No. 555 | Utah | Apr 27, 1895
Without going into a statement of the facts, we may say that the record presents two questions for our determination on this appeal, and no more. They are: First.. ■Can the locator of a quartz mining claim, who has allowed his location to lapse by a failure to perform the necessary
The firsi question arises wholly upon the construction of section 2324, Rev. St. D. S. This section,'after pro-' viding that a certain amount of work shall be performed annually upon each mining location, provides: “Dpon a failure to comply with the foregoing conditions of annual •expenditure the claim dr mine upon which such failure •occurred, shall be open to relocation in the same manner •as if no location of the same had ever been made; provided, that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location/’
We have been referred to no decision of any court that has decided the question here presented. The right of a locator to make a new location upon mining ground, after his first location has lapsed, is recognized in the case of Hunt v. Patchin, 35 F. 816" court="U.S. Cir. Ct." date_filed="1888-06-08" href="https://app.midpage.ai/document/hunt-v-patchin-8126801?utm_source=webapp" opinion_id="8126801">35 Fed. 816; and in Copp, U. S. Min. Laws p. 300, it is declared that a prior locator has such right. See, also, 15 Am. & Eng. Enc. Law, p. 551. We fail to see any reason why such right should be denied. The fact that a prior locator, after his right has lapsed, may renew it by resuming work, would appear to be a favor or right granted to such prior locator, but, to give the proviso above quoted the effect claimed by appellant, would be to deny to such prior locator a substantial right .allowed to strangers. In other words, such a construction, while it would allow to a prior locator the right to resume work, would destroy his right to make a new location. We do not think the proviso to the act should be construed to mean anything more than that a prior locator,
The second question is largely one of fact. There was-proof tending to show that on the day that Durkee made his location, to wit, January 1, 1887, he and his assistant in addition to the discovery monument, on which was placed the notice of location, erected a monument or stake at each of the three corners of the claim, and also placed a monument at the center of each end line. At the remaining corner no stake or monument was placed until the 17th of January, 1887, being the day on which plaintiff made the location under which he claims. The court below held that the claim was properly located and marked. So far as there was a conflict in the evidence,, we cannot disturb- the finding of the trial court. Its opportunities for coming to a correct conclusion were certainly better than ours. Assuming, therefore, that three corners, the center of two end lines, and the point of discovery were appropriately marked, the question arises is such marking, of necessity and as matter of law, insufficient? We think not. The statute is: “ The location must be distinctly marked on the ground so that its boundaries can be readily traced.” Eev. St. 17. S. § 232i. It will be observed that the statute nowhere requires that the boundaries be marked. The requirement is that the location be marked so the boundaries can be traced. We think that where the notice of location gives the-length and breadth of the claim from the discovery monument, and three corners are properly marked, and the centers of both end lines are also properly marked, there-ought to be no difficulty in tracing the entire boundary, under ordinary circumstances. At any rate there is nothing in this case to indicate that it could not be easily