Cardoner v. Stanley Consol. Min. & Mill. Co.

• Decision Date: 08 December 1911
• Docket Number: 400-402.
• Citation: 193 F. 517
• Court: U.S. District Court — District of Idaho
• Parties: CARDONER v. STANLEY CONSOL. MIN. & MILL. CO. (three cases).

193 F. 517

CARDONER v. STANLEY CONSOL. MIN. & MILL. CO. (three cases).

Nos. 400-402.

United States Circuit Court, D. Idaho, Northern Division.

December 8, 1911

Myron A. Folsom, for plaintiff.

Alex M Winston, for defendant.

DIETRICH District Judge.

These three cases, numbered 400, 401, and 402, having the same title and involving substantially the same controversy, have been submitted upon the same agreed statement of facts. The plaintiff is the owner of the Rattler and Jerusalem lodes the location of which antedates that of three claims owned by the defendant, namely, the Panorama No. 3, the Ibex, and the Leopard Fraction. The Panorama No. 3 and the Ibex conflict with the Rattler, as the latter was actually located upon the ground, and to some extent the Leopard overlaps both the Rattler and the Jerusalem. The defendant has made application for patents, and the plaintiff, having filed in the land office his adverse claims, brings these actions in support thereof. The questions presented arise out of a discrepancy between the description contained in the location notice of the Rattler lode and the boundaries of the claim as the same was actually located and marked upon the ground. In the notice of location the description is as follows:

'Commencing at this discovery post, being the center of the vein or claim, and upon which this notice is posted, thence 800 feet westerly to a post marked west center end, thence 300 feet northerly to a post marked northwest corner, thence 1500 feet easterly to a post marked northeast corner, thence 300 feet southerly to a post marked east center end, thence 300 feet southerly to a post marked southeast corner, thence 1500 feet westerly to a post marked southwest corner, thence 300 feet northerly to west center end.'

In another portion of the notice claim is made for 300 feet on each side of the middle of the vein and 800 feet westerly and 700 feet easterly from the discovery shaft. The preliminary notice required by law contained a similar description. It will thus be seen that the claim as set forth in the preliminary notice and in the posted and recorded notice of location was for a tract 600 feet wide and 1,500 feet long the same in length extending 800 feet westerly and 700 feet easterly from the discovery shaft; whereas, as the location was actually made upon the ground by stakes and monuments, it extended something over 1,100 feet westerly and 400 feet easterly from the discovery shaft. Assuming the description found in the location notice to be correct, no conflict is presented; the ground in dispute being more than 800 feet westerly from the Rattler's discovery shaft. One of the side lines of the Rattler as located upon the ground is approximately 1,650 feet long, 150 feet in excess of the maximum allowed by law. It is contended by defendant that the location of the Rattler is invalid, first, because of this excessive length; and, second, because of the variance between the description in the notice and the lines as actually marked upon the ground. And it is further urged that, if the claim is not held to be wholly invalid, the plaintiff must at least be limited to the ground described in the location notice. The evidence is wholly insufficient to warrant a finding of fraud upon the part of the locators of the Rattler, and, while the defendant speaks of 'swinging' the claim 400 feet to the westward, the stipulation of facts precludes a finding to that effect. It is expressly stipulated that the claim as originally located upon the ground did not correspond to the claim described in the location notice. The discrepancy between the description of the notice and the actual location existed from the beginning. The stakes were never changed, and there was no 'swinging' of the claim. The only evidence of fraud in making the location longer than that allowed by law is the simple fact that the claim is too long by about 150 feet on one side and less than that amount upon the other. But that in itself is insufficient upon which to base a finding of fraud. When the plaintiff caused a survey to be made for adverse purposes, the westerly end line was drawn in to a sufficient extent to leave the claim the statutory length.

In the absence of fraud, a claim in excess of the maximum allowed by law is not void, and the locator may remedy the defect by abandoning the excess. Jones v. Wild Goose Co. (C.C.A. 9th) 177 F. 95, 101 C.C.A. 349, 29 L.R.A. (N.S.) 392; Waskey v. Hammer (C.C.A. 9th) 170 F. 31, 95 C.C.A. 305; Zimmerman v. Funchion (C.C.A. 9th) 161 F. 859, 89 C.C.A. 53; McIntosh v. Price (C.C.A. 9th) 121 F. 716, 58 C.C.A. 136; McElligott v. Krogh, 151 Cal. 126, 90 P. 823.

The only serious question presented by the stipulation therefore, is whether as against the defendant, the plaintiff may claim according to the stakes and monuments, or whether he shall be held to be bound by the description of the...