Buffalo Zinc & Copper Company v. Crump

• Decision Date: 28 June 1902
• Citation: 69 S.W. 572,70 Ark. 525
• Parties: BUFFALO ZINC & COPPER COMPANY v. CRUMP
• Court: Arkansas Supreme Court

69 S.W. 572

70 Ark. 525

BUFFALO ZINC & COPPER COMPANY v. CRUMP

Supreme Court of Arkansas

June 28, 1902

Appeal from Marion Circuit Court ELBRIDGE G. MITCHELL, Judge.

Reversed.

Decree reversed and cause remanded.

S. W Woods, for appellant.

The plaintiff, a foreign corporation, could maintain the action. Acts 1889, p. 20; Morawetz, Priv. Corp. (2d Ed.), § 665; 1 McCrary, 123; 18 Mo. 229; 52 Ala. 538, 551; 24 Ohio St. 67; 155 N.Y. 373; 129 Mo. 38; Acts Mo. 1889, p. 76; 67 Ind. 549; 45 S.W. 972. Where an alien makes a mineral location, and the land passes into the hands of a citizen of the United States said location, though void at first, became valid. 9 Morrison, Mining Rep. 529; Barringer & Adams, Mines & Mining 202; 12 Dec. Interior Department, 345; 12 Pub. Land. Dec 345. Mineral locations, what necessary. Barringer & Adams, Mines & Mining, 280-6; Mor. Mining Rep. 411, 441; 9 id. 529. A mining claim is personal property, and a deed is not necessary to pass title. Barringer & Adams, Mines & Mining, 338; 3 Mor. Mining Rep. 217; 9 id. 457. Appellant did not abandon the claims. Barringer & Adams, Mines & Mining, 295; id. 300-5; 4 Mor. Mining Rep. 455; 6 id. 326. Appellant never forfeited the claims. 1 Mor. Mining Rep. 32; 6 id. 305; Barringer & Adams, Mines & Mining, 301-2. Forfeitures are odious in law, and must be clearly proved. Barringer & Adams, Mines & Mining, 201; 5 Sawy. 439; 6 Mor. Mining Rep. 305. Fraud is never presumed, and must be clearly proved. 9 Ark. 482; 38 Ark. 419; 11 Ark. 378. If work is resumed after forfeiture of claim temporarily by owner, his right is preserved. Barringer & Adams, Mines & Mining, 264; 1 F. 522; 11 F. 666; Rev. Stat. U. S. § 2324; 1 Mor. Mining Rep. 510; 15 Mor. Mining Rep. 329-341. Forfeiture must be clearly established. 16 Mor. Mining Rep. 125; 5 Sawy. 439. Appellant had capacity to acquire title to mineral claim on government land Stat. U. S. § 2319; Barringer & Adams, Mines & Mining, 203; 9 Mor. Mining Rep. 529; 20 Dec. Interior Department, 116; 22 id. 83; 116 U.S. 418. On a transfer, a mining claim passes to the grantee, and the alienage of the grantee is open to question by the government only. Stat. U. S. § 2332; 152 U. S. Rep. 505; 1 Mor. Mining Rep. 522. Appellant had a right to the claims by reason of seven years' possession. 8 F. 863; 17 Cal. 38; 30 Cal. 349. The homestead entry of Schmidt was void. 23 Ark. 735; 43 Ark. 469. The appellant was in actual possession. 40 Ark. 192; 41 Ark. 535. The appellees were trespassers, and their attempted mineral locations were void. Rev. Stat. U. S. §§ 2320-22; Barringer & Adams, Mines & Mining, 264, 307, 689; 11 F. 666; 1 Mor. Mining Rep. 541; id. 510-22; 113 U.S. 527. Appellant had the right to make the location on the ground in controversy. Barringer & Adams, Mines & Mining, 307; 15 Mor. Mining Rep. 397; id. 329; 40 F. 787; 15 Am. & Eng. Enc. Law, 544. What is a lode or vein? 1 Mor. Mining Rep. 566; id. 557; 9 Mor. Mining Rep. 529, 578; Barringer & Adams, Mines & Mining, pp. xcix-civ, cvi-cxiii, 437-8; 8 F. 301; 116 U.S. 529; 15 Mor. Mining Rep. 519; 11 F. 666; 4 Mor. Mining Rep. 666; Copp's Min. Lands, 52, 53, 352, 453. There is no evidence of a placer deposit on the amended White Eagle Lead & Lode Claim. Stat. U. S. § 2329; Barringer & Adams, Mines & Mining, 476; 73 U.S. 109; Copp's Min. Lands, 83; 128 U.S. 673; 9 Mor. Mining Rep. 614. The court erred in refusing to admit the depositions of Weller and Nichols. 15 Ark. 345; 5 Am. & Eng. Enc. Law, 607; 36 Kan. 468; 75 Me. 156; 10 Cush. 562; 8 Bush, 519; 32 Mo. 411; 8 Bosw. 416; 13 Ia. 564; 32 Wis. 34; 56 Ala. 558; 11 Heisk. 446; 2 S.E. 837. The court should have made a finding as to the character of the land involved in the litigation. 5 Am. & Eng. Enc. Law, 376; 2 Beach, Mod. Eq. Pr. §§ 806-809; 29 Ark. 637.

W. F. Pace, for appellees.

A mining claim is property. 104 U.S. 279. The locators have the right of possession. U. S. Stat. §§ 2324, 2329; Lindley, Mines, § 363. Appellant forfeited his right to maintain this action. Acts 1899, p. 18; Suth. Stat. Con. §§ 335-6; End. Int. Stat. § 450; Lindley, Mines, §§ 44, 755; 4 Colo. 359; 60 Ark. 325; 24 L. R. A. 315. The locations made by Kaylor and Blake were void from the beginning, and appellant acquired no rights thereunder. Rev. Stat. U. S. § 2324. Appellant abandoned its claim. Lindley, Mines, § 604; 2 Colo. 330; 55 Cal. 257; Lindley, Mines, §§ 654, 643. Appellant's amended location was not made as the law requires. Barringer & Adams, Mines & Mining, 243; Lindley, Mines, §§ 382, 735, 375; Barringer & Adams, Mines & Mining, 306; 104 U.S. 279. Findings by the court are confined to courts at law. 25 Ark. 498. Appellant has failed to show the character of the land in controversy. U. S. Stat. §§ 2320-22, 29; 1 Rice, Ev. 356; 1 Mor. Mining Rep. 557-566; 103 U.S. 839; 2 Mont. 402; 143 U.S. 394; 73 Cal. 109.

S. W. Wood, for appellant, in reply.

The law presumes that notice was properly posted. Barringer & Adams, Mines & Mining, 235; 9 Mor. Mining Rep. 625. The description is sufficient. 16 Mor. Mining Rep. 131; 9 id. 625; 5 Sawy. 439; 12 Mor. Mining Rep. 178; 4 Mor. Mining Rep. 412; 9 id. 515, 543; 67 F. 996; 15 Mor. Mining Rep. 329; 2 McCrary, 44; 111 U.S. 356. The validity of the location will be presumed. 3 McCrary, 14; 8 F. 863; 12 Mor. Mining Rep. 178. Continuous possession and performance of assessment work disprove abandonment. 1 Mor. Mining Rep. 53; 9 id. 318.

John B. Jones, Amicus Curiae.

In an adverse suit, each must prove his own title. 17 Colo. 243. In ejectment all the owners need not be joined. 2 P. 920. Title to mining claims may be acquired by statute of limitations. Rev. Stat. U. S. § 2332; Act 1870, § 13; 104 U.S. 636. The patent entitles to possession. Barringer & Adams, Mines & Mining, 568. Mines are governed by the rules governing real property. 8 F. 865. Five years' possession before adverse rights exist is a location. 3 Sawy. 634; 9 Nev. 240; 83 Cal. 302; 104 U.S. 279; 114 Cal. 100. Possession of part is possession of all. 17 Cal. 44; 17 Cal. 108. Cutting brush a few days does not overcome the presumption created by a deadening. 34 Ark. 193. If the claim is evidenced by public acts of ownership, much depends on the nature of the property. 30 Ark. 655; 40 Ark. 243. Intention is not sufficient for the acquisition of possession. 42 Vt. 473. A claim under an inadequate and incompetent conveyance is under color of title. 18 How. 50. And, if there is no adverse possession, the law construes the entry as coextensive with the grant. 144 U.S. 509; 148 U.S. 148. Possession continues until interrupted by another. 34 Ark. 193; 17 Cal. 108. Under the pre-emption laws, no man can enter upon the actual possession of another. 100 U.S. 256; 96 U.S. 513; 104 U.S. 279; 17 Cal. 107; 20 Cal. 209; 31 Cal. 390; 30 Cal. 355; 7 Nev. 219; 99 U.S. 262; 100 U.S. 251-6; 11 F. 125-9; 10 Sawy. 246. No one by junior discovery could assert a superior title. 4 F. 705. Actual possession is prima facie evidence of title. 6 Colo. 380; 2 P. 919; Lindley, Mines, § 217. Forfeiture does not arise from failure to do annual work; a third party must intervene and a relocation. 1 Mor. Mining Rep. 536; Lindley, Mines, § 651. Forfeitures must be clearly proved. 130 U.S. 301; 1 F. 522; 104 U.S. 279. Failure to work a given year does not divest title. 58 F. 293; 25 P. 785; Lindley, Mines, § 48; 1 F. 522; 104 U.S. 279; 75 Cal. 284; 62 Cal. 160. A party claiming a relocation must show that the work did not amount to a presumption. 1 Nev. 215; 130 U.S. 291. The failure to mark locations is fatal to their validity. Barringer & Adams, Mines & Mining, 228; Lindley, Mines, § 454; Rev. Stat. § 2329; Barringer & Adams, Mines & Mining, 477; 160 U.S. 318; 58 F. 114-5. No record of claim is necessary, unless required by local rules of miners. 1 F. 522. And the description must be by reference to natural objects. 4 F. 704; 60 F. 531; 58 F. 113; 78 Cal. 593; 83 Cal. 296; Lindley, Mines, § 373. Posting notices is no substitute for marking. Barringer & Adams, Mines & Mining, 234, 235, 477; 53 Cal. 149, 217; 4 P. 754. The failure to refer to a natural object makes the description void. 13 P. 543; 8 Colo. 586; 46 P. 661; 27 P. 726; 30 P. 364; 13 Nev. 462. Abandonment by a locator of mining claim terminates all right of possession. 1 Mor. Mining Rep. 29; 163 U.S. 450; 110 N.Y. 595; 16 Wend. 539; 4 Md. 96; 3 Kent, 448; 1 Mor. Mining Rep. 34. Without discovery of mineral, there can be no location. 13 L. D. 86; 18 L. D. 81; 19 L. D. 568; 22 L. D. 409; 5 McCrary, 298; 115 U.S. 45; 3 Colo.App. 278. Cotenants may take the interest of a cotenant when abandoned by him. 1 Nev. 188.

OPINION

BATTLE, J.

This action involves the validity of mining claims. The Buffalo Zinc & Copper Company alleged in its complaint, substantially, as follows: It was duly organized as a corporation, under the laws of the state of Illinois, on the 3d day of June, 1887, for the purpose of doing a general mining and smelting business, and dealing in mineral lands. Since then it has been engaged in such business.

On the 6th of November, 1886, one Rose Ann Kaylor, in accordance with law, located a lead and lode mining claim, described as follows: "Beginning at the northwest corner of the southwest quarter of the southwest quarter of section 11, in township 17 north, and in range 15 west, and thence running north along the section line 1,500 feet, thence east 600 feet, thence south 1,500 feet, and thence west 600 feet to the place of beginning." Notice of this location was given, and was duly filed for record in the office of the recorder of the Harrison mining district, in which the land was then situated, and was recorded on the 8th of December, 1886; and was also filed for record on the 21st day of January, 1888, in the office of...