80 P. 736 (Utah 1905), 1612, Bonanza Consolidated Mining Co. v. Golden Head Mining Co.

CourtSupreme Court of Utah
Writing for the CourtBARTCH, C. J.
JudgeBARTCH, C. J., delivered the opinion of the court. McCARTY, J., concurs. STRAUP, J., dissenting. McCARTY, J., concurs. STRAUP STRAUP, J. (dissenting).
Citation29 Utah 159,80 P. 736
Docket Number1612
Date11 April 1905
PartiesBONANZA CONSOLIDATED MINING COMPANY et al., v. GOLDEN HEAD MINING COMPANY

Page 736

80 P. 736 (Utah 1905)

29 Utah 159

BONANZA CONSOLIDATED MINING COMPANY et al.,

v.

GOLDEN HEAD MINING COMPANY

No. 1612

Supreme Court of Utah

April 11, 1905

APPEAL from District Court, Wasatch County; J. E. Booth, Judge.

Suit by the Bonanza Consolidated Mining Company and others against the Golden Head Mining Company. From a decree finding that neither plaintiffs nor defendant was entitled to the area embraced within certain mining claims, plaintiffs appeal.

AFFIRMED.

E. A. Walton and A. W. Casey for appellants.

APPELLANT'S POINTS.

The notices of location are indefinite and do not describe any ground, and do not tie to any natural monument or permanent object such as will indentify the claim.

Such notices have uniformly, under such circumstances, been held void for uncertainty.

Section 2324, Revised Statutes of the United States requires all recorded notices to contain such a reference to a natural object or permanent object as will identify the claim. (Drummond v. Long [Col.], 13 P. 543; Faxon v. Bernard, 4 F. 702; Mining Co. v. Drake [Col.], 9 P. 787; Darger v. Lesieur, 8 Utah 160; s. c., 9 Utah 192; 1 Lindley on Mines [2 Ed.], 355.)

The pleadings of the defendant do not show in any way that it relied upon a former adjudication, and there are and always may be matters in avoidance of a decree, and it could not be expected that we would be prepared to meet such proof with matters in avoidance, not having been advised by proper pleadings.

In equity the defense of former adjudication to bar a hearing on the merits must always be set up by proper averments in the pleadings. (Galloway v. Hamilton, 1 Dana, 576; Lyon v. Talmadge, 14 Johns 511; Ferguson v. Miller, 5 Ohio 460; Jourolman v. Massangall, 86 Tenn. 81.) The rule is the same under the Codes. (Cave v. Crafts, 53 Cal. 135; Bowe v. Milk Co., 44 Minn. 460; Glenn v. Priest, 48 F. 19; Norris v. Amos, 15 Ind. 365; Hax v. Leis, 1 Col. 187.)

The admissions and declarations of an administrator or trustee, made in his individual capacity, are not admissible to bind the estate he represents. (Waterman v. Wallace, F. Case No. 17261; Thompson v. Drake, 32 Ala. 99; Church v. Howard, 79 N.Y. 415; Lee v. Bank, 78 N.W. 692.) Admissions of stockholders do not bind a corporation. (2 Cook on Corporations, 726, citing many cases.)

The acts necessary to constitute adverse possession have always been dependent upon the character of the ground, whether it was wild or cultivated, in a settled community or elsewhere, and upon the particular use which might be made of it. In a country where everybody's land is inclosed by fences one naturally does not get title by adverse possession without an inclosure, and where land is used for such a purpose that it is used every day in the year, one's possession must be evidenced by daily acts, but the only use to which one puts a mining camp is to prospect the same and extract mineral therefrom, and this is often suspended during some parts of the year and the physical acts of possession relate generally to a small part of such claim, viz., the workings thereon, shafts, tunnels, etc. (Rev. Stat. Utah 2862, 2863; 2 Lindley on Mines, 688; R. S. U.S., 2332; Altoona, etc., Mining Co. v. Mining Co., 114 Cal. 105; Belk v. Meagher, 104 U.S. 279, 287; Harris v. Equator Mining Co., 8 F. 863.)

P. L. Williams for respondent.

RESPONDENT'S POINTS.

Notwithstanding all that is said, and the cases and authorities cited by plaintiff, we insist that the great weight of authority and reason will support the sufficiency of the notices of location in his case, and in connection with the evidences of the staking of the ground, constituted good and valid locations of each of the claims located as the Medway and the Hillside, and that the finding and conclusion of the court below upon these points should be affirmed. The established rules of construction of the acts of parties in the initiation of rights upon the public mineral lands, as well as in the various steps taken by the miner to perfect his location, are to be regarded with indulgence, and the notices required invariably receive at the hands of the court a liberal construction. See section 381, 1 Lindley on Mines (2 Ed.), where this doctrine is fully stated, and is supported by many citations of authorities, amongst others quoted from in the text by the author being the case of Wells v. Davis, 22 Utah 322. At section 373 the same author lays down the doctrine as to what is a sufficient marking under the Federal law, to which we invite the attention of the court. (North Noonday Mining Co. v. Orient Mining Co., 1 F. 522; Jupiter Mining Co. v. Bodie Cons. Mining Co., 11 Fed. 666; Carter v. Bacigalupi, 83 Cal. 187; Eaton v. Norris, 131 Cal. 561; Erhardt v. Boaro, 113 U.S. 527; Hammer v. Goldfield Mining & Milling Co., 130 U.S. 291.)

BARTCH, C. J., delivered the opinion of the court. McCARTY, J., concurs. STRAUP, J., dissenting.

OPINION

BARTCH, C. J.

[29 Utah 163] STATEMENT OF FACTS:

This suit was brought to quiet title to four mining claims and to the conflict areas in the claims which are included within the exterior boundaries of two mining claims, the Medway and Hillside, for which the defendant had made application for patent. It appears from the evidence that the plaintiffs' claims involved in the controversy are the Blackhawk No. 1 and Blackhawk No. 2, each of which was located on the 6th day of January, 1891; the Eclipse, located on the 1st day of January, 1889; and the Fraction, located on the 16th day of September, 1891. The defendants claims involved are the Medway and the Hillside mining claims, and each of them was located on the 7th day of January, 1888. The Eclipse mining claim covers substantially the same ground as the Hillside, and its discovery and initial point is within the limits of the Hillside claim. The Blackhawk No. 2 covers nearly the whole of the Medway claim, and its discovery and initial point is within the boundaries of the Medway. The Blackhawk No. 1 conflicts partially with the Medway, and its discovery point is within the exterior boundaries of the Last Chance mining claim, a

Page 737

claim that the evidence showed had been previously located and adjudicated to belong to Hugh Kilkenney, the predecessor in interest of the defendant. The Fraction mining claim conflicts with the Hillside. At the trial the court found the issues in favor of the defendant, as to the Medway mining claim, and found and held that both the Medway and Hillside claims had been properly located upon unoccupied mineral land, and their boundaries marked as required by law, but that the required work had not been done on the Hillside claim, and that, therefore, it had become forfeited to the United States; that the location of the Eclipse mining claim was illegal and void, because it was made within the exterior boundaries of the Hillside, before the forfeiture [29 Utah 164] of that claim; and that neither one of the parties to this controversy is entitled to the area embraced within the boundaries of the Hillside and Eclipse mining claims. A decree was entered accordingly, and thereupon the plaintiffs prosecuted this appeal.

BARTCH, C. J., after stating the facts, delivered the opinion of the court.

The principal and decisive question presented on this appeal is whether the notices of location of the Medway and Hillside mining claims, considering the supplementary proof, were properly admitted in evidence over the objection by the appellants of uncertainty of description. The notice of the Medway reads:

"Notice is hereby given that the undersigned having complied with the requirements of section 2324 of the Revised Statutes of the United States and the local laws, customs and regulations of this district, has located 1,500 feet in length by 600 feet in width on this the Medway lode, vein or deposit, bearing gold, silver and other precious meals, situated in Snake Creek Mining District, Wasatch county, Utah Territory, the location being described and marked on the ground as follow, to-wit:

"Commencing at discovery and running 750 feet in a northeasterly direction, and 750 feet in a southwesterly direction and marking the exterior ends by lawful stakes 1, 2, 3, and 4, a claim 300 feet on each side of center of same. The nearest known claim is the Hillside. The mining claim above described shall be known as the Medway. "Located this 7th day of January, 1888. "Name of locator, Hugh Kilkenney, 1,500 feet. "Filed for record January 11, 1888, at 3 o'clock, p. m.

"JEREMIAH ROBY, Recorder."

[29 Utah 165] The notice of the Hillside reads:

"Notice is hereby given that the undersigned, having complied with the requirements of section 2324 of the Revised Statutes of the United States and the local laws, customs and regulations of this district, has located 1,500 feet in length by 600 feet in width on this Hillside lode, vein or deposit, bearing gold, silver and other precious metals, situated in the Snake Creek Mining District, Wasatch county, Utah Territory, the location being described and marked on the ground as follows, to-wit: "Commencing at the discovery and claiming 300 feet on each side of the centre of the vein, together with all dips, spurs, angles and variations, running 750 feet in a southwesterly direction and 750 feet in a northeasterly direction from discovery and marked by lawful stakes on both ends and corners 1, 2, 3, and 4. The nearest known claim is the Wild Bill mine on the west. The mining claim above described shall be known as the Hillside mine. "Located this 7th day of January, 1888. "Name of locator, Hugh Kilkenney, 1,500 feet. "Filed for record January 11, 1888, at 3 o'clock, p. m.

"JEREMIAH ROBY, Recorder."

The objections urged to these notices are that they are indefinite, do not describe any ground, and do not tie the claims to any natural monument or permanent object; and that they do not comply with...

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3 practice notes
  • 88 P. 36 (Wyo. 1906), Slothower v. Hunter
    • United States
    • Wyoming United States State Supreme Court of Wyoming
    • December 18, 1906
    ...we think, are questions of fact to be determined Page 40 like any other in the case. (Bonanza Con. Min. Co. v. Golden Head Min. Co., 29 Utah 159, 80 P. 736.) The evidence was before the trial court and the certificate referred to other mining claims to which the Adelaide was tied. No eviden......
  • 314 P.2d 842 (Utah 1957), 8576, Fuller v. Mountain Sculpture
    • United States
    • Supreme Court of Utah
    • August 12, 1957
    ...Eilers v. Boatman, 3 Utah 159, 2 P. 66; Wells v. Davis, 22 Utah 322, 62 P. 3; Bonanza Consolidated Mining Co. v. Golden Head Mining Co., 29 Utah 159, 80 P. 736, 738. See also Cranford v. Gibbs, Utah, 260 P.2d [13] Steele v. Preble, 158 Or. 64, 77 P.2d 418; Springer v. Southern Pac. Co., 67 ......
  • 80 P. 732 (Utah 1905), 1595, Oregon Short Line R. Co. v. Jones
    • United States
    • Utah Supreme Court of Utah
    • April 11, 1905
    ...seem to be that one or more of these things must be shown to entitle the landowner to interest. We are therefore of the opinion that [29 Utah 159] the court did not err in refusing the request of The judgments of the lower court are affirmed, with costs of this appeal awarded against appell......

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