105 P. 77 | Mont. | 1909
delivered the opinion of the court.
The defendant, claiming to be the owner of mining ground situated in Summit Valley unorganized mining district, in Silver Bow county, under locations designated as the Vienna and Croatian quartz lodes, made his applications to the United States for patents therefor through the land office at Helena. The plaintiff, claiming a prior right to portions of the ground under each of three locations designated as the Walstadde, Gold Star, and Black Cloud, brought this action to determine the right to the possession of the portions in controversy in pursuance of the requirements of the federal statute. The defendant’s claims were located on August 6, 1902, and both declaratory statements were recorded on October 4th. Subsequently two amended locations for each claim were made and recorded, the last being recorded on February 26 and 28, 1907, respectively. The purpose of the amendments was to supply with more definiteness the recitals required by the Montana statute. The plaintiff’s locations were all made on November 5, 1891. The declaratory statements were recorded on November 18th, in the following order, as shown by the file-marks of the clerk and recorder:
The evidence introduced by the parties was confined to two issues made by the pleadings, to-wit: Whether the acts done by the p1a.int.i-ff in the way of marking the boundaries, and the references made in the declaratory statements to natural objects or permanent monuments to identify the claims, were a sufficient compliance with the federal statute (U. S. Comp. Stats. 1901, see. 2324) to render his locations valid; and whether they were subject to forfeiture and relocation by the defendant because the required representation work had not been done upon them for the year 1901. The subjoined plat is explanatory of the contentions of the parties.
The plaintiff’s claims lie easterly and westerly along a ridge, or backbone, on the west slope of the mountain. The general course of the vein in the Walstadde is indicated by the line of the tunnel, and is supposed to traverse all of the claims. Defendant’s claims lie on the southerly slope of the ridge. All the representation work done by plaintiff prior to the location of defendant’s claims had been done through a shaft and drift upon the Walstadde, near the point marked “Disc. Shaft”; the purpose being, as he stated, to develop and exploit all the claims from this point as a contiguous group. After this time he converted the drift into a tunnel by driving it to the surface toward the west. The shaft has since then been used for the purpose of ventilation only. At the time of the trial the tunnel had been •driven into the mountain toward the east, to the extent of several hundred feet. With reference to the location of plaintiff’s •claims after a discovery had been made upon each of them, his
The court did not make formal findings. In the judgment-roll and the decree we find the following under the designation of' “Court’s Decision”: “In this action, heretofore tried by the court, the court finds for the plaintiff for his Walstadde lode claim, for all portions of his Gold Star and Black Cloud lode claims not in conflict with defendant’s claims, and for that portion of his Black Cloud lode claim in conflict with defend
It is apparent from the decision that the court found in favor •of the plaintiff upon all the issues, so far as concerns the "Wal.stadde claim as well as the Black Cloud, except as to the portion in conflict between the latter and the Croatian west of the west end line of the Black Cloud, placed as indicated by the recitals in the Black Cloud declaratory statement, and that, as to the ■Gold Star, it found in favor of the defendant. This conclusion necessarily implied a finding against the defendant upon his plea of forfeiture. The question submitted to us is whether the •evidence justifies the findings in so far as they affect the validity of the Gold Star location.
The theory upon which the court proceeded as to the "Waist add.e was that the boundary monuments had disappeared, and that the testimony of the plaintiff as to their original location was not altogether satisfactory, and hence that the descriptive •calls of distances in the declaratory statement were so far controlling that this claim must be measured along the vein for the full length of 1,500 feet. As to the courses to be observed, the theory was that the terms “easterly,” “westerly,” and ■“north,” and “south” were to be construed as denoting any •course nearer to the east and west, etc., than to the other cardinal points of the compass, and that in fixing them the surveyor properly took into consideration the course of the vein as stated :in the declaratory statements. Having adopted the theory as to the distances, and assuming that the "Walstadde was located first in order, the result necessarily was that the Gold Star location was void because the discovery made for it was within the
We think the theory adopted by the court as to the proper mode of determining the boundaries was, speaking generally, correct, and counsel do not seem to question it. The statute in force in this state at the time the plaintiff’s locations were made did not require the declaratory statement or notice of location recorded to contain a description of the claim by metes and bounds. (Comp. Stats. 1887, Fifth Div., sec. 1477; Upton v. Larkin, 7 Mont. 449, 17 Pac. 728.) Yet, where it does contain such a description, it is safer to accept the sworn statements of the claimant, made contemporaneously with the acts done by him, as to what he did, rather than his mere recollection of them many years afterward. And this is not an unreasonable rule, because the presumption is that statements so made at or near the time of the location, and when there was no controversy over the right involved, are more likely to be true. In Upton v. Larkin, supra, the locator, however, was held not conclusively bound by the monuments described in his statement. There the statement referred to pine trees as the monuments
But in our opinion the court erred in determining the order in which the locations were made, and thus worked out an erroneous result in the application of the rule. There is no controversy in the evidence that the Black Cloud location was made first, the Gold Star second, and. the Walstadde last. The -west end line of the first was properly fixed at 500 feet along the vein west of the discovery shaft according to the first call in the statement. This was correct; otherwise, this claim would have included ground not covered by it as originally located. The same course should have been pursued with the Gold Star.. The evidence showed that the west end line was run through the center of the discovery shaft, as recited in the statement-
Upon the evidence, the finding that there was no forfeiture as to the Walstadde in 1901 was proper. The burden was upon the defendant to establish his allegation on this subject by clear and convincing evidence. (Strasburger v. Beecher, 20 Mont. 143, 49 Pac. 740; Copper Mt. Min. Co. v. Butte & C. Co., 39 Mont. 487, 104 Pac. 540.) This, in our opinion, he failed to do. The evidence was directed to the inquiry whether any work was done upon the Walstadde through the shaft and drift during 1901, and whether, if done, it tended to develop the Gold Star and Black Cloud as a part of a consolidated claim or contiguous group. The court answered both inquiries in the affirmative. As to the Gold Star, the finding was clearly correct. Since the Black Cloud is not contiguous to the Gold Star, it might well be contended that this work did not represent it; but be this as it may, the Croatian location, being void because not based upon a valid discovery, it is immaterial for present.purposes whether the Black Cloud had been represented or not. It could be held forfeited only upon the theory that the Croatian location was valid, which, as we have seen, was not the case.
The point is made by counsel for defendant that there is no reference in the declaratory statement of the Gold Star to a
Modified.