20 Mont. 143 | Mont. | 1897
We will first consider the assignment of error-that the evidence is insufficient to justify the findings and decision of the court. The respondent argues that this question is not before this court for review, because the appellants’ specifications consist of averments and conclusions of counsel as to what the evidence shows, and that such conclusions are-mere statements opposed to the findings of the court, and that, therefore, section 1173 of the Code of Civil Procedure has not. been complied with. But we are of the opinion that there is • a sufficient assignment or specification of the particulars in-which the evidence is insufficient to justify the finding and decision of the court to the effect that the plaintiffs did not perform the requisite amount of labor upon the Lake Superior-mining claim from the time of the location thereof, in the year • 1882, to the time of the commencement of this suit.
The plaintiffs’ specification in this respect was as follows :: “The evidence was insufficient to prove, and the defendant.
The case of First National Bank v. Roberts, 9 Mont. 323, 23 Pac. 718, disapproved of specifications which declared that the evidence showed certain enumerated facts or conclusions which were contrary to what the jury found. The court held that a specification should point out the variance between the facts found by the jury and the evidence, and that there should be a specification that a iact found by the jury is not sustained by. the evidence, with the particulars in which the evidence is insufficient to justify the finding. We have no hesitation in affirming what the court there said. Furthermore, much that
Believing, therefore, that the particular specification was sufficient, we shall consider the evidence bearing upon that point in the case.
The great weight of the evidence is that one Edward Hayes made a valid discovery and location of the Lake Superior claim on June 23, 1882, and filed notice of location in the office of the County Becorder of Gallatin county on August 31, 1882. Experienced miners testified that Hayes discovered mineral, galena and pyrites of copper, where he put his discovery stake, on the westerly part of the Lake Superior, near the center; that, in their opinion, the mineral rock was in place; that Hayes was working on the claim in June, 1882, in a cut 10 or 12 feet long, and extracted some two or three hundred pounds of ore about that time, which was from rock in in place. It also appears that Hayes sufficiently and properly
The plaintiffs introduced an original affidavit of Elias Sperling one of the plaintiffs herein, sworn to on September 22, 1884, and tiled on September 27, 1884, with the recorder of the New World mining district, to the effect that at least §100 wortn of work had been performed on the Lake Superior lode claim between August 1 and September 1, 1884, and that said expenditure was made by Elias Sperling and others in interest. Plaintiffs also read in evidence another affidavit of Elias Sperling, sworn to on September 22, 1884, to the effect that §100 worth of work had been performed on the Lake Superior and a like amount on other claims in 1884. These affidavits were admitted without objection. Plaintiffs also read a deposition of Elias Sperling, one of the plaintiffs in this suit. Sperling testified that he had known the Lake Superior claim since 1882, and that at that time he saw improvements made on the ground by an open, deep cut, about 20 feet long, near the south end of the claim, and that he did the representation work on the claim in the years 1883, 1884 and 1885; that in 1883 he did §125 worth of work on it on the north end of the claim, in tunneling; that in 1884 he tunneled near the south end of the claim to the value of §225, and in 1885 also tunneled near the south end.
Plaintiffs also offered in evidence the deposition of one Z. H. Daniels, who testified that he was very familiar with the Lake Superior mining claim, and had been since 1883, and that in September, 1884, he had found digging done on different places in that claim that was not done in 1883, when he saw the claim.
James Sweeney, a witness for plaintiffs, testified that he did the assessment work on the Lake Superior claim in 1885 for Elias Sperling; that such work was done in an open cut, and
Tappan also testified that he found several cuts and tunnels on the claim, — some old work, others more recently made. He found one cut (No. 1), 14 feet long, caved in, and about one-half of it outside the north line of the Lake Superior. He put the value of the work done at $720, including 22 feet of a tunnel which adverse claimants built.
On behalf of defendants, a witness named Mather swore that, a few days after his first location, Hayes, the original locator of the Lake Superior claim, moved his location notice north from where it was at first, and put it on another stake, about five or six hundred feet north of the first discovery, giving as a reason for doing so that he thought it was better ground in the latter- place, and that the point where this second notice was put is about eighty or ninety feet north of the north line of the Lake Superior.
A witness for defendants, named Rock, testified that he was on the ground in controversy in 1884, and that he did not see any mining improvements' done there that year; that a man named Langsdon did some work for the Maggie B. people, and that the Maggie B. -joined the Homestake lode on the north, just where the Silver Queen is.
Aaron H. Davis, another witness for defendant, testified that he knew the ground in controversy in 1884; that he then saw very little improvement on it in October of that year; that there were some slight cuts on the ground, but he saw nobody at work on any of these cuts in 1884. On cross-examination the witness admitted that there was quite a cut on the ground in one tunnel, and that a couple of small sets of timber had been put in. He further said that he did not see Elias Sperling on the Lake Superior claim in 1884, and that he was on the ground twice that fall, but did not go near it again until he went to relocate it (witness being one of the locators of the Silver Queen).
Peter H. Branser, another witness for defendant, testified that he knew the Lake Superior claim, and saw Hayes, the original locator of the claim, about the time he located it, in 1882; that in July, August, and September, 1884, he was on the Lake Superior ground frequently, but did not see anybody at work there during those months; that in 1883 he knew that a tunnel on the east end of the claim marked “Tunnel No. 5,” was made by Jack Burke; that this work done by Burke was at the south end of the claim, but that in 1884, although he was camped only a short distance from the claim, he saw no one at work there; that he knew Elias Sperling, but did not see him in 1884; and that if Sperling had been at work on that ground for any considerable length of time during August and September, 1884, witness believed he would have seen him.
The testimony of this witness would be entitled to great
In the deposition referred to, the witness testified that there was mineral-bearing rock at the last point of discovery by Hayes in 1882; while on this trial witness stated that he did not see any ore that he would call ‘ ‘ore in place,5 ’ and that he must have been mistaken when he testified by deposition some time before. As this question of discovery was a material issue in the case, the conflicting answers of the witness weakened his whole testimony.
Hamilton Kearns, another witness for the defendant, testified that he knew the ground in controversy in 1882, and has known it since; that there was a tunnel and a cut with three sets of timbers in it, which had been made by Burke, who worked for appellants (plaintiffs) in 1883 on the Forget-Me-Not ground, which adjoined the Lake Superior on the south, and not on the Lake Superior ground; that in 1883 he joked Elias Sperling about doing work off of the Lake Superior ground, and that in 1884 he did not see Elias Sperling at work on the ground; that there never was any work done on this tunnel since the sets of timbers -were put in; and that, if there had been any tunnel run on the ground of the Lake Superior claim in 1884, he would have been likely to have seen it. On cross-examination this withess admitted that he had testified in a deposition at Cooke City, some time • before the trial of this case, to the effect that he did not know of his own personal knowledge of any representation on the Lake Superior claim during 1884, and that he had further testified that in 1883 Sperling had sent some men to represent the Lake Superior, but that they had gone on the Forget-Me-Not ground, and run an open cut.
‘ ‘A forfeiture of a mining claim cannot be established except upon clear and convincing proof of the failure of the locators or owners of the claim to have work done or improvements made to the amount required by law. ’ ’ (Book v. Mining Co. , 58 Fed. 106.)
The positive testimony of Sperling that he was on the claim and did the work in 1884 is not overcome by the mere statements of the witnesses, who were on adjoining premises at divers times, that they did not see him on the Lake Superior claim in 1884, and did not believe he was there. Tappan, the mineral' surveyor, saw him there in 1884; and Daniels, an experienced miner, says that in September, 1884, he saw digging within the limits of the claim, that had not been done when he was there in 1883.
That the representation work was done for 1883 appears not only by plaintiffs’ witnesses, but by the statement of one of defendant’s witnesses (Kearns), who admitted that Sperling had sent men to represent the Lake Superior in 1883, but that they had, through mistake, done work on the Forget-Me-Not claim. The deputy surveyor, however, straightens this point out by testifying that the easterly line of the Lake Superior went directly over the edge of tunnel No. 5, the cut for the entrance to the tunnel being off the claim, and within the Forget-Me-Not limits. Conceding the fact to be that the work was partly off the claim, still, if it was done to develop the Lake Superior claim, and for the benefit of the Lake Superior location, as it clearly was, it may be properly considered as annual assessment work on the Lake Superior claim. (Hull v. Kearny (Colo. Sup.) 33 Pac. 373; Smelting Co. v. Kemp, 104 U. S. 636; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301; Book v. Mining Co., 58 Fed. 106.)
The burden of showing nonrepresentation is upon the party alleging it. Colemun v. Curtis, 12 Montana 301, 30 Pac. 266. The defendant therefore assumed to prove that plaintiffs or their predecessors did not do the requisite amount of
Appellants have raised several other questions, pertaining, principally, to the admissibility of certain testimony. A witness' was asked by the defendant if he knew what purported to be, and what was indicated by marks and monuments as, the discovery of the Lake Superior quartz lode mining claim, and, if so, what was the mark indicating the point of discovery of such claim. The witness to whom this question was put was a miner, and had known the ground in controversy since 1887, and said that he assisted in surveying the boundaries of the Lake Superior in that year. The object of this question was to prove that the discovery of the Lake Superior was north of the north side line of the claim. The court overruled the objection, and the witness answered by saying that he did observe a post at the discovery cut, and that it was a few feet north of the north side line of the Lake Superior, as surveyed by the surveyor. The argument of the appellants is that the ruling was erroneous, because the witness had no knowledge of the condition of the claim prior to August, 1887, and that any answer that he might make would be necessarily hearsay. But we think the ruling of the court was correct. We see no objection to permitting a miner to testify what purported to be the discovery hole or cut of a mining claim, if he can intelligently answer such a question, by reason of his familiarity with the marks and monuments which indicate the discovery on the claim.
We do not think it necessary to pass upon other objections made by the appellants. The j údgment is reversed, and the cause remanded for a new trial.
Reversed and Remanded.