Book v. Justice Mining Co.

• Decision Date: 18 September 1893
• Docket Number: 568.
• Citation: 58 F. 106
• Parties: BOOK et al. v. JUSTICE MIN. CO.
• Court: U.S. District Court — District of Nevada

58 F. 106

BOOK et al. v. JUSTICE MIN. CO.

No. 568.

United States Circuit Court, D. Nevada.

September 18, 1893

(Syllabus by the Court.)

The location of a vein or lode, under the mining laws of the United States, is made by taking up a piece of land in the form of a parallelogram, not exceeding 1,500 feet in length and 600 feet in width, 300 feet on each side of the middle of the vein at the surface. The location must be distinctly marked on the ground, so that its boundaries can be readily traced.

The question as to the sufficiency of the marking of the boundaries depends to some extent upon the character and condition of the ground located. Where the location is made upon a comparatively barren hillside, the posting of stakes at each of the four corners of the location, either by driving the stakes into the ground, or building of stone mounments so as to keep the stakes in place, is a sufficient compliance with the provisions of the law.

When the location is marked so that its boundaries can be readily traced, the locator's right of possession becomes fully vested, and cannot be divested by the removal or obliteration of the stakes, monuments, or notice, without the act or fault of the locator, if he performs the other acts required by law.

The mining laws of the United States do not require any written notice to be posted upon the location when made, and, in the absence of any local rule or regulation or state law requiring a notice to be posted, the location, the boundaries of which are properly marked upon the ground, is valid without the posting of any notice.

Where the statutes of the state, or local rules and regulations of miners, require notices to be posted upon the ground at the time the location is made, the construction given to the notices should be liberal, not technical.

A mistake in the notice as to the direction and course, being 'northerly' instead of 'northeasterly,' does not invalidate the location. Positive exactness as to the course is not required. The stakes and monuments referred to in the notice, and posted upon the ground, will control the direction stated in the notice.

When a notice of location is recorded, it must contain the name or names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim. A reference to a known mining claim is a sufficient compliance with the law requiring reference to be made to some natural object or permanent monument.

The mining laws of the United States require that not less than $100 worth of labor shall be performed or improvements made during each year upon every unpatented location. Labor and improvements, within the meaning of the statute, are deemed to be done upon the location when the labor is performed or improvements made for the express purpose of working prospecting, or developing the ground embraced in the location. Work done outside of the limits of a mining claim for the purpose of prospecting or developing it, is as available for holding the claim as if done within the boundaries of the location of the claim.

The running of a tunnel for the purpose of prospecting developing, and working of two separate and distinct mining claims owned by the same person is to be credited to both of said claims, and, if the necessary amount of work is done, it is deemed a sufficient compliance with the law; and the owner is not, in such a case, required to also perform work on the surface of the locations, in order to hold the same.

In construing the act requiring owners of mining claims to make affidavits as to the amount of work done, and to have the same recorded (St. Nev. 1887, p. 136,) held, that the object of the act was to prescribe a definite way in which the proof of the performance of the work might be obtained, that the act was not intended to prevent the owner from making the proof in any other way, that it simply makes the record prima facie evidence of the facts therein stated, that a failure to comply with the terms of the act does not work a forfeiture, and that a forfeiture of a mining claim can only be established by clear and convincing proof of the failure of the owner to comply with the provisions of the law as to the amount of work required to be done.

Defendant is a California corporation engaged in mining in the state of Nevada, and on the 2d day of January, 1888, was the owner of the Justice claim,--a patented location. The locators of the West Justice and James G. Blaine locations, on that day, while in the employ of the corporation, made the locations in their own names at the expense of, and for the benefit of, the corporation. The Justice, West Justice, and James G. Blaine are contiguous to each other. The corporation annually performed work by running tunnels from the Justice claim for the purpose of prospecting and developing the mining ground embraced within the locations of the West Justice and James G. Blaine. (See opinion as to the facts.) The locators of these claims did not convey the title to the corporation until the 29th day of November, 1892. Held, that the locations made for the benefit of the corporation were valid; that the work performed by the corporation in running the tunnels should be credited as work done upon the West Justice and James G. Blaine; and that the work so done and performed, being sufficient in value, constituted a compliance with the mining laws.

When a mining location is made by one person in his own name, at the request and expense of, and for the benefit of, another person, such other person is legally entitled to the possession of the mining ground so located. The locator, in such a case, holds the legal title in trust for the benefit of the person at whose expense the location was made.

Held, that the statute of frauds had no application to the facts of this case; that, the locators of the ground having voluntarily conveyed the title to the corporation, no objection could be urged by strangers to the transaction on the ground that the original agreement as to the location of the claims was not in writing.

Any discovery of quartz or other rock in place, bearing gold, silver, or any of the precious metals or valuable deposits specified in the first clause of section 2320, Rev. St. U.S. constitutes a 'discovery of a vein or lode,' within the meaning of those words as used in the last clause of said section, which declares that 'no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim located.'

The statute was intended to apply to any kind of a vein or lode of quartz or other rock in place, bearing mineral, in whatever kind, character, or formation the mineral might be found. The statutes should be so construed as to protect locators of mining claims who have discovered rock in place, bearing any of the precious metals named therein in sufficient quantity to induce them to expend their time and money in prospecting and developing the ground located. When the locator finds the rock in place, containing mineral, he has made a discovery, within the meaning of the statute, whether the rock or earth is rich or poor, whether it assays high or low. It is the finding of the mineral, in the rock in place, as distinguished from float rock, that constitutes the discovery, and warrants a location of a mining claim to be made.

The value of the testimony of experts as to what constitutes a vein or lode depends to a great extent upon the strength or weakness of the reasons given in support of the conclusions reached. An expert witness testified that he would not call any discovery of rock bearing mineral a vein or lode, unless gold or silver was found in sufficient quantities to pay all the expenses of extracting, removing, and milling the ore therefrom, and leave a profit to the owner. Held, that the statute is not susceptible of any such construction.

The words 'vein or lode,' as used in the United States statutes, and as understood by miners, are applicable to any body or belt of mineralized rock lying within clearly-defined boundaries, separating it from the country, or nonmineral, rock. Authorities as to the definition of 'lodes or veins' reviewed at length, and the consideration, weight, and application thereof stated. (See opinion.)

It is always a question of fact, to be determined by a jury, or by the court, if the case is tried without a jury, whether a vein or lode has been discovered or exists within the limits of the location in controversy, and also as to the continuity of ore and mineral matter constituting the length, width, and extent of any particular vein or lode.

The facts of this case as to the character of the yellow porphyry rock wherein the vein matter is found, and the purple prophyry rock by which it is bounded, reviewed at length. Held, that the preponderance of the evidence shows that within this belt of yellow porphyry are numerous seams, crevices, fissures, and deposits where the quartz rock and decomposed rock and matter are found, containing mineral sufficiently diffused to justify miners in giving to the yellow porphyry the general designation of 'mineralized matter,--metal-bearing rock.'

It is not necessary that the locator of a mining claim should be the first discoverer of a vein or lode, in lorder to make a valid location. It is sufficient if it be clearly shown that the locator knew at the time of making his location that there had been a discovery of a vein or lode within the limits of his location.

The West Justice and Blaine locations being prior in point of time, and the locators and owner thereof having complied with the mining laws, it necessarily follows...