Charlton v. Kelly

• Decision Date: 22 October 1907
• Docket Number: 1,445.
• Citation: 156 F. 433
• Parties: CHARLTON et al. v. KELLY.
• Court: U.S. Court of Appeals — Ninth Circuit

156 F. 433

CHARLTON et al. v. KELLY.

No. 1,445.

United States Court of Appeals, Ninth Circuit.

October 22, 1907

The plaintiffs in error brought ejectment to recover possession of a certain mining claim in the Fairbanks recording district, Alaska, known as 'Upper No. 6 Below Discovery,' in the second tier of bench claims on the right limit of Dome creek, alleging a location made on August 11, 1904, on a discovery of gold made on the day previous the location having been completed by the recording of two location notices, one on September 29, 1904, and an amended location certificate on May 31, 1906. The defendant in error claimed under a location made on June 26, 1905, of a claim known as 'No. 6 Below Discovery," third tier of benches, the lower half of which claim overlaps the location of the plaintiffs in error. It was claimed by the plaintiffs in error that up to the time of the location of the Kelly claim they had been in the actual possession of their claim through one Kelsey, their agent, who was obliged to leave the claim on June 26, 1905, the day of the Kelly location, in order to obtain provisions, and was detained in Fairbanks as a member of a jury until the following September, when he returned to the claim. The evidence was that the ground on which these claims were located was covered with a heavy growth of moss, from one to three or four feet thick, and with timber and brush. It was contended by the defendant in error that the plaintiffs in error never did make a valid location of their claim, for the reasons, first, that no discovery of mineral was made thereon, sufficient to comply with the statute; and, second, that the boundaries of the claim were not marked so that they could be readily traced on the ground, and that no proper certificate of location was recorded before the rights of the defendant in error vested. After the case had been submitted to the jury, and they had been in deliberation about 20 hours, they notified the bailiff in charge that they could not come to an agreement and requested him to notify the judge. The bailiff communicated this request to the marshal. The marshal went to the jury room and spoke to the jury of their inability to agree, and suggested that they get further instructions from the judge. There is evidence from affidavits of the jurors that the marshal remarked to the jury that the case was an important one, that it was on trial for a second time, and that they ought to be able to agree. The jury at that time stood evenly divided. They were thereafter brought into court and further instructed, and again retired and agreed upon a verdict for the defendant in error. The remarks of the marshal to the jury were set forth in affidavits and were presented to the court on a motion for a new trial. The motion was overruled, and judgment entered for the defendant in error.

West &amp De Journel, Jeremiah Cousby, Heilig & Tozier, and T. C. West for plaintiffs in error.

McGinn & Sullivan, J. C. Campbell, W. H. Metson, Frank C. Drew, C F. Oatman, and J. R. Mackenzie, for defendant in error.

Before GILBERT, Circuit Judge, and DE HAVEN and HUNT, District Judges.

GILBERT Circuit Judge (after stating the facts as above).

Error is assigned to the instruction of the court to the jury on the subject of the marking of the plaintiff in error's claim. It is said that the substance of the instruction was that it is necessary that a mining claim be marked upon the ground by stakes or other permanent monuments; whereas, the law is that the statute is sufficiently complied with if there is such marking on the ground by stakes, monuments, mounds, and written notices, or otherwise, that the boundaries of the location can be readily traced. The instruction of the court upon this branch of the case was that it depended somewhat upon the conformation of the ground and the surrounding conditions whether the boundaries were so marked as to comply with the law, and said:

'You are instructed that a claim may be marked upon the ground by stakes or other permanent monuments, but you are instructed that the law requires a claim to be so distinctly marked upon the ground that its boundaries can be readily traced. The requirements of the statute in this respect are not necessarily fulfilled by merely setting stakes at each of the corners of the claim and at the center of the end lines, unless the topography of the ground and the surrounding conditions are such that a person accustomed to tracing lines of mining claims can, after reading a description of the claim in the posted or recorded notice of location or upon the stakes, by a reasonable and bona fide effort to do so, find all of the stakes and thereby readily trace the boundaries. Where the country is broken, or the view from one stake or monument to another is obstructed by intervening timber or brush, it may be necessary to blaze trees along the line, or cut away the brush, or set more stakes at such distances that they may be seen from one to the other, in a way to indicate the lines so that the boundaries can be readily traced. But it is not for the court to say what is a sufficient marking of the boundaries. It is your duty to determine, from all the evidence in the case and from the topography of the ground in question, whether or not a sufficient marking of the boundaries of the claim by the plaintiffs was made so that the same could be readily traced by a person making a reasonable effort to do so. If you find from the evidence in this case that this location was so definitely marked on the ground by the plaintiffs or their agents that its boundaries could be readily traced, then I instruct you that the plaintiffs have complied with this requirement of the law. If not, then I instruct you that they have failed in one of the essentials of a valid placer mining location, and that your verdict must be for the defendant.'

We find no error in this instruction. The statute requires that the location must be marked on the ground so that its boundaries can be readily traced. It does not prescribe or define the nature of the marks or the position of the same on the ground. It is universally held that any marking on the ground whereby the boundaries of the claim may be readily traced is sufficient. The instruction so given by the court below recognized this rule. It did not confine the jury to the consideration of stakes or other permanent monuments on the ground, and it left to the jury the decision of the question whether, from the evidence in the case and the topography of the ground, a sufficient marking of the boundaries of the claim had been made by the plaintiffs in error so that the same could be readily traced by a person making a reasonable effort to do so. North Noonday Mining Co. v. Orient Mining Co. (C.C.) 1 Fed. 522; 6 Sawy. 299; Book v. Justice Min. Co. (C.C.) 58 F. 106, 113, and cases there cited.

It is contended that the court gave erroneous instruction on the subject of the discovery necessary to the location of a placer claim. The general objection is made that the charge was argumentative, comprising the recital of opinions of text-writers and misleading extracts from decided cases. The charge upon this branch of the case was comprehensive and exhaustive. It contained the recital of the language of decisions of the Supreme Court of the United States and of the state of California, none of which, so far as we can discover, was inappropriate to the case. But it is said that the portion of the charge relating to the insufficiency of mere indications of mineral to constitute a discovery was erroneous and misleading. Upon that subject the court said that slight surface indications did not constitute a discovery, and quoted the language of the Supreme Court of California in Miller v. Chrisman, 140 Cal. 449, 73 P. 1084, in which it was said:

'To constitute a discovery, the law requires something more than conjecture, hope, or even indications.' The court further said:

'If you shall find and believe from the evidence in this case that Klonos, Kelsey, and Schmidt found the colors and the particles of gold so testified to by them in

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