Campbell v. McIntyre

• Decision Date: 07 January 1924
• Docket Number: 4001.
• Parties: CAMPBELL et al. v. McINTYRE.
• Court: U.S. Court of Appeals — Ninth Circuit

295 F. 45

CAMPBELL et al. v. McINTYRE.

No. 4001.

United States Court of Appeals, Ninth Circuit.

January 7, 1924

R. F Roth, of Fairbanks, Alaska, for plaintiffs in error.

Morton E. Stevens, of Fairbanks, Alaska, for defendant in error.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT Circuit Judge.

This case presents a contest between two quartz lode claim locators claiming the same premises, their locations being within the surface lines of a placer claim theretofore located by one of them. William Grant, now deceased, brought ejectment against the plaintiffs in error to recover possession of a placer mining claim, alleging also in the complaint his ownership and right of possession of the quartz location known as the Hillside lode claim, located partly upon and running through the said placer claim. The answer alleged title and possession of the Silver King lode mining claim, based upon a location alleged to have been made by the defendants on June 6, 1921. and prior to the location of said Hillside lode claim; both lode claims covering the same vein or lode. The jury returned a verdict for the plaintiff in the action, and judgment was thereupon rendered.

It was not disputed that on September 10, 1919, Grant entered upon the ground covered by his placer claim, named the Hill bench claim, and made discovery thereon and on April 19, 1920 returned to the ground in company with Hamilton, who owned an adjoining placer claim, known as the Horseshoe claim, and with Hamilton's consent adopted as corner stakes for his placer location two of the corner stakes of the Horseshoe claim, and on the following day placed stakes upon the other two corners of his claim, and on July 12, 1920, duly filed for record his location certificate. The placer claim as located contained an excess of 3.664 acres. Later in the summer of 1920, one Quigley made discovery upon a lode on the hillside upon which the placer claim had been located, and on August 7, 1920, he located a quartz lode claim known as the Red Top lode, claiming 1,500 feet in length and 600 feet in width. Grant made no objection to Quigley's location. The area covered by Quigley's claim and so taken out of the placer claim reduced the area of the latter claim to a fraction of an acre less than 20. There was no evidence that any other vein or lode was then known to exist within the boundaries of the placer claim. In the spring of 1921, during the absence of Grant from his placer claim, the defendants entered upon the same, sunk shafts, discovered a lode, and on June 6, 1921, made location thereon as the Silver King lode mining claim. This was done without permission of Grant, and against his protest, and in disregard of his trespass notices. On July 25, 1921, Grant posted notice of discovery upon the same lode claim, set his stakes thereon, and located the same as the Hillside quartz claim, and on July 26, 1921, duly filed his location certificate.

It is contended that it was error to refuse certain instructions requested by the plaintiffs in error. The answer is that by the instructions which were given the court covered all that was properly required for the protection of the defendants' rights. The court said to the jury that, if they found that the plaintiff had a valid placer location at the time when the defendants entered upon the same and discovered a lode or vein theretofore not known to exist within the boundaries of the placer claim, their acts were unlawful and they could not in that manner initiate any title to the lode or vein; that, where a vein or lode is not known to exist within the boundaries of a valid placer claim, no person other than the owner of the placer claim has the right to enter upon the same for the purpose of discovering such vein or lode and locating the same, and one who attempts to do so without the owner's consent, or without his knowledge, is a trespasser, and can acquire no right to such lode claim; but that, if the jury found that the defendants located upon a known lode claim within the boundaries of the placer claim, and that their entry and discovery were made peaceably and in good faith, they had the right to make such discovery and location. In so instructing the jury the court followed principles of law that are well settled. Iron Silver Min. Co. v. Reynolds, 124 U.S. 374, 8 Sup.Ct 598, 31 L.Ed. 466; Sullivan v. Iron Silver Min. Co., ...