Clark-Montana Realty Co. v. Butte & Superior Copper Co.

• Decision Date: 22 January 1916
• Docket Number: 19.
• Citation: 233 F. 547
• Parties: CLARK-MONTANA REALTY CO. et al. v. BUTTE & SUPERIOR COPPER CO.
• Court: U.S. District Court — District of Montana

233 F. 547

CLARK-MONTANA REALTY CO. et al. v. BUTTE & SUPERIOR COPPER CO.

No. 19.

United States District Court, D. Montana.

January 22, 1916

May 29 1916. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

The following is a general sketch of the claims involved:

(Image Omitted) John P. Gray, of Coeur d'Alene, Idaho, M. A. Folsom, of Spokane, Wash., and W. A. Clark, Jr., J. L. Templeman, and Geo. F. Shelton, all of Butte, Mont., for plaintiffs.

W. H. Dickson and A. C. Ellis, Jr., both of Salt Lake City, Utah, and Kremer, Sanders & Kremer, of Butte, Mont., for defendant.

BOURQUIN District Judge.

An apex controversy, both parties seeking to quiet title and damages. The premises are in the Butte district. The Realty Company called plaintiff, owns the Elm Orlu claim, and defendant owns the Blackrock and other claims. Only the two named need be referred to, save in the decree. They have a common side line for 850 feet of the Elm Orlu east end and of the Blackrock west end.

It is now admitted that the Rainbow vein at the apex crosses the Elm Orlu west end line, courses easterly, crosses the common side line and branches in the Blackrock, one strand crossing the Blackrock north side line, and one coursing easterly a disputed distance; that the Pyle strand of the Rainbow at some depth in the Elm Orlu diverges from the south side of the said vein and, coursing easterly, unites with the Rainbow at the Blackrock 1,100 level; that the Jersey Blue vein at the apex crosses the Blackrock west end line and courses easterly a disputed distance, it and the Rainbow converging on strike and dip to union or crossing; that the Creden vein at some depth in the Elm Orlu near the Blackrock west end diverges from the north side of the Rainbow, courses northwesterly under both claims, and unites with or is cut off by the Jersey Blue. Very large ore bodies are in the Rainbow under both claims, at places bisected on strike by the common side line, and both parties have mined them under both claims. From various names of the veins those herein are chosen to avoid confusion. The issues remaining are as follows:

Plaintiff alleges that the Elm Orlu is the older location, and defendant alleges the Blackrock is. Plaintiff alleges that the apex of the Pyle strand is in the Elm Orlu and crosses the Elm Orlu east end line, and that the vein on strike and dip unites with the Rainbow vein; and defendant denies all thereof at points east of the Rainbow apex crossing of the common side line that would give extralateral rights to plaintiff. Defendant alleges that the Rainbow and Jersey Blue unite on strike and dip, and plaintiff denies it and alleges that on strike and dip the latter crosses the Rainbow. Defendant alleges the easterly strand of the Rainbow crosses the Blackrock east end line, and plaintiff denies it. Defendant asserts some ownership of ore bodies under both claims by virtue of estoppel by deed executed by plaintiff to defendant's predecessor in interest, and plaintiff denies estoppel. Both parties allege and deny trespass and damages, and accounting is deferred. Appropriate legal consequences and rights are asserted by both parties. The trial consumed 16 days. There are nearly 1,600 pages of testimony, and 130 exhibits. Maps and models are duplicated, save in more or less theoretical geology, from which unwarranted impressions are to be avoided. The testimony is of five experts for each party, all men of eminence in geology, or mining engineering, or both. For plaintiffs are Greene, of Butte, Irving, of Yale, Weed, of New York, Searls, of Nevada, and Winchell, of Minneapolis. For defendant are Finch, of Denver, Emmons, of Minnesota, Salisbury, of Chicago, and Burch and Wiley, of California. There is some conflict of facts and more of argument, opinions, and conclusions. Most of it can be imputed to the complex geological and other problems, conditions underground, difficulties of observation, and honest differences of interpretation by reasonable and learned men. But in instances partisanship apparently impaired judgment. As a whole, however, the testimony inspires confidence and deserves careful consideration. The judge gave two days to inspection of the premises, but since some places in evidence had been stoped and others obscured by fallen ground or timbering, with intermittent crevices and small openings through which to peer and distinguish granite, altered and otherwise, slips, faults, gouges, aplite, quartz seams, and veins, he has not been greatly aided to determine what evidence is more credible and weighty. The complexities which learned doctors studied for weeks, months, or years (which to solve at a minor point one of defendant's witnesses said was beyond him, in that it would take a year's study), and now disagree upon, are not much clearer now than before that hurried passage through many workings.

In the matter of priority of location, plaintiff attached to the complaint as exhibits a copy of the declaratory statement of each claim, alleged the locations, that based thereon patent had issued upon each claim, and defendant by answer in effect admits all thereof. Plaintiff offered in evidence the patent proceedings, and introduced oral testimony of the Elm Orlu location, to all of which defendant objected that both locations were invalid when made, and neither could be established, save as of date of patent entry. Defendant's patent entry is the older, and on it defendant relies as the date of the Blackrock location. The Elm Orlu declaratory statement recites location of the 'lode' in April, 1875, and it was recorded a few days later, and that of the Blackrock recites location of the 'claim' in November, 1875, and it was recorded a few days later. At that time a Montana statute provided that all discoverers of lodes or veins 'shall' record a declaratory statement thereof 'on oath,' but prescribed no forfeiture for noncompliance. The oral testimony sufficiently proves that at least in 1875, and shortly after the Blackrock location, its owners knew the Elm Orlu was then claimed; that at least in 1876 a vein had been discovered in the Elm Orlu and the corners staked; and that thereafter annual labor was continuously performed, the claim leased, and ore mined; and it was well known and to the knowledge of the owners of the Blackrock thenceforward. In November, 1880, the Blackrock owners applied for patent based on the aforesaid declaratory statement, no adverse claim was filed, entry was made, and patent issued in February, 1882. In December, 1882, the Elm Orlu owners applied for patent based on its aforesaid declaratory statement. The proceedings showed and excluded a conflict area with the Blackrock, and theretofore included in the Blackrock patent. Entry was made and patent issued in January, 1884.

The verifications to said declaratory statements were defective, in that in substance each of them merely recited that the locators were citizens and that the instrument was a copy of the original notice of location posted on the claim. In 1885 the Montana territorial Supreme Court first held that for like defective verification the declaratory statement was void. Later this was expanded to hold the location also was void. See Hickey v. Mining Co., 33 Mont. 46, 81 P. 810. And that continued the rule of decision until 1907, when it was modified by statute, providing that the record of the certificate of location is for constructive notice, that a certified copy thereof is prima facie evidence of all facts properly recited in the certificate of location, and that no defect is material save in favor of subsequent locators 'in good faith and without notice. ' Laws Mont. 1907, c. 16, Sec. 11. All rights to the premises involved had become fixed and vested by patents prior to the said rule of decision. Hence it is the right of the parties to have and the duty of the court to exercise its independent judgment upon the validity and effect of the declaratory statements and locations; and though for comity and to avoid confusion the court leans to agreement with the state tribunal, if in its judgment the state rule of decision is unsound, it must refuse to follow it. See Kuhn v. Coal Co., 215 U.S. 353, 30 Sup.Ct. 140, 54 L.Ed. 228.

A location and its record are different things. The federal and most state statutes distinguish between them, the former even in authorizing local rules 'governing the location' and 'manner of recording.' Comp. St. 1913, Sec. 4620. The statutory object is to protect and reward discoverers of mines. Discovery with intent to claim is the principal thing and vests an estate-- an immediate fixed right of present and exclusive enjoyment in the discoverer. The record is incidental machinery to secure to the discoverer his reward and to give notice to others. The spirit of all recordation acts is notice to protect others against secret equities. If the record is not necessary to create the estate (as it is in the matter of homestead exemptions and mechanics' liens), the statute providing for recording is but a direction to do certain acts and does not create conditions subsequent; and if the statute provides no forfeiture for failure to record, by failure the estate is not divested. Recordation of mining locations cannot be a condition precedent, for the estate arises before recordation is to be performed.

If the Montana statute made recording of the nature of conditions subsequent (of feudal origin), at common law such conditions are to be but substantially performed. And no assignee of part of the premises to which the conditions attach can take advantage of their breach; and the owners of the Blackrock securing the conflict area, were at most assignees of but part of...