Bergquist v. West Virginia-Wyoming Copper Company

Decision Date07 February 1910
Docket Number596
Citation106 P. 673,18 Wyo. 234
PartiesBERGQUIST ET AL. v. WEST VIRGINIA-WYOMING COPPER COMPANY
CourtWyoming Supreme Court

ERROR to the District Court, Carbon County; HON. DAVID H. CRAIG Judge.

The facts are stated in the opinion.

Judgment affirmed.

Charles E. Winter, for plaintiffs in error.

The issue in an adverse suit is not which party can show the better title, but which, if either, can show right of possession, and to patent, as against the title of the government. (Iba v. Central Assn., 5 Wyo. 355; Slothower v. Hunter, 15 Wyo. 189; Providence &c Co. v. Burke, 57 P. 643; Becker v. Pugh, 17 Colo. 243.) All the steps necessary to the valid location of a mining claim must, when the locator's right is challenged, be established by proof outside of the location certificate. The certificate may then be considered as prima facie evidence of such other facts as are required to be therein stated. (1 Lindley on Mines, 711-713; Strepy v Stark, 5 P. 111; Smith v. Newell, 86 F. 56.) Each party must establish his right by evidence. (1 Lindley 392; Becker v. Pugh, 17 Colo. 243; Iba v. Assn., 5 Wyo. 355; Rosenthal v. Ives, 12 P. 904; Bay State &c. Co. v. Brown, 21 F. 167; Jackson v. Roby, 109 U.S. 440; Schultz v. Allyn, 48 P. 960; M. Co. v. Havnor, 66 P. 762; 59 Cal. 613; 201 U.S. 184; 163 U.S. 160; 68 L. R. A. 833; 18 P. 625; 5 P. 652; 12 P. 198; 115 U.S. 45; 12 Nev. 312; 33 P. 49; 44 P. 508.)

The evidence conclusively shows that the law was fully complied with in the location of the Merry Christmas lode. The locators had 60 days to sink discovery shaft. (Rev. Stat. 1899, Secs. 2546, 2548; Marshall v. Harney &c. Co., 47 N.W. 290.) It was not necessary that the discovery shaft be sunk at the point of discovery. (Harrington v. Chambers, 1 P. 375.) It was sufficient to place a location notice on the lode, or in such reasonable proximity as to identify it. (1 Lindley, 641; Donahue v. Meister, 25 P. 1096; Gird v. Oil Co., 60 F. 531.) The stakes marking the boundaries, as required by statute, were sunk, and although some of them may have failed to penetrate the ground because of the snow, there was still a substantial compliance with the statute. (Morrison, 411; Hoffman v. Beecher, 31 P. 92; 1 Lindley, 682, 684, 681, 690; Mining Co. v. Mining Co., 6 Sawy. 299; Gleason v. Mining Co., 13 Nev. 442; Mining Co. v. Collison, 5 Sawy. 439; Eilers v. Boatman, 2 P. 66; 111 U.S. 356.) Where a mining location has once been sufficiently marked the right of the locator will not be divested by the subsequent obliteration or removal of the stakes without the locator's fault. (Book v. Mining Co., 58 F. 692; McEvoy v. Hymen, 25 F. 596; Smith v. Newell, 86 F. 56; Mining Co. v. Knight, 56 P. 1091; Walsh v. Erwin, 115 F. 531; 1 Lindley, 692.) There was sufficient discovery. (Hays v. Lavagnino, 53 P. 1029.)

Under the answer the defendant is confined, so far as the Little Joe claim is concerned, to a location and a discovery prior to January 1, 1900, for no right of possession is alleged under the location of December 24, 1906. In adverse suits the rules of pleading in the courts of the State must be followed. (Iba v. Assn., 5 Wyo. 355.) There was no evidence that the boundaries of the new location of the Little Joe were marked. It was necessary for defendant to prove a marking of the boundaries. (27 Cyc. 566; Ledoux v. Forrester, 94 F. 600; Willeford v. Bell, 49 P. 6; Anthony v. Jillson, 23 P. 419; Becker v. Pugh, 13 P. 906; Belk v. Meagher, 104 U.S. 279; Brockbank v. Mining Co., 81 P. 863.) Under the new location it was not permissible to adopt the old stakes, nor were they adopted. It was not a relocation of an abandoned claim. The notices of discovery were fatally defective. The notice on the slab did not contain a complete date. Neither notice stated the date of discovery, nor the name of the discoverer and locator as required by law. Such as the notices were, they were not posted on the date they bore.

All right of the locators of the original Little Joe was forfeited by the decision that the location certificate was void. (Sisson v. Sommers, 55 P. 829; Mallet v. Mining Co., 1 Nev. 188; Barringger & Adams on Mines, 300; Morrison (10th Ed.) 110-112; Purdum v. Laddin, 59 P. 153.) The State has power to require other and additional rules than those required by the federal laws. (1 Lindley, 594; Purdum v. Laddin, supra; Belk v. Meagher, supra; Min. Co. v. Hammer, 8 P. 153; Sisson v. Sommers, supra; Erhardt v. Boaro, 113 U.S. 527.) The amended certificate should not have been received in evidence, without proof of an original location certificate. Had there been no forfeiture of the original location, and had the claim been perfected by filing a valid location certificate at the time the first or second amended certificates were respectively filed, the defendant would still be without title or right of possession, for the reason that, after the expiration of the period allowed by law to perfect the location, and before the first amended certificate was filed, an intervening right was initiated by the location of the Merry Christmas lode, which location was duly perfected within the statutory period. (Mining Co. v. Allman, 64 P. 1019.) When an original location certificate may be deemed void, an additional one may be filed to correct the defects and both admitted in evidence. (1 Lindley, 719; Duncan v. Fulton, 61 P. 244; Morrison v. Reagan, 67 P. 955.) A subsequent certificate cannot, however, relate back to the original discovery where the original certificate is void. (Moyle v. Bullene, 44 P. 69; Morrison v. Reagan, supra.) The defendant failed to show that the necessary acts had been performed in the location of their several claims.

McMicken & Blydenburgh, for defendant in error.

It is true that when the right of possession of a mining claim is challenged by evidence it becomes necessary for the party claiming the right to prove by the evidence all necessary steps that have been denied, but when there is no evidence, as in this case, against the original location the proof may be sufficient, though extremely meagre, and the location certificate itself is prima facie evidence of the validity of the location. The answer of the defendant did not confine it in its proof to the original location of the Little Joe. The location of a mining claim dates from the posting of the notice, if all other acts are performed. The plaintiffs cannot claim anything under their location prior to Feb. 14, 1907, for the reason that that is the date of the location stated in their location certificate. Long before that date the defendant's grantor had fully perfected the location of the Little Joe claim. The plaintiffs' location certificate recites that their claim is situated south of the "Little Wonder" and "Modoc" lodes, by which statement the lodes referred to are recognized as valid and subsisting claims at the date of said location certificate, and plaintiffs are therefore estopped from now claiming any of the ground within those lodes. The plaintiffs also claim that the discovery was made at the discovery shaft. That shaft was located some distance from the place where the discovery notice was posted, and there is no evidence that any mineral was discovered in the discovery shaft of the Merry Christmas claim until at least after the time had expired for sinking said shaft. We concede that it is not always necessary to sink a discovery at the exact point of first discovery, but there must be shown a well defined crevice or lead in the discovery shaft. (27 Cyc. 558 and cases cited; Rev. Stat. 1899, Sec. 2548; Cheeseman v. Shreeve, 40 F. 787.)

The evidence on the part of the plaintiffs failed to show that their stakes marking the boundaries of their claim were prepared or sunk as required by the statute, and if, as counsel contends, all the preliminaries must be strictly complied with, and proof thereof must be absolute irrespective of location certificate, then plaintiffs failed to prove any marking of the boundaries whatever, as required by the statute. The argument of counsel for plaintiffs with reference to necessity merely of substantially complying with the statutory requirements will, when applied to the Little Joe new location, render that location good in all respects on the morning that the Merry Christmas notice was posted. Neither of the locators of the claim of plaintiffs made any discovery of mineral on the claim. Cothern knew of the ledge, but he knew of it only from the discovery and work done by others. That was not sufficient, in view of the fact that the only actual discovery shown for that claim was disclosed, if at all, at the time of the completion of the discovery shaft. (McMuller v. Mining Co., 105 Am. St. 64.) The new location of the Little Joe was not a relocation of an abandoned claim, but it was in fact the relocation of the claim, and the acts with reference to the Merry Christmas claim were performed in an attempt to locate a claim which had not been abandoned, but which it is claimed by the counsel for plaintiffs had been forfeited.

The location notices of the Little Joe location were properly posted and were sufficient in form. By the decision holding the original certificate of the Little Joe to be void the claim itself was not forfeited. Under the statute the location certificate only was void, and the locators might proceed to perfect a location by recording another certificate. The certificate is made solely for the purpose of record. (Ford v. Campbell, 92 P. 206.) Had there been no original certificate, the amended location certificate dated in 1900 and filed in 1907 at a time when there were no intervening rights would have been a full compliance with the law. It was not necessary to offer the original certificate in...

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