Ambergris Min. Co. v. Day

• Decision Date: 27 February 1906
• Parties: AMBERGRIS MINING COMPANY, Appellant, v. HARRY L. DAY et al., Respondents
• Court: Idaho Supreme Court

85 P. 109

12 Idaho 108

AMBERGRIS MINING COMPANY, Appellant, v. HARRY L. DAY et al., Respondents

Supreme Court of Idaho

February 27, 1906

MINING LAW-ADVERSE SUIT-EVIDENCE OF MINERAL DEPOSIT-COMPARISON WITH CONTIGUOUS CLAIM-EXAMINATION OF CLAIM-PROOF OF MINERAL DISCOVERY.

1. Evidence of the indications miners had successfully followed in the same district and on contiguous ground in attempting to find a lode or mineral deposit is admissible in determining as to whether or not a valid mineral discovery has been made by one who attempted to locate a lode claim on similar indications and showing upon adjacent ground.

2. It is incompatible with the spirit of judicial inquiry to allow a litigant to introduce, for comparison, evidence of indications and conditions found on a particular mining property which led up to a rich ore body over which he has absolute control, and from which he may exclude every other person, unless such litigant permit his adversary to examine and inspect such property for the purpose of introducing rebuttal evidence if he so desires; and where such evidence is admitted and examination of the property is denied the adverse party, a new trial will be granted.

3. As between a prior and subsequent locator of the same ground as a lode claim, the courts will view the evidence tending to establish the senior locator's discovery in the most favorable light such evidence will reasonably justify.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Ralph T. Morgan, Judge.

Suit by plaintiff in support of an adverse claim to certain mining ground in conflict between the Anna and Ambergris lode claims. Judgment for defendants. Plaintiff moved for a new trial, which motion was denied, whereupon plaintiff appealed from both the judgment and the order. Reversed, and new trial ordered.

Judgement reversed, and a new trial granted. Costs awarded in favor of appellant.

Albert Allen and John P. Gray, for Appellant.

The ground within the Anna as staked and marked would not be open to location, providing the discovery was sufficient upon which to base a valid location, until the 19th of October 1901. The discovery of the Ambergris was made on the 4th of October, but as against the Anna would date from the 25th of October, the day when the location notice was posted upon the claim. This is not in contravention of the decision of the supreme court of the United States in Belk v Meagher, 104 U.S. 279, 26 L.Ed. 735, but comes within the rule as announced by Judge Moody in Caledonia Gold Min Co. v. Noonin, 3 Dak. 189, 14 N.W. 426.

There was no valid discovery even if respondents' testimony was true. (Doe v. Waterloo Min. Co., 54 F. 935, 82 F. 45; Mt. Diablo etc. Min. Co. v. Callison, 5 Saw. 439, F. Cas. No. 9886.)

Evidence as to what sort of indications other miners would follow in attempting to find lode is admissible, not as stating the opinion of third parties, but as stating the value of the indications in the mining community. (Harrington v. Chambers, 3 Utah 94, 1 P. 362; Chambers v. Harrington, 111 U.S. 350, 28 L.Ed. 452, 4 S.Ct. 428.)

A location can only be made upon the actual discovery of the vein or lode. (King v. Amy etc. Min. Co., 152 U.S. 222, 38 L.Ed. 419, 14 S.Ct. 510; Copper Globe Min. Co. v. Allman, 23 Utah 410, 64 P. 1019; Nevada Sierra Oil Co. v. Home Oil Co., 98 F. 671; Erhardt v. Boaro, 113 U.S. 527, 28 L.Ed. 1113, 5 S.Ct. 560.)

There is a material difference between a discoverer being willing to spend his time and money in exploiting the ground and being justified in doing so. (Lindley on Mines, 2d ed., p. 609; Burke v. McDonald, 2 Idaho 679, 33 P. 49.)

Where it is clear from the evidence that no valid location of the plaintiff's claim is made on the ground as found by the trial court, the decree in favor of plaintiff must be reversed and decree for the defendant ordered. (Copper Globe Min. Co. v. Allman, 23 Utah 410, 64 P. 1020.)

M. A. Folsom and W. E. Borah, for Respondents.

The law does not require any particular degree of richness in order to support a quartz claim location. It only requires that there shall be sufficient indications to justify a reasonably prudent person in spending his time and money in its development. (Muldrick v. Brown, 37 Or. 185, 61 P. 428.)

Under the requirements of the law, a valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following it with the expectation of finding ore. (Burke v. McDonald, 3 Idaho 296, 29 P. 98; Hays v. Lavagnino, 17 Utah 185, 53 P. 1029.)

When the locator of a mining claim finds rock in place containing mineral in sufficient quantity to justify him in spending his time and money in prospecting and developing the claim, he has made a discovery within the meaning of the statute, whether the rock or earth is rich or poor or assays high or low, with his qualification: That the definition of a lode must always have such reference to the formation and peculiar characteristics of the ore district in which the lode or vein is found. (Migeon v. Montana Cent. Ry. Co., 77 F. 254, 23 C. C. A. 156, Iron etc. Min. Co. v. M. & S. G. S. M. Co., 143 U.S. 394, 36 L.Ed. 201, 12 S.Ct. 543; Book v. Justice Min. Co., 58 F. 120; Meshane v. Kenkle, 18 Mont. 208, 56 Am. St. Rep. 578, 44 P. 979, 33 L. R. A. 851.)

Where there are found seams or veins of mineral matter which had induced other miners to locate claims in the same district, it would be sufficient to constitute a location. (Shoshone Min. Co. v. Rutter, 87 F. 801, 31 C. C. A. 223; 1 Lindley on Mines, 2d ed., sec. 336; 1 Snyder on Mines, sec. 345; Iron S. M. Co. v. Cheesman, 116 U.S. 529, 29 L.Ed. 712, Hyman v. Wheeler, 29 F. 347; Jupiter v. Bodie etc. Min. Co., 11 F. 666, 7 Saw. 96; Doe v. Waterloo Min. Co., 54 F. 935; O'Donnell v. Glenn, 8 Mont. 248, 19 P. 302.)

A relocator cannot avail himself of the mineral in the public lands which another has discovered until the former discoverer has in fact abandoned the claim or under the law has forfeited his right thereto. (Book v. Justice, 58 F. 128; Souter v. McGuire, 78 Cal. 543, 21 P. 183; Erwin v. Perego, 93 F. 612, 35 C. C. A. 482; Gwilin v. Donellon, 115 U.S. 49, 29 L.Ed. 348, 5 S.Ct. 110, Quigley v. Gillette, 101 Cal. 469, 35 P. 1040; Harris v. Kellogg, 117 Cal. 484, 49 P. 708; Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735.)

AILSHIE, J. Stockslager, C. J., SULLIVAN, J., Concurring.

OPINION

AILSHIE, J.

This suit was instituted by the appellant in support of an adverse claim to that portion of mining ground in conflict between the Anna and Ambergris lode claims. The appellant is the owner of the Ambergris lode and the respondents are the owners of the Anna lode. The respondents base their claim upon a location dated the nineteenth day of August, 1901, on which date Paulson and Hutton, who were two of the owners of the Hercules lode claim, made their location of the Anna claim, and thereafter, on August 31st, caused the same to be duly recorded. On the fourth day of October, 1901, John King, the predecessor in interest of the appellant, made discovery of the Ambergris claim and posted what he terms a preliminary notice, and marked the boundaries of the claim and performed the location work. On October 25th, King posted legal and lawful notice on the Ambergris claim, and on the same date caused the notice to be duly recorded. The Ambergris location overlapped a portion of the Anna claim. The conflict is shown by plaintiff's exhibit "E," which also shows the location of the Anna and Ambergris with relation to the Hercules, concerning which considerable evidence was introduced and about which there is much controversy in this case. For convenience in reference, exhibit "E" will be included herein, and is as follows:

[SEE EXHIBIT "E" IN ORIGINAL]

Respondents applied for a patent to the Anna, and the appellant thereupon, within the statutory time, filed an adverse claim and commenced this suit in support thereof. The appellant bases its claim to the right of possession of the ground in conflict upon the grounds; "1. Because of the fact that the Anna is not based upon any valid discovery of the ledge, lode or vein of mineral-bearing rock in place; 2. Because the respondents did not within sixty days from the date of their location perform the location work required by law." The cause was tried by the court and findings of fact and conclusions of law were made and filed, and judgment was thereupon entered in favor of the defendants. Plaintiff moved for a new trial, which motion was denied, and thereupon appealed from the judgment and order denying its motion for a new trial. After the plaintiff had introduced its evidence and rested its case, the defendant, August Paulson, was sworn and examined on behalf of the defense, and testified to his acquaintance and familiarity with the Hercules and Fire Fly claims, which are adjoining claims. He was thereupon asked the following question: "What did you find in those claims at that time on the Fire Fly?" To this question counsel for the plaintiff objected on the ground of incompetency and that evidence of the nature, condition and character of the Hercules vein was wholly immaterial, and on the further ground that the plaintiff had not been permitted to examine the Hercules property. The objection was overruled by the court, and the witness thereupon narrated the conditions which led up to the discovery of the Hercules vein and the character of the gangue and vein matter and ore body therein, and the fact that he found soft white porphyry carrying mineral traces and mixed with the ore body. The witness described the same kind of...