North Noonday Mining Co. v. Orient Mining Co.

• Citation: 1 F. 522
• Parties: THE NORTH NOONDAY MINING CO. v. THE ORIENT MINING CO.
• Decision Date: 04 March 1880
• Court: D. California

1 F. 522

THE NORTH NOONDAY MINING CO. v. THE ORIENT MINING CO.

United States Circuit Court, D. California.

March 4, 1880

[Copyrighted Material Omitted]

Stewart Vanclief & Herrin, for plaintiff.

R. M Clark and George B. Merrill, for defendant.

This was an action in the nature of an action of trespass upon a lode mining claim, in the Bodie mining district, California, in which the defendant pleaded title to the locus in quo.

The case was removed from the state court to the circuit court of the United States, where it was tried by a jury.

SAWYER J.,

(in charging jury.) Gentlemen of the jury, I congratulate you that we are approaching the conclusion of this trial. It has run through many days, but has not been without interest.

The questions that have been presented are many, and some of them difficult; but the case has been thoroughly prepared. It has been zealously, exhaustively, and ably tried and argued on both sides. Whatever great ability, great zeal, thorough preparation, and a thorough knowledge of the subject is able to contribute, has been contributed to explain and illustrate this case. Science has also been called into exercise. You have had a glass model here, which shows you the internal condition of these mines. You have had another model which exhibits to your view the shafts, drifts, cross-cuts, veins and their connections, in their proper location, and illustrates to you all the workings of the mines. You have had diagrams, also, exhibiting the same workings in that form, and everything, indeed, which could be desired to throw light on the subject, has been prepared and arranged and presented for your consideration and the consideration of the court.

Counsel having ably discharged their duty, it now devolves on the court to state to you the law governing this case; and then it will be your duty, gentlemen, and your province, to determine the facts. The questions of fact are for you to determine; the weight to be given to the evidence, the credibility to be given to the witnesses; and everything relating to a disputed question of fact is for your sole consideration and determination.

If I state the testimony, I shall only do it for the purpose of calling your attention to it and stating its tendency; but I shall not go over it fully. If I intimate an opinion on a question of fact, you are not to be governed by it, unless it corresponds with your own ideas as to what the facts are. If I make a mistake in stating the testimony, or alluding to a fact, you will correct it by your own recollection and judgment. I do not intend to express an opinion on the questions of fact, where the testimony is in conflict. I shall state to you the law which governs this case, and it is your duty to take the law from the court.

There are questions here that are new and have never been determined before, so far as I am aware. Some of them, as stated before, are difficult; some I may not be entirely clear about; but I have reached certain conclusions on the questions of law that have been so ably argued, and those I shall state to you so far as I deem them applicable to the case, and you will take them from the court and be governed accordingly. Whether right or wrong, it is your duty to act on them as given by the court. If the court makes a mistake, or an error of law, it is known where that error lies. It can be re-examined by the court on a motion for a new trial; or it can be taken to a higher tribunal, where the error will be corrected. But if you disregard the law as given to you by the court, and commit an error, it cannot be known on what error you acted. Therefore, there is no means of correcting your errors of law; but errors of fact may, perhaps, be corrected. You will, therefore, regard strictly the law as given you by the court, but you yourselves will determine the facts of the case.

Counsel on one side have presented a large number of instructions, and on the other side a less number. I have forty odd pages of instructions asked by one side. I shall not attempt to read these instructions. They are generally disconnected, and, even if correct, would serve rather to confuse than to illustrate. All, however, could not be given. I will state to counsel here that I shall only give such of their instructions as are covered by the general charge, and in my own language, as it will be delivered to the jury. In other respects, except as given in my own language, their instructions will be refused.

By an act of congress which took effect May 10, 1872, all valuable mineral deposits in lands belonging to the United States were declared to be free and open to exploration and purchase by citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as applicable and not inconsistent with the laws of the United States.

In order to acquire any right of location and purchase under this act, a party seeking to acquire such right must either be a citizen of the United States, or must have declared his intention to become such. If, therefore, Smith, or any other locator under whom plaintiff claims, was not a citizen, or had not declared his intention to become such at the time of making his location, he acquired no right, under the act, by virtue of such location. And whether Smith, or any other of such locators, was, at the time of his location, a citizen, or had declared his intention to become such, is a question of fact for you to determine from the evidence. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, and none others, are citizens of the United States. A person born in a foreign country, out of the jurisdiction of the United States, whose father is not a citizen of the United States, can only become a citizen by naturalization. The foreign born son becomes a citizen by being himself naturalized, or by the naturalization of his father during the minority of the son. If, therefore, Smith was alien born, it was necessary that he should be naturalized, or that his father should be naturalized, during his minority, in order to make him a citizen. The statute, for the purpose of acquiring a mining location, makes the affidavit of the party himself competent evidence of his naturalization. It is for you to determine the sufficiency of the evidence to establish the fact.

All the locations under which plaintiff claims were made since May 10, 1872; and, at the time they were respectively made, the statute authorized a claim to be 1,500 feet in length along the vein or lode, and it was provided that 'no claim shall extend more than 300 feet on each side of the middle of the vein at the surface; nor shall any claim be limited by any mining regulation to less than 25 feet on each side of the middle of the vein at the surface.'

In the absence, then, of any mining rule or custom in force at the time of the location, at the place where it is made, the location may extend to the distance of 300 feet on each side of the middle of the vein at the surface; that is to say, the claim may be 1,500 feet in length along the vein, by 600 feet wide, including 300 feet on each side of the middle of the vein.

As I construe the statute, however, and so instruct you, by implication, the miners, by a rule, regulation, or custom established and in force at the time and place of the location, may limit the width of the claim to 25 feet on each side of the middle of the vein at the surface. But such limitation to 25 feet on each side, to be valid, must be by virtue of a rule, regulation, or custom which has not only been established, but which is actually in force at the time of the location. The regulation must be in accordance, and not in conflict with, the laws of the United States and of the state of California; and the laws of California provide that, 'in actions respecting mining claims, proof must be admitted of the customs, usages, or regulations established and in force at the bar or diggings embracing such claim; and such customs, usages, or regulations when not in conflict with the laws of this state, must govern the decision of the action. ' This provision is still in force, except so far as its operation is limited by the act of congress.

One of the locations under which plaintiff claims was made November 10, 1875, and the claim was relocated December 15, 1876, each time 300 feet wide on each side of the lode; the notice in terms purporting to locate it under the act of congress allowing such location.

It is claimed by the defendant that there was, at the time of the location and relocation, a regulation in force in that district limiting the claim to 50 feet on each side of the vein, and that the location of 300 feet is therefore void. Now, whether there was or not such a regulation or custom in force at the time is a question of fact to be found by the jury from all of the evidence in the case on that point.

The defendant, to show a regulation limiting the location to 50 feet on each side, introduced the minutes of proceeding of a miners' meeting in the district, held July 10, 1860, in which there is a rule making such limitation, and minutes of meetings held at various times subsequently, amending the rules, but continuing this rule in force down to and including November 13, 1867, at which time the last action in respect to modifying the rules and regulations was had till December 30, 1876, which is after said location and relocation, and nine years after any meeting amending said rules. At said meeting of December 30, 1876, the miners declined to adopt the 'United States mining laws;' and no action...