Stewart v. Gold & Copper Co.

82 P. 475 | Utah | 1905

STRAUP, J.

1. Appellant applied for patent to the Sabine lode mining claim. Eespondent, claiming to be the 'owner of the Panhandle, protested and adversed. The area of the two claims conflicted, and this action was brought to adjudicate these adverse claims.. Trial before the court resulted in findings and a judgment in favor .of plaintiff, respondent here. Appellant contends that the findings with respect to the location of the Panhandle, the discovery of a vein containing mineral, performance of assessment work, citizenship of Harrington, the locator, and especially the description of the area in conflict, are not supported by the evidence. We deem it unnecessary here to set forth what the record in detail shows as to the testimony and documentary evidence tending to support the findings. Suffice it to say that on examination of the record we are of opinion the evidence is sufficient to support the findings. Furthermore, as to the claim made that the finding describing the area in conflict lacks support, it conclusively is made to appear that the trial court had before it maps and drawings from the land office, properly identified and authenticated, which were admitted in evidence, and from which the boundaries of the two claims and the area in conflict were made to appear, but which maps and drawings are not brought here, and are therefore not before us. So that, as to this finding, tbe one most seriously complained of, whatever, if anything, there may be lacking by way of evidence to support the description as found, may well be presumed is contained and sufficiently made to appear by the said maps and drawings. What may seem uncertain and indefinite with respect to the evidence as to the description, the particular thing complained of, may well become certain and be made definite when the evidence is read in connection with 'the maps and drawings.

2. The Panhandle was located by Harrington, who conveyed 'to Stewart, the respondent. It is conceded that the evidence shows Stewart was a citizen; but it is claimed the evidence is wanting that Harrington was a citizen. It is said the proof of his citizenship rests entirely on hearsay. Conceding, without deciding, that hearsay testimony, although admitted without objection, is no legal evidence upon which a finding may rest, still it is now settled law that a location of a mining claim made by an alien is not void, but only voidable, and may be cured by his grant to a citizen, and that a location made by an alien is free from attack by any one except the government. (Snyder on Mines, vol. 1, secs. 263, 267; Lindley on Mines, vol. 1, secs. 233, 234; McKinley Min. Co. v. Alaska Min. Co., 183 U. S. 563, 22 Sup. Ct. 84, 46 L. Ed. 331; Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. 651, 38 L. Ed. 532.)

Not anything has been made to appear to us why this judgment should be reversed. It therefore is affirmed, with costs.

BAETCH, C. J., and McCAETT, J., concur.