Plaintiffs claim to be the owners of the Haphazzard quartz lode mining claim, located, as they allege in their complaint, on the 16th day of September, 1890. The said claim is situated in Montana (unorganized) mining district, Meagher county. The complaint alleges that the defendants claim to be the owners of the Safety quartz lode mining claim, situated in the same mining district; that on the 31st day of January, 1891, the defendants made application to the United States land office at Helena, Mont., to obtain a patent to said Safety lode claim; that the premises covered and embraced within and by the said Safety lode application cross and overlap all of said Haphazzard lode, and include 6.02 acres of the said Haphazzard lode claim; that plaintiffs, within the time required by law, filed their adverse claim to the premises sought to be entered and patented under the name of the “Safety Lode. ’ ’ This suit is brought to try the right to the title and possession of the premises in conflict and dispute. The case was tried to a jury. Certain findings of fact were submitted to and returned by the jury. There was also a general verdict
Appellants assign as error that finding No. 2 is not warranted by the evidence; in fact, they say that said finding is absolutely contrary to the evidence. Finding No. 2 is as follows:
“Did Walsh and Sweeney enter upon a portion of the unappropriated public lands of the United States prior to the 15th day of September, 1890, and on said 15th day of September, 1890, discover thereon a lead or lode with at least one well-defined wall, and containing rock in place bearing valuable mineral deposits of silver, lead, and manganese? Answer. No. ’ ’
As to whether a vein was discovered on the Haphazzard claim, and when such discovery was made, P. T. Walsh testified as follows: My name is P. T. Walsh. I reside in Neihart. My business is mining. I have been 15 years in that business. My age is 37. I was born in California, and am a citizen of the United States. I am acquainted with the Haphazzard mining claim. 1 am one of the locators of it. I first became acquainted with it when we located it. I did some work on the Haphazzard ground before it was located as the Haphazzard. I went there the 22d or 23d of August, 1890. 1 worked about one month after that time. I helped around there a little. I also did a little mining work there. The shaft was on the northeast part of the claim. I began work in that shaft the 22d or 23d of August, and worked about one month. I worked there myself until the night of September 15, 1890. On that night I was working on the upper shaft. Two men were at work there. About 10 o’clock I went up there, and went down in the shaft, and dug it deeper. The more we dug the more we found croppings of the lead. I think we sunk three feet that night, — -a narrow trench on this lead. This lead was lé inches wide. On the east of it the formation was granite. With reference to the creek, the east side is the upper side of the shaft. I think we were down é7 feet when
Patrick Sweeney testifies as follows: “We struck lead matter in the shaft about 15 feet down. This lead was struck in bedrock, composed, I think, of granite. I do not know' what the lead contained, but it was of such a nature that it could be distinguished from the surrounding rock. 1 was not in the mine at the time the lead was struck. Mr. Walsh was there. We both went down in the shaft. Mr. Walsh was there sinking the shaft. That night I should judge we sunk three feet further. I think the vein was from 12 to 15 inches wide. The work that we were doing was sinldng in the shaft. After the discovery the shaft was timbered up. I do not know exactly the course or dip of the lead. It came in the shaft from the west,- — from the hill side. I stayed at the shaft that night. I
Stephen Pierce testifies as follows: “ I have worked in the upper shaft on the ground. I worked there September 16th and 17th. At that time the shaft was 40 or 50 feet deep, I should judge. I went to the bottom of that shaft. On the east side of the shaft there was granite. In the shaft lay a ledge of mineral containing manganese, talc, and lead matter. The course of this ledge was north and south. It dips or pitches to the west. The shaft had been sunk some 5 feet on the ledge, and at the upper side of the ledge about 3i¿ feet. I measured this ledge. It was about 1 foot wide. It contained some manganese, talc, and quartz. The talc was under the ledge at the footwall. This wall was on the east. The ledge carries silver, lead, iron, and I saw some galena there. I am acquainted with the mines of Neihart. The dip of the mines at that place is generally towards the west. I have been engaged in mining in Neihart ever since I came to the town. As these mines increase in depth the character of the same improves. ’ ’
Thomas Starboard testifies as follows: “L reside in Neihai’t. My business is mining. I have been engaged in mining since 1870, 21 years or more ago. I am engaged in mining at Neihart. I am foreman in the Monarch mine there. 1 know the Haphazzard shaft. I was there in April, 1891. I went into it at that time. I went to the bottom. The shaft is about 40 or 50 feet deep. The shaft was timbered to about 5 or 6 feet from the bottom. I saw the lead in the south end of the shaft, 6 or 8 feet up from the bottom. I saw the footwall. I saw the wall on each side of the vein. The vein contains manganese and quartz, with oxidized iron and’ talc. It was very fair lead matter. The vein pitched to the west. The strike or course of the vein is from northwest to southeast. There was sufficient indication, in my judgment, as a miner, to justify
This evidence, we think, shows that the discovery was made on this Haphazzard claim on the 15th of September, 1890. A close inspection of the record fails to show that this evidence is contradicted in any respect whatever. We are unable to discover any conflict in the evidence as to when this discovery was made. It is not disputed that a discovery of a vein or lead was made on this claim by plaintiffs; but the respondents contend that it was not made on or before the 15th day of September, 1890. We find no evidence to sustain this contention of the respondents. This is not a question of the conflict of evidence. The contention of appellants is that there was no evidence to justify the finding of the jury under consideration. We think the position of appellants is amply sustained by the record. As this finding is not supported by the evidence, but is directly contrary to all the evidence in the case, we think the court erred in approving it, and denying a motion for a new trial.
The appellants assign as error the giving of instruction No. 8, which is as follows : ‘ ‘ The defendants also insist that, even should it be found from the evidence that plaintiffs’ location was otherwise sufficient, as based upon a sufficient discovery of a vein whose apex lay within their ground, yet it is void because it was made in willful and fraudulent violation of the law as to surface ground. On this point you are instructed that the act of congress provides that the locator take no more than 1,500 feet in length, nor more than 300 feet in width, on each side of the vein. This contemplates a location to be made nearly parallel with the line of the vein, and if a locator knowing the line and course of his vein, and willfully, and with a fraudulent purpose, locate his claim in disregard of such line and course of the vein, and establish its length, not along the vein, but across it, to an excess of several hundred feet or more beyond the 300-foot limit allowed by congress for the
There is no allegation in the pleadings that plaintiffs in locating the Haphazzard claim committed, or attempted to commit, any fraud against the United States. There was no evidence introduced to show anything of the kind. If evidence had been introduced for that purpose, we think it would have been error, as there is no issue made by the pleadings that would render such evidence admissible. We think it was error to give instructions that were not warranted by the pleadings and evidence. (Brownell v. McCormick, 7 Mont. 12; Kelly v. Cable Co., 7 Mont. 70.
On account of the foregoing errors the order appealed from is reversed, and cause remanded for new trial.
Reversed.