224 P. 272 | Mont. | 1924
delivered the opinion of the court.
In his complaint plaintiff alleges that he is, and at the date of the trespass was, the owner and in possession of the Flensburg and Flensburg No. 2 quartz lode mining claims; that in August, 1922, the defendant wrongfully entered upon the claims and willfully cut and removed therefrom 500 trees of the value of $2,500. The answer denies that plaintiff is or ever was the owner of either of the mining claims, and then sets forth that defendant is the owner of the Theodore Roosevelt claim, and that Thomas Westgard and his associates or successors in interest, not including the plaintiff, are the owners of the Chandler claim; that all of the trees cut and removed by defendant were from the Roosevelt claim excepting twelve or thirteen, which were inadvertently cut but not removed from the Chandler claim. The reply is in effect a general denial of all the new matter pleaded in the answer. The trial of the cause resulted in a judgment in favor of the plaintiff, and defendant has appealed therefrom and has attempted to appeal from an order denying the motion for a new trial. The order is not appealable. (Sec. 9745, Rev. Codes 1921.)
Errors are predicated upon the giving of instructions 6, 8, 9 and 13; but the record fails to disclose that defendant objected to any of the instructions at the time they were settled, and by express statute (sec. 9349) we are precluded from reviewing these alleged errors. (Yergy v. Helena Light & Ry. Co., 39 Mont. 213, 18 Ann. Cas. 1201, 102 Pac. 310; Poor v. Madison River Power Co., 41 Mont. 236, 108 Pac. 645; Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673; Lundquist v. Jennison, 66 Mont. 516, 214 Pac. 67.)
Defendant contends that Bergh did not have any interest in the Flensburg claim at the time of his death, hence the administrator’s deed did not convey any interest to plaintiff. The only justification for this contention is found in the deductions which defendant makes from the record (a) that Bergh abandoned the Flensburg claim in 1902, or (b) if he did not, the claim was forfeited for failure to do the annual representation work for 1916.
It appears from their brief that counsel for defendant evolved the theory that after Damm’s death Bergh conceived the notion that he would eliminate any claim which the heirs of Damm might have and secure the ground covered by the Flensburg claim for himself alone, and to that end procured Lend to locate the ground as the New Flensburg claim and then purchased that claim, thereby abandoning the original location. However attractive that theory may appear to defendant, it is lacking in one essential element: It is not supported by the evidence.
Upon the trial, which occurred late in May, 1923, plaintiff testified: “Gust Damm is dead. He has been dead for over twenty years.” This is the only evidence touching upon the subject, and from it alone no one can say whether Damm died before or after Lend made his location on June 11, 1902. If the New Flensburg claim covers the same ground as the Flens
The Flensburg No. 2 claim lies on the left-hand side of Carpenter Creek, about 1,500 feet from the creek and about one and a 'half miles above the mouth of Smow Creek. It extends in a northerly and southerly direction along the course of the vein, and the adjoining claims are the New Flensburg on the north and the Minneapolis on the east.
Considering the descriptions of the three claims together, we learn that the New Flensburg claim is about six miles north of Neihart and immediately north of the Flensburg No. 2, which latter claim is about half a mile above the Flensburg claim somewhere along the course of Carpenter Creek. Further than this the record furnishes us no information. Neither the description of the Chandler claim nor the description of the Roosevelt claim aids in the least, and from the descriptions above it would be the wildest guess to say that the New Flensburg claim includes any part of the ground covered by the Flensburg claim; and, if it does not, Bergh’s purchase of the New Flensburg cannot raise any inference that by such act he intended to abandon the Flensburg claim.
It is a general rule that abandonment will not be presumed; it must be proved, and the burden of proof is upon the party who asserts it. Furthermore, abandonment, in order to be available, must be claimed by a subsequent locator who is qualified to make a valid location. (1 Snyder on Mines, see. 513.)
Notwithstanding the purchase from Lend, if Bergh did not intend to abandon the Flensburg location, but remained on the claim doing the necessary representation work and asserting his ownership in good faith, abandonment did not take place (Omar v. Soper, 11 Colo. 380, 7 Am. St. Rep. 246, 18 Pac. 443); and the fact, if it be a fact, that Lend located the ground as abandoned does not even tend to prove that it was open to entry. (McGinnis v. Egbert, 8 Colo. 41, 5 Pac. 652.)
Unless the evidence touching the subject is such that reason- able men cannot differ as to the conclusion to be drawn from it, the question of abandonment is one of fact for de
Upon the question of forfeiture the utmost for which defend ant can contend is that the evidence is conflicting. Plaintiff’s witnesses testified that Bergh did the necessary representation work for 1916/while witnesses for defendant testified that he did not. The jury resolved the conflict in favor of the plaintiff, and the trial court approved the finding by denying a new trial. In the absence of any showing of abusé of discretion by the trial court, this court will not interfere. (Love v. McDonnell, 65 Mont. 482, 211 Pac. 211; Rousselle v. Cramer, 65 Mont. 537, 212 Pac. 294.)
Upon the question of the number and value of the trees re- moved by the defendant from the Flensburg claim the evidence likewise is conflicting. The testimony offered by the plaintiff would justify a finding that the actual detriment was $900 or more, while the evidence introduced by the defendant
The verdict returned reads as follows: “"We, the jury in the above-entitled action, find for the plaintiff and assess his damages at twenty-seven hundred dollars ($2,700).” If this verdict is in effect a finding that $2,700 is the measure of compensation for the actual detriment suffered by the plaintiff, there is merit to defendant’s contention that the evidence does not warrant it. But a verdict is not to be construed technically; iit is to be given such a reasonable construction as will carry into effect the obvious intention of the jury, •and to ascertain that intention reference may be had to the pleadings, the evidence and the instructions of the court. (Consolidated, G. & S. Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152.) By its instruction No. 13 the court directed the jury, if they found for the plaintiff, to determine the actual detriment suffered by him and then treble that amount as the damages to be written into the verdict, unless they found that the trespass was casual and involuntary or committed under the belief that the land from which the trees were removed belonged to defendant, in which event the verdict should be for the amount of actual detriment only. That instruction became the law of the case, binding upon the jury and conclusive upon the defendant, since it was not objected
Finally, it is argued that unless the trespass was willful, the plaintiff was not entitled to recover treble damages; but this contention was waived by the failure to object to instruction No. 13 referred to above.
In passing, we may observe that counsel for defendant err in assuming that this action is brought under the provisions of section 9476, Revised Codes of 1921, a statute substantially the same as the one considered in McDonald v. Montana Wood Co., 14 Mont. 88, 43 Am. St. Rep. 616, 35 Pac. 668. This action is predicated upon the provisions of section 8696, a statute materially different from section 9476, and one which was not in force in this state at the time the McDonald Case was decided.
We find no error in the record. The attempted appeal from the order denying a new trial is dismissed and the judgment is affirmed.
Affirmed.