Cascaden v. Bortolis
| Decision Date | 18 May 1908 |
| Docket Number | 1,442. |
| Citation | 162 F. 267 |
| Parties | CASCADEN et al. v. BORTOLIS. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Louis K. Pratt, for plaintiffs in error.
T. C West and Heilig & Tozier, for defendant in error.
Before GILBERT, Circuit Judge, and DE HAVEN and HUNT, District Judges.
Upon the former hearing of this cause, judgment in defendant's favor was reversed for error in the instructions. Cascaden v. Bartolis, 146 F. 739, 77 C.C.A. 496. New trial having been had, defendant again prevailed, and again plaintiffs have brought the case here.
The action was brought by John Cascaden, John Bernstein, Richard Stein, Louis K. Pratt, and Carl A. Johanson, plaintiffs in error, to recover from Joseph Bortolis, defendant in error two certain lots in the town known as Gate City, Alaska. The complaint prayed that plaintiffs be adjudged the owners of and entitled to the possession of the lots described, and that defendant be adjudged to have no right or title thereto and that he be removed therefrom. Plaintiffs set forth that they owned the lots as against all persons except the United States, and that in September, 1904, the defendant went upon them and withheld possession from plaintiffs, and that he has built buildings thereon and claims to own the same.
The amended answer denied the allegations of ownership, and set forth that in September, 1904, the defendant entered the land described in plaintiffs' complaint, which was vacant, unappropriated public land. Defendant admitted that he occupied the premises, and set forth that the cabins he built were situated within what was known as the town site of Gate City, where a large number of buildings had been erected, and that it was the intention of the occupants of the land upon which the town was situated to enter the same for town site purposes and secure patent therefor, in accordance with the act of Congress in such cases made and provided. Defendant claimed ownership, and right of possession of the cabins and grounds. Plaintiffs' replication denied that the land described in the pleadings was vacant and unappropriated public land.
The principal question involved and submitted to the jury upon the last trial, as upon the first, was whether or not there had been such a finding of mineral in the placer claim, under which the plaintiffs asserted their rights, as would satisfy the laws of the United States (Rev. St. U.S. Sec. 2320 (U.S. Comp. St. 1901, p. 1424)), which provide, among other things, that no location of a mining claim shall be made until discovery of mineral within the limits of the claim located. Was there such a discovery of mineral as gave reasonable evidence of the fact that the ground was valuable for placer mining? Chrisman v. Miller, 197 U.S. 313, 25 Sup.Ct. 468, 49 L.Ed. 770. The lower court having been of the opinion that plaintiffs made a sufficient showing to submit the question of discovery to the jury, charged, among other things, that there must be a discovery of gold or other mineral upon the ground included within the locator's claim, and said:
'What is 'discovery'? What finding of mineral on a placer mining claim is sufficient to satisfy that clause of the statute which provides that 'no location of a mining claim shall be made until the discovery of the mineral within the limits of the claim located?' Where mineral has been found upon a placer mining claim, and the evidence thereof is of such a character that a person of ordinary prudence, not necessarily a skilled miner, would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a mine thereon, the requirements of the statute have been met. To hold otherwise would tend to make of little avail, if not entirely nugatory, that provision of the law whereby 'all valuable mineral deposits in lands belonging to the United States * * * are * * * described to be free and open to exploration and purchase.' It is not a fair criterion that the locator says he is willing to further expend his labor and means in seeking for mineral thereon. The question should not be left to his arbitrary will or statement, but the facts which are within the observation of the discoverer and which induce him to locate should be such as to justify a man of ordinary prudence, not necessarily a skilled miner, in the expenditure of his time and money in the development of the property. Mere slight indications of the existence of mineral in the ground, a mere possibility that it contains gold, is not enough to justify a prudent person in the expenditure of money and labor in its exploration. There must be such a discovery of mineral on the claim as to satisfy you that an ordinarily prudent man, not necessarily a miner, would be justified in expending his time and labor thereon in the development of the property; and unless you are so satisfied in this case by a fair preponderance of the evidence, you should find a verdict for the defendant.
* * * You are instructed that evidence of mining, extensive or otherwise, or of the value of gold deposits, on other and adjacent claims, must not be accepted by you as evidence of a discovery on the plaintiffs' claim. Such knowledge might have justified the plaintiff Cascaden in locating the ground in dispute in the hope that it, too, contained gold; but such facts are not evidence of the existence of gold on the claim in dispute. The proofs of discovery must be such as to establish the fact of finding mineral on the claim in dispute, within its outer boundaries. It must be a finding of mineral in fact, and not in theory; and the mineral found must be in such quantity and found under such circumstances and conditions as would justify a man of ordinary prudence, not necessarily a skilled miner, in the further expenditure of his time and money in further work and labor in developing the claim. If plaintiff Cascaden, or any of the plaintiff's employes, did so find mineral on that claim to that extent, it is sufficient to constitute a discovery, and you should so find. But proof of finding gold in large or small quantities on other claims is not evidence of a discovery on the claim in dispute, and you should not so consider it.'
It will be observed that the first portion of the instruction quoted wherein the court discusses what constitutes discovery, is substantially a reiteration of the rules approved of by this court in Cascaden v. Bartolis, supra, where the principle was laid down that,...
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United States v. Standard Oil Company of California
...by those experienced in mining have an important role in determining whether there is or is not discovery. Cascaden v. Bortolis (C.C.A. 9, 1908) 162 F. 267, 271, 15 Ann.Cas. 625. Thus, the general rule was that the mineral character of lands — especially as to coal and oil — could not be de......
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Converse v. Udall
...v. Robinson, 9 Cir., 1906, 148 F. 799, 803; Charlton v. Kelly, 9 Cir., 1907, 156 F. 433, 436, 13 Ann.Cas. 518; Cascaden v. Bortolis, 9 Cir., 1908, 162 F. 267, 268, 15 Ann.Cas. 625; Adams v. United States, 9 Cir., 1963, 318 F.2d 861, The decisions also make it clear that the standard is more......
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Mandel v. Great Lakes Oil & Chemical Co.
...could not base their claim on a relocation or adopting of prior discovery, citing Public Resources Code Sec. 2301; Cascaden v. Bortolis, 9 Cir., 162 F. 267; and Kramer v. Gladding, McBean & Co., 30 Cal.App.2d 98, 85 P.2d 552. (3) That as between conflicting claims, priority of location, not......
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Hallenbeck v. Kleppe
...of a location since 1955 on the basis of materials having a distinct and special value.9 The plaintiffs rely on Cascaden v. Bortolis, 162 F. 267, 271-72 (9th Cir.), and Lange v. Robinson, 148 F. 799 (9th Cir.). In a controversy between private parties, in Cascaden the court held that where ......