining claim and south of the Little Giant mining claim.” It will be observed that the location certificate gives the name of the state, county and mining district within which the claims referred to as ties are located. Though the distances are not given, the direction of each is set forth; and whether adjoining or not, the intersection' of the corners so given would, so far as the certificate is concerned, be upon ground included in the Adelaide. The existence of a natural or fixed object within the meaning of the statute and the sufficiency of the description of the location of a mining claim with reference thereto, we think, are questions of fact to be determined like any other in the case. (Bonanza Con. Min. Co. v. Golden Head Min. Co., 80 Pac., 736.) The evidence was before the trial court and the certificate referred to other mining claims to which the Adelaide was tied. No evidence was offered by the plaintiff in error to show that these claims did not exist. A mining claim is a permanent monument, and when such claim is mentioned in a location certificate it will be so considered unless the contrary appears. (Riste v. Morton et al., 49 Pac., 656; Hammer v. Garfield M. & M. Co., 130 U. S., 291.) The objection that the certificate was not recorded within sixty days
No objection was interposed to the admission of the location certificate of the Little Wonder on the ground that it failed to comply with the provisions of the statute, but it is urged that all of these claims included ground covered by the Big Divide location, and that the ground included in such overlapping portions was not open to location at the time the defendants in error initiated their claims. In so far as the Little Joe is concerned, the location certificate being void, no rights were acquired by it and the question is narrowed down to a consideration of the alleged conflict between the Little Wonder and the Adelaide with the Big Divide. It is not seriouly contended that the location of the Great Divide was up to the time of its abandonment invalid for any reason, but it is claimed by defendants in error that its south boundary was originally marked as it appears in the official survey for entry. The Big Divide as shown by the plat of this survey runs lengthwise N. 740 56' W. The Little Wonder as also shown by the same plat runs N. 8o° W., and its* north side laps over on the south part of the Big Divide at the west end 57-88 feet and the east end 206.39 feet. The plat also shows that the lap on the east end of the Great Divide is 163.44 feet and the north boundary line of the Little Wonder crosses and runs out of the south boundary of the Great Divide at the point marked C. The east end line of the Adelaide overlaps and takes in part of the west end of both the original Great Divide and the Big Divide in the form of a triangle. The contention is that the Big Divide as surveyed for entry is identical with the Great Divide as originally located and of which it is a re
4. It is also urged that the court erred in admitting in evidence the deed from Slothower to the Investors’ Mining and Prospecting Company. This deed showed that Slothower had parted title with the property involved in this case. It, however, appears to have been executed pending proceedings for a patent and was not such a parting of title as to have déprived him of the right to maintain this suit. He was a party to the proceeding in the land office and the adverse was against the title he was attempting to establish in such proceeding. A transfer of title by an applicant for a patent during the pendency of the application has the effect of making him a trustee and as such he holds the title only for the purposes of such application, and when patent is issued the title immediately reverts to his grantee. It was error to have admitted the deed in evidence, but we think, in view of the decree which excluded from defendants in error the right to possession of certain parts of the ground in dispute, to-wit: A, B, C, as shown by the plat, and which could not have been done upon any theory as to the effect of the deed other than as stated above, it seems to have worked no prejudice to plaintiff in error.