Another v. Noyes

• Decision Date: 08 January 1885
• Citation: 5 Mont. 274
• Parties: MANTLE and another v. NOYES.
• Court: Montana Supreme Court

5 Mont. 274

MANTLE and another

v.NOYES.

Supreme Court of the Territory of Montana.

Filed January 8, 1885.

Appeal from Second district, Silver Bow county.

Thomas L. Napton and J. C. Robinson, for appellant.

W.W. Dixon, for respondents.

WADE, C.J.

This is an action in equity to quiet title. The respondents claim the ground in question under the name of the “Pay Streak Quartz Lode Mining Claim,” by virtue of a location thereof, according to law, on the twenty-third day of April, 1878, under the act of congress of May 10, 1872. The appellant having, on the twenty-third day of July, 1880, procured a patent from the government for a certain placer mining claim under the same act of congress, by virtue of his application of December 14, 1878, which includes within its boundaries the ground claimed by respondents as a quartz lode location, claims title and right of possession to the ground in dispute by virtue of his patent aforesaid. The cause was submitted to a jury on special issues, who returned into court, in substance, the following findings of fact:

That on and prior to December 14, 1878, a vein of quartz or other rock in place, bearing gold and silver, was known to exist within the limits of the ground in controversy; that the existence of said vein or lode could have been ascertained on and prior to December 14, 1878, by any person examining the ground with an honest endeavor to ascertain if it contained any such vein or lode; that Zinn & McEwen, predecessors and grantors of plaintiffs, in the month of April, 1878, discovered within the limits of the ground in controversy a vein or lode of quartz, with at least one well-defined wall, bearing gold and silver; that said Zinn & McEwen, at the time of making said discovery, posted a notice upon the ground in controversy, claiming said ground, and the lode or vein which it included, as a lode mining claim, and at the same time distinctly marked on the ground by stakes, so that its boundaries could be readily traced, the said mining claim and location, which was named by them in said notice and location the Pay Streak lode; that said Zinn & McEwen posted said notice and marked their location upon the ground claimed by them, as the Pay Streak lode, which ground included within its limits the vein or lode which they had discovered; that said Zinn & McEwen, in the month of April, 1878, and within 20 days after they claimed to have discovered a vein or lode, made and filed in the proper county notice and claim of location of the Pay Streak lode, such as was commonly employed in claiming and recording lode claims in that mining district; that said Zinn & McEwen, about the twelfth day of July, 1881, conveyed to plaintiffs their interest in the ground claimed as the Pay Streak lode claim, in controversy, in this action, and that the plaintiffs, on or about the second day of August, 1881, and before the commencement of this action, caused a survey to be made of the ground claimed by them as the Pay Streak lode claim, and marked the location claimed by them distinctly on the ground, so that its boundaries could be readily traced; that the plaintiffs at about the same time posted a notice on the ground so surveyed, claiming the same as the Pay Streak lode claim, a duplicate of which notice was in evidence as the recorded notice and claim of the relocation of the Pay Streak lode claim, which notice, within 20 days after such relocation, was made and filed in the recorder's office of the proper county; that the ground in controversy in this action is the same ground claimed to have been surveyed and relocated by plaintiffs in August, 1881, and is the same ground, or part of the same, that Zinn & McEwen claimed to have located as the Pay Streak in April, 1878; that the ground claimed to have been surveyed and relocated by plaintiffs in August, 1881, included within its limits the place where Zinn & McEwen claimed to have discovered a vein or lode in April, 1878; that plaintiffs had possession of the ground in controversy, working the same at the date of the commencement of this action; that appellant, on the fourteenth day of April, 1878, applied for, and on the twenty-eighth day of July, 1880, obtained, a patent from the United States, which included within its limits the ground in controversy. And as to the question whether there was any vein or lode known to the appellant to exist within and upon the premises in controversy when he applied for a patent, the jury answered and said that they could not agree.

Upon these facts judgment was rendered for respondents for the ground in question, from which the appellant appeals to this court. There does not seem to have been any question at the trial, or claim on the part of appellant, that the Pay Streak mining claim and location of April 23, 1878, had ever been in any manner abandoned or forfeited, or that the relocation of respondents, of August 2, 1881, was not of the same ground originally located as the Pay Streak mining claim. As to whether this claim was known to the appellant to exist within and upon the premises in controversy when he applied for and obtained a patent for said ground as a placer claim, the jury could not agree, and this disagreement suggests the questions upon which appellant asks a reversal of the judgment: (1) Was it within the authority and jurisdiction of the court to have rendered a judgment for plaintiff for the ground in question, the jury not having found upon all the interrogatories submitted to them by the court? (2) Did the placer patent necessarily include the lode mining-claim location, unless such lode claim was known to appellant to exist at the time or before he applied for his patent? and is this question determinable in this action, or was it conclusively adjudicated in the land-office?

1. As to the first question. This is a suit in equity to quiet title. The decree emanates from the judge sitting as a chancellor, and he is alone responsible for the decree. In actions of this character the judge may try the case without a jury, or he may submit special issues to the jury, but their findings of fact is not binding upon the chancellor. He may adopt or disregard the findings of the jury, or make findings of fact of his own and render his decree thereon. In the case of Gallagher v. Basey, 1 Mont. 461, 462, this court held:

“That under and by virtue of the act organizing this territory, the supreme and district courts are clothed with chancery as well as common-law jurisdiction, and, in the exercise of the authority thus conferred, the forms of proceedings must conform to the well-known and recognized distinctions pertaining to said jurisdictions as limited by law; that is to say, causes in equity wherein equitable relief is demanded, or where an equitable defense is made to a claim at law, must be tried as in a court of chancery, and that the decree must proceed from the judge sitting as a chancellor, and it would be error in the class of cases described to try them as at law to a jury; that it is competent to limit and control by statute the forms of proceedings in actions at law and suits in equity, but that no statute and no law of our legislature can in any manner destroy or blend together these separate and distinct jurisdictions; that our organic act recognizes a distinction between suits in equity and actions at law; and that the substance of this distinction must be preserved, although the forms of proceedings may be prescribed and limited by law; and that the Civil Code may be followed in equity cases so far as the same is applicable, but that care must be taken to preserve the distinguishing features of a suit in chancery. *** The suit under consideration was a bill in chancery wherein the equitable jurisdiction of the court was properly invoked, and the record herein clearly shows that it was tried to the court sitting as a chancellor, and that the decree emanates from the chancellor, and that the questions submitted to the jury were to aid the conscience of the court, but not to control it, as fully appears from the fact that while the jury answered that, as against the plaintiffs, the defendants had not diverted or appropriated the waters of the stream to the injury or damage of the plaintiffs, the court found precisely to the contrary,-that the defendants had diverted and appropriated said waters to the damage and injury of the plaintiffs,-and based a decree for a perpetual injunction upon the fact.”

All this applies strongly to the case we are considering; for here, as in the case cited, the court, in rendering its decree, disregarded some of the findings of the jury, and adopted others of their findings as its own, and, as to some questions of fact, made independent findings upon the proofs and admissions in the pleadings, treating the findings of fact by the jury as merely advisory, but not binding upon the court. This, under the authority cited, was clearly within the authority and jurisdiction of the court, and the decision in the case of Gallagher v. Basey is approved. The force of this decision is not invalidated by the act of congress of April, 1874, which declares that it shall not be necessary in the courts of the several territories of the United States to exercise separately the common-law and chancery jurisdictions vested in said courts, and that the several codes and rules of practice adopted in said territories, respectively, in so far as they authorize a mingling of said jurisdictions, or uniform course of proceeding in all cases, whether legal or equitable, be validated and confirmed. Supp. Rev. St. U.S. 12. Subsequent to the enactment of that statute (October, 1874) the supreme court of the United States, in the case of Basey v. Gallagher, 20 Wall. 679, appealed from the supreme court of this territory to that court, says:

“By the organic act of the territory the district courts are invested with chancery and common-law jurisdiction. ...