Bramlett v. Flick
| Decision Date | 03 July 1899 |
| Parties | BRAMLETT et al. v. FLICK et al. |
| Court | Montana Supreme Court |
Appeal from district court, Flathead county; Charles W. Pomeroy Judge.
Action by J. H. Bramlett and others against John J. Flick and another. From a judgment in favor of plaintiffs, defendants appeal. Reversed.
C. H Foot and G. W. Winston, for appellants.
Sanford & Grubb, for respondents.
In this action the plaintiffs seek to recover possession from defendants of a portion of the surface ground of the Blacktail lode claim, situate in Missoula (now Flathead) county. The complaint alleges ownership and right of possession in plaintiffs of 1,500 feet along the lode, and 300 feet on either side from the middle or center thereof under and by virtue of a discovery and location thereof on July 12, 1892, and a compliance with the laws of the United States and the state of Montana, by proper record of their declaratory statement. It is then alleged that on or about August 20, 1894, the defendants entered upon a portion of the claim, ousted plaintiffs therefrom, and now unlawfully withhold the same from them, to their damage in the sum of $200. The defendants, after denying the allegations in the complaint, set up title, right of possession, and possession in themselves, under a location called the "Bell Lode Claim," alleged to have been made by them prior to that of plaintiffs. They allege the facts of their discovery, location, and a compliance with the law necessary to a valid claim. They further allege that the boundaries of the Bell lode claim conflict with those of the Blacktail lode claim, particularly describing the conflicting area by metes and bounds, and claim that they are lawfully in possession of this area under their prior location. The complaint does not describe this area, b ut in the trial court proof was introduced by the plaintiffs identifying it, and the case was treated by both parties as if the complaint contained a proper description. No question is made here on this point. We shall therefore assume that the complaint is sufficient in this regard, and so treat it. The trial in the court below resulted in a verdict and judgment for the plaintiffs. The case comes here, on appeal from the judgment and an order overruling defendants' motion for a new trial.
1. The plaintiffs first produced evidence of what plaintiff Bramlett, who made the location of the Blacktail claim, did at the time of the location, in the way of making a discovery, posting his notice, and marking the boundaries of the claim. His evidence was supplemented by that of A. L. Jaqueth, a mining engineer, who had made a survey of both claims a few days before the hearing. As an exhibit to his statement, there was introduced in evidence a plat or diagram made by him from this survey, showing the relative positions of both claims, the courses and extent of their boundary lines, and the area in conflict. For illustration, and for convenience for reference, this diagram is inserted here:
Thereupon, over the objection of the defendants, the court admitted in evidence a copy of the notice of location of the Blacktail claim, filed for record on August 1, 1892. The ground of the objection was that it is incompetent, immaterial, and irrelevant, in that it contains no such description of the claim, with reference to natural objects or permanent monuments, as will identify the claim, and that the evidence up to that point showed that the claim is not correctly described in the notice. The notice, after stating that the plaintiffs' claim extends 750 feet easterly and westerly from the discovery shaft upon the lode, and 300 feet on either side of the center or middle thereof, proceeds:
The evidence of plaintiff Bramlett tended to show that he went upon the ground on July 12, 1892, and made a discovery, at the point marked "Discovery Shaft" on the diagram, of quartz in place, containing free gold; that this was from 9 to 10 o'clock in the forenoon; that he proceeded at once to make the location by piling up a monument of stone at the point of discovery, and putting up a substantial copy of the recorded notice there; that he then staked both ways 750 feet; that he put up the northeast corner first, and then the others, going from this point around the claim, and back to the place of beginning; that at the northeast and northwest corners he cut off trees four or five feet from the ground, and squared the stumps; that at the other two corners he blazed standing trees on four sides; that he also put up a center end stake at the east end of the claim; that the corners were marked "A," "B," "C," and "D," in order, preceded by the name and date, "Blacktail, July 12, 1892"; that the east end center stake was a tree, blazed and marked; that he was engaged at the location until about noon, and that he saw no signs of prospecting there; that the ground covered by the claim is rough and mountainous, with cliffs towards the northwest, sloping rapidly down towards West Fisher creek on the north and northeast, and covered partly with undergrowth and down timber; that he had to guess at the courses, and had no means of measuring the distances, other than by stepping from point to point; that the Golden Eagle claim was located by himself on June 27, 1892; that this claim is on Bramlett creek, which is about a mile southeast of the Blacktail claim; that his camp where he stayed during his prospecting was on Bramlett creek; that there is no such stream as Foundation Fisher creek, but that Foundation is a flat down below on the main or West Fisher creek, where the Thompson Falls trail crosses West Fisher creek, and from which the trial up to Bramlett creek and the Blacktail country leads; that the Blacktail claim is in fact located on West Fisher creek, and not on a branch of it; that at the time the location was made he supposed it was on a branch of the West Fisher, but that it is upon the main stream; that he afterwards, at various times, saw all the posts put up by him upon the claim, and that they all remained there until about the beginning of this action, except the northwest corner, which he discovered, in the spring of 1896, had disappeared, and that he restored it at that time by setting up as near the same place as possible a post similar to the original one, and marking it, "Post Restored;" and that the plat introduced in evidence is a fairly correct representation of the claims, and their relative positions.
This witness became somewhat confused in giving the directions from each other of the boundary posts upon the claim, and the course he went from the place of beginning at the time he made the location. In the notice it is stated that post B is in a southerly direction from post A. In his testimony he states he went from post A to B in an easterly direction. From the plat it appears that he went in a direction S., 35~ 50' E. Again, the southwest corner is given in the notice as westerly from post B at the southeast corner, while he states that he went in a southerly direction from post B to this corner. The plat shows that this direction is S., 56~ 55' W. In another part of his testimony he also states that the Blacktail claim is southwest from the Golden Eagle about one mile, thus placing it a mile or more from the locality given it in the notice. It further appears from the plat and the testimony of Jaqueth that the distances from post to post mentioned in the notice are materially greater than these distances as actually measured. Jaqueth states that there was some difficulty in finding the claim at the time of the survey, and that the plaintiffs were compelled to call to their assistance one McGovern, who knew the country well, before they could locate it. Jaqueth further testifies that at the time the survey was made the country was covered with a deep snow, and that it was necessary for the surveying party, in order to find the corners, to dig down into the snow. It was upon the ground of these inconsistencies and discrepancies in the proof offered in support of the notice as preliminary to offering it in evidence, that the objection to its admission was predicated. At first glance, the inconsistencies do seem glaring and irreconcilable, but upon closer view they in large measure disappear; at least, they so far disappear, or are explained away by other parts of Bramlett's statements, that we think the court was right in overruling the objection and allowing the notice to go to the jury. The reference in the notice to Thompson Falls crossing and Foundation Fisher creek certainly gives no aid in identifying the claim, in view of Bramlett's statement that no such place exists. But this reference may be omitted entirely, and still enough be left in the notice, by way of reference to the other objects, to go to a jury, under the evidence applying the other objects mentioned to the...
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