Bismark Mountain Gold Mining Co. v. North Sunbeam Gold Co.

• Decision Date: 14 March 1908
• Parties: BISMARK MOUNTAIN GOLD MINING COMPANY, Appellant, v. NORTH SUNBEAM GOLD CO., Respondent
• Court: Idaho Supreme Court

95 P. 14

14 Idaho 516

BISMARK MOUNTAIN GOLD MINING COMPANY, Appellant, v. NORTH SUNBEAM GOLD CO., Respondent

Supreme Court of Idaho

March 14, 1908

MINES AND MINING CLAIMS-LOCATION THEREOF-LOCATION CERTIFICATES OR NOTICES-SUFFICIENCY OF-REFERENCE TO NATURAL LANDMARKS AND PERMANENT OBJECT-SUFFICIENCY OF-NOTICE TO SUBSEQUENT LOCATORS-ADMISSION OF NOTICES IN EVIDENCE-ACTUAL NOTICE-AMENDED NOTICE OF LOCATION-DEFECTIVE NOTICE-VOIDABLE-UNAPPROPRIATED PUBLIC LAND-PRIMA FACIE EVIDENCE OF-ANNUAL ASSESSMENT WORK, PROOF OF-FOREIGN CORPORATION-ALLEGATION OF COMPLAINT-DENIAL ON INFORMATION OR BELIEF-DECLARATION OF GRANTOR-WHEN ADMISSIBLE IN EVIDENCE.

1. Under the provisions of sec. 3102, Rev. Stat. Idaho, and of sec. 2324, Rev. Stat. U.S. (U. S. Comp. Stats. 1901, p 1426), requiring notices of location to contain such a description of the locality of the claim by reference to natural landmarks or permanent objects as to render the situation of the same reasonably certain from the letter of the notice itself, held, that the description of the Jesse James and Little Giant mining claims, as stated in said notices, is sufficient under the provisions of said statutes and the facts of this case.

2. The object of the law, in requiring the location of mining claims to be made with reference to some natural object or permanent monument, is for the purpose of directing attention, in a general way, to the vicinity or locality in which the mining claim was to be found.

3. Where it appears that the location of a mining claim is made in good faith, the court will not hold the locator to a very strict compliance with the law in respect to his location notice; and, if by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient.

4. The natural objects or permanent monuments referred to in said statutes may be on the ground located, or off, as the case may be.

5. It is the settled doctrine in this state that location notices should receive a liberal construction, to the end of upholding locations made in good faith.

6. The object and purpose of a location notice is to give notice to subsequent locators; and, if there be a defect in the notice and the subsequent locator has actual notice of the prior location, he will be bound thereby, at least so far as defects are concerned.

7. Sec 5 of an act concerning mines and mining claims, approved February 14, 1899 (Laws 1899, p. 238), provides that amended locations may be made. Such amended locations, where they do not interfere with existing rights, relate back to the date of the original locations.

8. It is the policy of the law, in allowing such amended locations not to avoid a location for defects in the notice, but rather to give the locator an opportunity to correct his certificate or notice whenever defects are found in it.

9. The location notice or certificate, when recorded, is prima facie evidence of all the facts the statute requires it to contain, and which are therein sufficiently set forth; and the affidavit of the locator attached to the notice, setting forth the fact that the ground was unoccupied mineral land of the United States at the time of his location, when introduced in evidence in an adverse suit, makes a prima facie case of such fact. Such notices are prima facie evidence of all the facts required by the statute to be stated therein which are, in fact, sufficiently stated therein.

10. Held, that the evidence in this case is sufficient to make a prima facie case as to the fact of posting the location notices on said claims.

11. Held, that the affidavits of labor, introduced in evidence, showing that the annual assessment work was done on said claims in the years 1904 and 1905, make a prima facie case on that question.

12. If a mistake is made in such notice, it may be corrected by oral evidence. The fact as to whether the work was done is the main question, and not its method of proof.

13. Where it is alleged in the complaint that the plaintiff is a foreign corporation, and that it has complied with the requirements of the constitution and laws of this state relative to foreign corporations doing business in this state, a denial of its compliance on information and belief is not a sufficient denial to raise an issue.

14. Prior to the passage of the act of 1903, in regard to foreign corporations, neither the constitution nor the statute rendered a conveyance of real estate to a noncomplying corporation void.

15. This is an adverse action to protect the title to real estate alleged to have been acquired before said act of 1903 went into effect, and not an action to enforce any contract made with the defendant corporation.

16. The declarations of a grantor of real estate, in regard thereto and to mining claims adjoining, may be admitted in evidence, in an action concerning the title to such claims, provided the declarations were made prior to the time such declarant sold his interest in such real estate, but not after.

(Syllabus by the court.)

APPEAL from District Court of Sixth Judicial District for Custer County. Hon. James M. Stevens, Judge.

Action by the Bismark Mountain Gold Mining Company against the North Sunbeam Gold Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed, a new trial granted, and cause remanded, with costs in favor of the appellant.

Nathan H. Clark, for Appellant.

"If by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient." (Farmington Gold Min. Co. v. Rhymney Gold & Copper Co., 20 Utah 363, 77 Am. St. Rep. 913, 58 P. 832; Morrison v. Regan, 8 Idaho 291, 67 P. 955; Flavin v. Mattingly, 8 Mont. 242, 19 P. 384; Londonderry Min. Co. v. United Gold Mines Co., 38 Colo. 480, 88 P. 455; Hammer v. Garfield Min. Co., 130 U.S. 291, 9 S.Ct. 548, 32 L.Ed. 964.)

It has never been the policy of the law to avoid a location for defects in the record, but rather to give the locator an opportunity to correct his record whenever defects may be found. (McEvoy v. Hyman, 25 F. 596; Morrison v. Regan, 8 Idaho 291, 67 P. 955; Frisholm v. Fitzgerald, 25 Colo. 290, 53 P. 1109.)

Even when the certificate for any of the reasons set forth in the statutes is deemed void, it has been held admissible in evidence with a valid amended certificate correcting the defects in the original. (Strepey v. Stark, 7 Colo. 614, 5 P. 111; Kinney v. Lundy (Ariz.), 89 P. 496; Van Zandt v. Argentine Min. Co., 8 F. 725, 2 McCrary, 159; Butte Con. Min. Co. v. Barker, 35 Mont. 327, 89 P. 302, 90 P. 177.)

"The location certificate where recorded is prima facie evidence of all that the statute requires it to contain, and which are therein sufficiently set forth." (Strepey v. Stark, supra; O'Riley v. Campbell, 116 U.S. 418, 6 S.Ct. 421, 29 L.Ed. 669; Garfield Mill Co. v. Hammer, 6 Mont. 53, 8 P. 153; Hammer v. Garfield etc. Co., 130 U.S. 291, 9 S.Ct. 548, 32 L.Ed. 964; Goldberg v. Bruschi, 146 Cal. 708, 81 P. 23.)

To raise the question that plaintiff corporation has not complied with the corporation laws of the state of Idaho, it must have been specially pleaded by answer or demurrer by defendant, and again if raised by the pleadings herein at all, it is completely disposed of by the opinion on rehearing in the case of Katz v. Herrick, 12 Idaho 1, 86 P. 873, wherein this court approved the case of Fritts v. Palmer, 132 U.S. 282, 10 S.Ct. 93, 33 L.Ed. 317.

M. A. Brown, for Respondent.

The Utah supreme court, in a case analogous to the one at bar, has held that a notice of location such as the ones of the Jesse James and Little Giant are invalid and of no force or effect. (Darger v. LeSieur, 8 Utah 160, 30 P. 363.)

In the case of Morrison v. Regan, this court did not undertake to overrule the doctrine laid down in the case of Brown v. Levan, 4 Idaho 794, 46 P. 661, but seems to make a distinction based upon the fact that in the latter case no tie was made to a natural object or permanent monument, while in the Morrison-Regan case a tie was in fact made.

The rule of law is that, where a compliance by a foreign corporation with the laws of another state where it is undertaking to transact business is a condition precedent, it must be alleged by said corporation and proved. (19 Cyc. 1318.)

A nonsuit in an adverse case makes the plaintiff a stranger to the action, and prevents him from further litigating the claim of the defendant. (Lavagnino v. Uhlig, 26 Utah 1, 99 Am. St. Rep. 808, 71 P. 1046; Moffatt v. Blue River G. E. Co., 33 Colo. 142, 80 P. 139.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This is an action, brought in support of an adverse claim, to quiet plaintiff's title to two certain mining claims, located and known as the "Jesse James" and "Little Giant," situated on Bismark Mountain, in Yankee Fork mining district, Custer county, Idaho. From the location notice it appears that the Jesse James claim was located on January 1, 1898, by E. L. Ayers and Louis Roy, and the Little Giant on April 16, 1898, by E. L. Ayers. On November 18, 1899, said Ayers and Roy conveyed to George P Mulcahy the said mining claims. Thereafter, on March 6, 1900, said Mulcahy conveyed said mining claims to one F. E. Langford, and thereafter, on December 29, 1900, said Langford conveyed said mining claims to the appellant, the Bismark Gold Mining Company, which is a corporation organized and existing under the laws of the state of Washington. The respondent, the North Sunbeam Gold Mining Company, is a corporation organized under the laws of the state of Idaho. It appears...