Butte Consol. Min. Co. v. Barker
| Decision Date | 08 June 1907 |
| Parties | BUTTE CONSOL. MINING CO. v. BARKER. |
| Court | Montana Supreme Court |
On rehearing. Affirmed.
For former opinion, see 89 P. 302.
We adhere to the decision heretofore reached in this case, 89 P 302. Our decision is based upon a consideration of sections 3611 and 3612 of our Political Code, and not upon a consideration of any federal statute. We further hold to the view expressed that the state may rightly exact of a locator certain things enumerated in our Code, in addition to what is required by the laws of the United States, for making a quartz lode mining location; and, while it may be said that our Code does not in express terms declare that the opening of the cut, crosscut, or tunnel, which is designated the equivalent of the discovery shaft by section 3611 above, must be on the claim sought to be located, we do think that no other conclusion can be drawn from the language employed in that section and section 3612.
The cases cited by appellant (Enterprise Min. Co. v Rico-Aspen Con. Min. Co., 167 U.S. 108, 17 S.Ct. 762, 42 L.Ed. 96, and Campbell v. Ellet, 167 U.S. 116, 17 S.Ct. 765, 42 L.Ed. 101), have to do with locations made pursuant to section 2323 of the United States Revised Statutes, which are governed by different principles from those applicable to other locations, such as the attempted location of the Louise claim. That different principles are applicable to these different classes of claims we think is made manifest in Campbell v Ellet, above, wherein it is decided directly, for instance, that it is not necessary to mark the point of discovery or the boundaries of the claim on the surface, in case of a location made under section 2323 above, while section 2324, which applies to all other lode mining claims, particularly requires that "the location must be distinctly marked on the ground, so that its boundaries can be readily traced."
The question which we have decided was not one of the questions determined in Brewster v. Shoemaker, 28 Colo. 176 63 P. 309, 53 L. R. A. 793, 89 Am. St. Rep. 188, and what is said in the opinion in that case upon this subject appears to be obiter dictum. However, from the language employed it is possible that, under a state of facts similar to that involved in this case and under a statute similar to ours, the Colorado court might hold contrary to the views we have expressed. But, if so, we can only say...
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