Burke v. McDonald

• Decision Date: 28 February 1890
• Citation: 33 P. 49,2 Idaho 679
• Parties: BURKE ET AL. v. McDONALD ET AL
• Court: Idaho Supreme Court

33 P. 49

2 Idaho 679

BURKE ET AL. v. McDONALD ET AL

Supreme Court of Idaho

February 28, 1890

MINING CLAIM-ADVERSE CLAIM.-It is not required in locating a mining claim that well-defined walls shall be developed or paying ore found within them, but something must be found in place as rock, clay or earth so colored, stained, changed or decomposed by the mineral elements as to mark and distinguish it from the inclosing country, and experienced miners easily recognize it. Where the boundary of a claim is made excessive in size, with fraudulent intent, it is void, or if so large as to preclude innocent error, fraud will be presumed; if the markings are so indistinct that they cannot be easily traced it will be good ground for filing an adverse claim.

PRACTICE-CITIZENSHIP.-It is a necessary allegation in a complaint of adverse claim to allege such claim has been filed in the land office, but it does not necessarily follow that it must be proven if not denied, but citizenship must be alleged, proven and found even if it is not denied.

SUBMISSION OF SPECIAL ISSUES TO JURY.-Section 4397 of the Revised Statutes leaves it optional with the jury in certain designated cases to find a general or special verdict. Where the issues are numerous, and their nature such as likely to confuse a jury, the court should insist on a special verdict and should formulate issues into separate, distinct propositions, in logical, concise questions, and if it is not done the appellate court is warranted in holding it cause for reversal.

APPEAL from District Court, Shoshone County.

Reversed and remanded.

William H. Clagett, F. Ganahl and Albert Hagan, for Appellants.

In law the center line is assumed to be the line of the lode, and the discovery lode is the controlling fact in the making of a valid location. This center line cannot be afterward changed so as to affect rights subsequently acquired. (Idaho Rev. Stats., sec. 3100; Patterson v. Hitchcock, 3 Colo. 533; Wolfley v. Labanon Co., 4 Colo. 116; Eureka etc. Min. Co. v. Richmond Min. Co., 4 Saw. 323-324, Fed. Cas. No. 4548.) It is for the sole purpose of protecting subsequent locators that the legal claim of not to exceed fifteen hundred by six hundred feet is required to be so marked upon the ground that its boundaries can be readily traced. (White v. Lee, 78 Cal. 596, 12 Am. St. Rep. 115, 21 P. 363.) It is only valuable mineral deposits that are declared to be "open to exploration and purchase, and the lands in which they are found to occupation purchase." Where the contention is over a lode claim, the discovery of a vein or lode must be clearly shown to support a valid location. (U. S. Rev. Stats., sec. 2320; Terrible Min. Co. v. Argentine Min. Co., 5 McCrary, 639, 89 F. 583; Belk v. Meagher, 104 U.S. 279; Hauswirth v. Butcher, 4 Mont. 299, 1 P. 714; Gleeson v. Martin White Co., 13 Nev. 457; Johnson v. Lowsly, 13 Wall. 90; Lansdale v. Daniels, 100 U.S. 115, 116, 117.) A vein or lode is a continuous bed of mineralized rock within any other well-defined boundaries on the earth's surface and under it, and clearly separating it from the neighboring rock. (Eureka Min. Co. v. Richmond Min. Co., 4 Saw. 308-313, Fed. Cas. No. 4548.) And this bed of mineralized rock must be within defined boundaries within the general mass of the mountain. (Stevens v. Williams, 1 McCrary, 487, Fed. Cas. No. 13,413, et seq.; Iron Silver Min. Co. v. Cheeseman, 2 McCrary, 194, 8 F. 297.) The right to locate and the right to purchase a mining claim is an entirety, and cannot be divided, and if the plaintiffs have not shown the discovery of a vein beyond a dispute, they have neither a valid location nor right to purchase the area in conflict of the United States. (Tibbits v. Ah Tong, 4 Mont. 537 et seq., 2 P. 759; Noyes v. Black, 4 Mont. 534, 2 P. 769.) The court erred in refusing to submit special issues to the jury and refusing to allow them to find a special verdict thereon. The court seemed to treat this proceeding as an action of ejectment solely, and assigned as his reasons for refusing the issues requested to be specially found, that it would tend to confuse the jury and that a general verdict would be sufficient. (Thomas v. Chisholm. 13 Colo. 105, 21 P. 1019; McGinnis v. Egbert, 8 Colo. 41, 5 P. 652; Becker v. Pugh, 9 Colo. 589, 13 P. 906; Manning v. Strehlow, 11 Colo. 451, 18 P. 625; Rosenthal v. Ives, ante, p. 265, 12 P. 904.) Location notice under law of 1872 and law of Idaho territory. (Drummond v. Long, 9 Colo. 538, 13 P. 543; Quimby v. Boyd, 8 Colo. 206, 6 P. 462; Gilpin Min. Co. v. Drake, 8 Colo. 590, 9 P. 787; North Noonday v. Orient, 1 F. 522; Jupiter Min. Co. v. Bodie Min. Co., 11 F. 610-666.)

Woods & Heyburn, for Respondents.

Where controverted questions of facts are submitted to a jury, an appellate court will not attempt to set aside the conclusion arrived at by the jury in the absence of fraud or corrupt practices. (McKeever v. Market St. R. R. Co., 59 Cal. 300; Wilson v. S. P. R. R. Co., 8 Pac. C. L. J. 936; Graves v. Moore, 58 Cal. 435; Bensley v. Whipple, 57 Cal. 268; School District v. Heath, 56 Cal. 478; Glenn v. Arnold, 56 Cal. 632; Myers v. Spooner, 55 Cal. 257; Nathan v. Doane, 55 Cal. 349; Fitz v. Bynum, 55 Cal. 461, 462; and about a hundred cases cited under section 288 of Hayne on New Trial and Appeal, p. 857.) What constitutes permanent monuments or natural objects is one purely for the jury. (O'Donnell v. Glenn, 8 Mont. 248, 19 P. 302; Russell v. Chumasero, 4 Mont. 317, 1 P. 713; Flavin v. Mattingly, 8 Mont. 242, 19 P. 385; Gamer v. Glenn, 8 Mont. 371, 20 P. 654; North Noonday Co. v. The Orient, 9 Morr. Min. Rep. 541; Upton v. Larkin, 7 Mont. 449, 17 P. 728.)

BEATTY C. J.

OPINION

BEATTY, C. J.

The appellants, as claimants of the Lackawanna lode mining claim, situated in Yreka mining district, Shoshone county, Idaho, filed in the local land office their application for patent therefor, to which the respondents, as claimants of the Mammoth claim, within the times required by law, filed in said land office their adverse claims, and commenced this action in the district court, in said county. Upon the trial of the cause before a jury, a general verdict was found in respondents' favor, upon which a judgment being rendered, the appellants moved for a new trial, and, from the order of the court overruling such motion, they have appealed to this court. Whatever the value of the property in controversy may be, the cause, having been so ably and fully presented by eminent counsel, merits careful consideration. This has been given it, so far as the brief time between its submission and the necessarily early adjournment of the court permits. Our attention has been directed to numerous propositions involving questions of both law and fact, of not all of which will we attempt a consideration. Appellants earnestly urge that no vein was discovered in the Mammoth prior to its location or that of the Lackawanna. The difficulty is not so much ignorance of the law's demand, or of what constitutes a vein under it, as its willful violation. The practice of posting notices upon any ground within which the existence of a ledge may be imagined has become so common that the emphatic requirement of the law, that a ledge discovery must initiate the location of a claim, is nearly forgotten. The courts will insist upon and enforce this most important provision of the law wherever opportunity offers. It must be remembered that every seam or crevice in the rock, even though filled with clay, earth or rock, does not constitute a vein, nor every ridge of stained rocks, its cropping. Nor, on the contrary, is it required that well-defined walls shall be developed, or paying ore found within them. But something must be found in place, as rock, clay or earth, so colored, stained, changed and decomposed by the mineral elements as to mark and distinguish it from the inclosing country. While the contents of ore-bearing veins widely differ, there is that indescribable peculiarity in the "ledge matter," the matrix of all ledges, by which the experienced miner easily recognizes his ledge when discovered. The evidence in this case does not clearly show such discovery of a vein in the Mammoth as the law requires.

It is also claimed by appellants that if the locators of the Mammoth did post their notice on September 17, 1885, as claimed, they, before marking its boundaries, left it, to prospect for and locate other claims, and before their return, the Lackawanna was located on the following day, and as an evidence of the irregularity of their locations, I refer to the fact that in four days, commencing on September 16th, Smith, Catline and Flaherty located fifteen claims. The law does, in its liberality, allow the prospector, after the discovery of his vein, a reasonable time in which to develop its course, and then mark accordingly the boundaries of his claim; but it does not permit him, after having posted his notice, to leave his claim incomplete, and, going in quest of other claims, post his notice here and there over the country, to the exclusion of other prospectors, and at his leisure prospect and mark out his claims. While no hardships or unusual exertion is required of him, good faith and reasonable diligence are. So long as he exercises the latter, the courts will shield him, but not in the commission of any fraud upon the law. If in this case the evidence clearly showed as true what appellants claim, this court would place its seal of condemnation upon the Mammoth location. But these questions above referred to, with that concerning the performance of the annual assessment work on said claim, were submitted, under the instructions of the court, to a jury, composed in part, at least, of miners, and, in view of...