Brockbank v. Albion Min. Co.
| Citation | 29 Utah 367,81 P. 863 |
| Decision Date | 11 July 1905 |
| Docket Number | 1643 |
| Court | Supreme Court of Utah |
| Parties | BROCKBANK v. ALBION MINING CO |
APPEAL from District Court, Salt Lake County; W. C. Hall, Judge.
Action by Joseph P. Brockbank against the Albion Mining Company. From a judgment for defendant, plaintiff appeals.
REVERSED.
Higgins & Senior for appellant.
A Howat for respondent.
This is an action to determine the adverse claim of the parties to the right of possession of certain mining ground situate in Little Cottonwood Mining District, Salt Lake county, Utah. The plaintiff claims to be the owner and entitled to the possession of the Homestake No. 1 mining claim, which was located January 1, 1900. The defendant claims to be the owner and entitled to the possession of the Omega mining claim located October 22, 1902, the Alice and Alice No. 1, both located January 2, 1903, and the Albion No. 8, located June 30, 1903. The area included within the boundaries of the four claims of the defendant includes all of the ground embraced within the boundary lines of the Homestake No. 1, and upon the defendant, on March 10, 1904, filing an application for a patent for its claims in the United States land office of this district, the plaintiff, within the time required by law, filed the adverse claim upon which this suit has been based. At the trial the court found and decided that the ground in dispute, subject to the paramount title of the United States, belonged to the defendant, and dismissed the plaintiff's complaint.
The appellant, among other things, contends that the court erred in finding that neither at the time of making the location nor at any other time since were the boundaries of the Homestake No. 1 marked by posts or monuments so as to indicate the boundaries of the claim. We think this point is well taken. Such a finding does not appear to be warranted by the evidence. While the boundaries were not fully marked on the day the location notice was posted, because, the snow then being from ten to fifteen feet deep, it was impracticable to do so, still, the notice having contained a full description of the claim by courses and distances from the discovery monument, where it was posted, and the claim being a relocation of one covering the same ground, the corners of which were yet substantially in place, the location was at least sufficient to entitle the locator to perfect it within a reasonable time, or before other parties had acquired rights in the ground. When afterwards, before any rights of the defendant or adverse rights intervened, the plaintiff had the old monuments repaired, and the boundaries marked with a post 3 inches thick and about 4 feet high, set in a stone monument at each corner, the location became complete, and subsequent locators were bound to take notice of the plaintiff's rights. Corner monuments having formerly been placed on the ground, and their locations corresponding with the calls in the notice the locator, under the circumstances, had a right to adopt those monuments by repairing or reconstructing them, as was necessary, and the notice of location could properly be made to refer to the boundary monuments or stakes of the previous...
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Bergquist v. West Virginia-Wyoming Copper Company
...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 location it was not permissible to adopt the old stakes, nor were they adopted. It was not a relocation of an abando......