Doe v. Waterloo Mining Co.

Decision Date08 November 1895
Docket Number145.
PartiesDOE v. WATERLOO MIN. CO.
CourtU.S. Court of Appeals — Ninth Circuit

P Reddy, J. C. Campbell, and W. H. Metson, for appellant.

A. H Ricketts, for appellee.

Before GILBERT, Circuit Judge, and KNOWLES and HAWLEY, District Judges.

KNOWLES District Judge.

The Waterloo Mining Company, on the 12th day of September, 1889 made an application at the United States land office at Los Angeles, Cal., for a patent for the Red Jacket quartz lode mining claim. John S. Doe, the appellant in this case, within 60 days thereafter,-- the time allowed by law,-- filed in said land office his adverse claim to the claim made in the application of said company, in which he, the said Doe claimed to be the owner of a portion of the premises described in said application as the 'Red Jacket Lode Claim,' and which portion he claimed to be the Mammoth lode claim. Within 30 days after filing his adverse claim said Doe commenced this action against said company in order to determine the right to the possession of that portion of the Red Jacket claim which is described as the 'Mammoth Claim.' The cause was commenced in the superior court of San Bernardino county, Cal., and on petition was removed from the same to the United States circuit court for the Southern district of California. The cause was tried in the last-named court, and judgment rendered for the said company. The plaintiff then appealed the cause to this court.

From the evidence it appears that on the 26th day of March, 1881, one P. H. Newbill made the discovery of a mineral-bearing vein or lode in what was called 'Grapevine Mining District,' San Bernardino county, Cal. On that day he posted a notice upon said premises known as the 'Red Jacket' lode or claim, claiming the right to locate 1,500 feet on said lead and 300 feet on each side of the same, and also claiming the right to have 20 days from said date in which to complete his boundary monuments. Subsequent to the said 26th day of March he went to the said premises with the view of marking the boundaries of his claim, but owing to sickness was prevented from so doing. It also appears he had some doubts as to how he should locate his claim. On the 11th or 12th of April, following, he made an agreement with G. B. Wallace, H. C. Parks, and J. B. Farrell to the effect that if they would complete his location on said ground he would give them one-half of said claim. In accordance with said agreement, on one of said dates these parties did mark the boundaries of said Red Jacket claim by placing along the same, at the sides and ends thereof, some seven monuments of stone, about 2 1/2 feet high. They posted a notice on the center monument on the east end line, describing the same, and which was a location notice. On some of the other monuments notices were placed indicating the corners of the location. The said location notice names the claim as the 'Red Jacket Gold, Silver, and Nickel Quartz Mining Claim. ' The name in the Newbill notice was the 'Red Jacket Claim.' On the 6th day of April, 1881, 6 days before Parks, Wallace, and Farrell marked the boundaries of their location, and some 11 or 12 days after Newbill had posted his notice on the same, T. C. Warden and Dr. G. W. Yager located what they called the 'mammoth Lode.' This included a part of the Red Jacket lode claim. There is no contention but that the boundaries of both claims were properly marked.

The first contention is that the location of the Red Jacket gold, silver, and nickel mining claim is not a completion of the claim made by Newbill. The supreme court of California, upon the same evidence, in the case of Newbill v. Thurston, 65 Cal. 419, 4 P. 409, held that it was not. With the highest respect for that distinguished court, I cannot come to the same conclusion. Newbill undoubtedly made some kind of a mineral discovery on the ground located. He posted a notice on this ground claiming the right to locate some 1,500 feet on the same,-- 500 feet in one direction and 1,000 feet in another from the point where he posted his notice. He went upon the ground after this with the view of marking the boundaries of his location, and was prevented by sickness. He made an agreement, for a valuable consideration with Parks, Wallace, and Farrell, by which they were to complete his location. In pursuance of that agreement they did complete it. That was the contract and intention of all parties. The fact that a new location notice was posted by them on the ground, in which an addition of some descriptive terms was applied to the name given in the location notice of Newbill, cannot make it a new location. The ground was what was sought, not a name. There is no objection to changing the name of a location until after a record is made of the same. There can be no objection to changing the description in a location notice, so other ground is not embraced, up to the date the location notice becomes a record. From necessity such a fact would often occur in the location of mining ground. A location notice generally does describe the ground located, and not what it is proposed to locate. The notice of Newbill should have no other force than a notice of discovery. As a notice of discovery and intention to claim and locate the ground described therein, it was certainly sufficient. Erhardt v. Boaro, 113 U.S. 527, 5 Sup.Ct. 560; Marshall v. Manufacturing Co. (S.D.) 47 N.W. 293.

There is considerable space in the brief of appellee devoted to maintaining that the notice and acts of Newbill were a sufficient location of the Red Jacket claim; that the one stake he placed upon the ground, claiming 500 feet one way and 1,000 feet in another way on the vein discovered, with 300 feet on each side of the same, was a sufficient marking of the boundaries thereof. In the location of quartz lodes, before the mineral act of 1872, such a mode of location was common. Since that date, I know of no instance in which such a location has been sustained. Since that date, it has generally been held that in some way the location should be made in the form of a parallelogram, and the location so marked that its boundaries can be readily traced. The cases of Golden Fleece, etc., Co. v. Cable Consol., etc., Co., 12 Nev. 312-330; Book v. Mining Co., 58 F. 106; Gleeson v. Mining Co., 13 Nev. 442-558; Holland v. Mining Co., 53 Cal. 149; Gelcich v. Moriarty, Id. 217,--maintain fully that such a location as is claimed for Newbill is insufficient. It is also claimed that the above-named cases decided by the supreme court of California were overruled by the same court in the case of Carter v. Bacigalupi, 83 Cal. 187, 23 P. 361. I do not think this should be asserted. The question presented in the last case was the sufficiency of a location notice under the local rules of the district, and not as the marking of the boundaries of a claim. Certainly it does not purport to overrule the former cases. Many cases might be cited from other states and territories showing that such a location is invalid.

Appellant claims that the Newbill right was abandoned because he allowed Parks, Wallace, and Farrell to become joint locators with him. There was no intention on his part to abandon his rights. Certainly the contrary appears in his contract with these parties. Abandonment rests, as a rule, in intention. Newbill, at the time he made his contract with Parks, Wallace, and Farrell, had only the right to make a location of a claim on account of his discovery of a mineral-bearing vein containing gold. There was no rule of law that prevented his making a verbal transfer of this right. Until the statute of California provided otherwise, a mining claim could be transferred by parol or verbal conveyance accompanied by a change of possession of the premises. Tunnel Co. v. Stranahan, 20 Cal. 199; Mining Co. v. Taylor, 100 U.S. 37. The mere right, then, to locate a mining claim, could certainly be so conveyed in the absence of any statutory law. When such a transfer was made there was no objection to the parties making the purchase joining in the location.

The next point presented is, were the boundaries of the claim marked and the location completed within a reasonable time after the discovery by Newbill? In his testimony explaining the claim he made in his notice of 20 days in which to complete his location, Newbill said:

'The reason was that I understood that it was a general understanding that we were allowed twenty days to complete our location. I was aiming to comply with the custom and law, and I thought having that twenty days was according to the custom and law. I was of the opinion that it was in the law, but as I saw in the-- (Interrupting): Just give your reasons. A. My reason at that time was I thought it was embraced in the law. I knew it to be a custom,-- law and custom together,-- and would try to comply with them. The Court: Q. That is, you thought there was a law and custom allowing twenty days? A. Yes, sir. Q. Was that the custom in that section of the country?'

This, for some reason that does not fully appear, was never answered.

There was no objection to proving that there was a custom in the Grapevine mining district allowing a discoverer of a mineral-bearing vein 20 days after his discovery in which to fully complete his location of his claim. Section 2324, Rev St., gives 'the miners of each mining district' the right 'to make regulations not in conflict with the laws of the United States or with the laws of the state or territory in which the district is situate governing the location of mining claims. ' Such a regulation may be evidenced by a written rule, or by an observed custom in the district, not in writing. Flaherty v. Gwinn, 12 Morr.Min.R. 605; Harvey v. Ryan, 4...

To continue reading

Request your trial
26 cases
  • Worthen v. Sidway
    • United States
    • Arkansas Supreme Court
    • 27 Febrero 1904
    ...177; 16 Wall. 240; 107 U.S. 402; 130 U.S. 291; 37 P. 480; 95 F. 911; 13 Nev. 442; 160 U.S. 303; 183 U.S. 563; 1 Mont. 235; 2 Idaho 244; 70 F. 455. Appellants forfeited right to enter and mine the land by the failure to do assessment work. Rev. Stat. U. S. § 2324; 111 U.S. 350; 65 Cal. 565; ......
  • Walton v. Wild Goose Mining & Trading Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 25 Mayo 1903
    ... ... claims, destruction or removal of the stakes, are in line ... with the principles expressed in Book v. Justice M. Co ... (C.C.) 58 F. 106, 111-118, 124-128, which have time and ... again been approved by the courts. Doe v. Waterloo M ... Co., 70 F. 455, 458, 17 C.C.A. 190; Migeon v ... Montana C.R. Co., 77 F. 249, 255, 23 C.C.A. 156; ... Garrard v. Silver Peak Mines (C.C.) 82 F. 578, 585; ... Perigo v. Erwin (C.C.) 85 F. 904; Erwin v ... Perego, 93 F. 608, 611, 35 C.C.A. 482; Smith v ... Newell (C.C.) 86 ... ...
  • United States v. Gentry
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 10 Noviembre 1902
    ... ... written agreement from the purchaser that it shall not be ... used except for building, agricultural, mining, or domestic ... purposes within the state or territory, requires the vendor ... to take the agreement before or at the same time when he ... ...
  • Tubbs v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 5 Noviembre 1900
    ... ... 838, 841; Grape Creek Coal Co. v. Farmers' ... Loan & Trust Co., 24 U.S.App. 38, 45, 12 C.C.A. 350, ... 353, 63 F. 891, 894; Doe v. Mining Co., 44 U.S.App ... 204, 214, 17 C.C.A. 190, 196, 70 F. 455, 461; Sovereign ... Camp Woodmen of the World v. Jackson, 38 C.C.A. 208, 97 ... F ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT