Brownfield v. Bier
| Decision Date | 25 February 1895 |
| Citation | 39 P. 461,15 Mont. 403 |
| Parties | BROWNFIELD v. BIER et al. |
| Court | Montana Supreme Court |
Appeal from district court, Silver Bow county; J. J. McHatton Judge.
Action by William Brownfield against E. Bier and P.J. Hennessy. From a judgement for plaintiff, and an order denying a new trial defendants appeal. Affirmed.
This is an action in the nature of ejectment. The complaint alleges the plaintiff's seizure in fee and right of possession to lots 5 and 6, block 6, in the Noyes & Upton addition to the city of Butte. It alleges ouster by the defendants, and damages, and demands possession and damages. The defendant Bier is the tenant of the defendant Hennessy. The controversy is between a placer-mine claimant and a quartz-lode claimant,--the plaintiff being the former; and the defendants, the latter. The plaintiff's title is by means conveyance from John Noyes, David N. Upton, and David Mieklejohn, who obtained from the United States a placer patent for the land in controversy on May 16, 1881, which patent was issued pursuant to an application made April 9 1880. Defendant Hennessy located the ground, as the "Augusta Quartz Lode Mining Claim," on February 13 1888. Upon the trial the contention of the defendants was that, when the plaintiff's predecessors made application for their placer patent, the vein of the Augusta lode claim was known to exist, and hence was, by the United States statutes, and by the placer patent. This contention was controverted by the plaintiff. Evidence was introduced by the defendants tending to show that the alleged vein, which they claim, was known to exist at the time of the placer application. On the other hand, plaintiff introduced testimony tending to show that the said alleged vein was not known to exist at the time of the application for the placer patent. The case was tried to the court without a jury. The contention above described was the main controversy in the case, and upon that issue the court, by its judgement in favor of plaintiff, found against the defendants. The defendants moved for a new trial, which motion was denied, and they now appeal from that order, and from the judgement. The principal assignment of error on the motion for new trial was that the evidence did not sustain the finding of the court that the alleged vein was not known to exist at the time of the application for the placer patent. There are some other alleged errors, which are also discussed in the opinion below.
Shropshire & Burleigh, for appellants.
John W. Cotter, for respondent.
DE WITT, J. (after stating the facts).
It is quite true that there was some apparently rather substantial testimony introduced on the part of the defendants, tending to show that when the application was made for the placer patent the vein of the Augusta lode claim was known to exist. They introduced evidence showing that on the 16th of April 1875, John Noyes and David Upton, who were two of the placer applicants, had located the alleged vein as the "Eldorado Quartz Lode Mining Claim." They also showed that the said locators of the Eldorado claim sold the same to one Adam Farrady, the consideration named in the deed being $500. This was long before the placer application. It was also shown that said Farrady worked said claim as a quartz mine, and took out some ore therefrom. It also appeared in evidence that Fred Anderson and others, between 1878 and 1880, did some quartz mining upon the same ground, and took out ore therefrom, which was worked. As to the value of the ore which these people took out, the testimony is not quite clear. It was also attempted to be shown that the Anderson people relocated this same ground on February 23, 1878, as the "Bettina Lode Claim." The location notice of the Bettina claim was by the court excluded from the testimony, because there was no proper verification to the notice; but, notwithstanding this exclusion of that testimony, still the defendants were allowed to show that Anderson and his partners did mining work upon the ground, and took out ore therefrom. It was also shown that the placer miners, Noyes & Upton, in running a ditch across their ground, cut through the surface to some depth, and that the flow of water exposed the vein to view. There was some other testimony in the case tending to show that the vein was known to exist prior to the application for the placer patent; but we will not go further into the recital of that testimony, for we are of opinion, as we shall hereinafter express, that the testimony of plaintiff created a substantial conflict as to whether or not the vein was known to exist at the time when the placer application was made, and when we use the word "vein" we mean, not simply a streak of quartz which was apparent, but, on the contrary, we mean to indicate a quartz vein, in its legal sense, -- such a one as, known to exist at the time of the placer patent, can be held to be excluded from such patent.
Recurring first to the testimony of Adam Farrady, the grantee of Noyes & Upton in the Eldorado claim, he testified that he did some work upon the claim, and took out some ore, but that he gave it up and abandoned it because it did not pay him to work it, and there appeared to be nothing in it to warrant him incurring any further expenditures on his part in developing the said claim as a quartz lode mine. There was testimony of several other witnesses that prior to the application for the placer patent they had been over the ground, many times, where the vein was alleged to exist, and that they did not know of any vein on that ground which would justify working as a quartz mine. The important testimony, however, on behalf of plaintiff, was that of David N. Upton. He was one of the applicants for the placer patent, and he was also one of the locators of the Eldoradoquartz lode mining claim. Mr. Upton said: Mr. Upton says elsewhere in his testimony that Farrady did not pay him $500 for the Eldorado claim. He could not, however, successfully deny making the deed to Farrady, because the same was introduced and offered in evidence. Witness Upton, although he could not successfully deny the making of the deed, contended throughout his whole examination that the "quartz proposition," as he calls it, was not worth anything, and for that reason he and his partners gave it up. He says further: "There was no quartz lead known to exist in this placer claim prior to our application, in 1880, that I know of, except this one that we located." This witness testified that the ground was more valuable for placer than it was for quartz. As to the work which Anderson and his partners did on the claim, the witness Upton testified that he was living right by the ground for many years. He says: There were the following questions and answers between this witness and the court: It does not appear to be necessary to quote the evidence further. Between the defendants' and the plaintiff's testimony there was a conflict, as above detailed, upon which conflict the court found in favor of the plaintiff. The question of law, however, is whether the testimony of plaintiff did in fact raise a substantial conflict; that is to say, whether the evidence of plaintiff was, not simply that a vein did not exist, but whether plaintiff showed that there did not exist a vein of quartz, in legal contemplation, --that is, such a vein as would be excluded from the placer patent.
The question of "a vein known to exist at the time of an application for a patent" for the ground, under placer and town-site laws, has engaged the attention of the United States supreme court many times within the last few years and in one case resulted in an earnest disension in that distinguished tribunal. Iron Silver Min. Co. v. Mike & Starr Gold & Silver Min. Co., 143 U.S. 394, 12 S.Ct. 543. But in that case the contention within the court seems to us to have been more upon the question of facts in that particular case than upon a view of the law. We may with propriety quote from both the prevailing and dissenting opinions in the case. As to what a vien is, we undertook in the case of Shreve v. Copper Bell Min. Co., 11 Mont. 309, 28 P. 315, to state what we believed was the opinion of the United States supreme court upon that subject. We said, quoting from the syllabus of that case, which states the conclusion...
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