Columbia Copper Mining Co. v. Duchess Mining, Milling And Smelting Co

• Decision Date: 08 February 1905
• Citation: 13 Wyo. 244,79 P. 385
• Parties: COLUMBIA COPPER MINING CO. v. DUCHESS MINING, MILLING AND SMELTING CO
• Court: Wyoming Supreme Court

79 P. 385

13 Wyo. 244

COLUMBIA COPPER MINING CO. v. DUCHESS MINING, MILLING AND SMELTING CO

Supreme Court of Wyoming

February 8, 1905

ERROR to the District Court, Albany County, HON. RICHARD H. SCOTT Judge of the First District, presiding.

The facts are stated in the opinion.

Affirmed.

Chatterton & Coolidge, for plaintiff in error.

The necessary acts, where there is no organized mining district to make a valid lode mining location, are set forth in the Federal Statutes (U. S. Rev. Stat., Secs. 2320, 2324) and in the statutes of the state (R. S. 1899, Secs. 2546, 2548). (Hansworth v. Butcher, 4 Mont., 299; Min. Co. v Min. Co., 7 Sawy., 96; Stinchfield v. Gillis, 96 Cal. 33; McLaughlin v. Thompson, 2 Colo. App., 135; Etling v. Potter, 17 Land. Dec., 424; R. R Co. v. Marshall, id., 544.) Both the federal and state laws require, as a prerequisite to location, the discovery of a "vein or lode" or "mineral bearing rock in place." These statutes are mandatory. (20 Ency. Law (2d Ed.), 713.) Discovery is the inception of title and must precede location. (Erhardt v. Boaro, 113 U.S. 527; Burke v. McDonald, 29 P. 98.) Discovery is not complete until the vein itself is disclosed. The finding of float in loose quartz is not sufficient. (Upton v. Larkin, 6 P. 66; Overman Co. v. Corcoran, 1 Min. R., 691; Waterloo Co. v. Doe, 56 F. 685; Taxton v. Barnard, 2 McCrary, 44; Wright v. Taber, 2 Land Dec., 738; Conkin v. Kelly, 12 id., 1; Min. Co. v. Kimber, 1 Min. R., 536; Gray v. Truby, 6 Colo., 278; Armstrong v. Lower, 6 Colo., 393; Quimby v. Boyd, 8 Colo., 194; Sterefey v. Stark, 7 Colo., 614; McGinnis v. Egbert, 8 id., 41; Min. Co. v. Van Auken, 9 id., 204; Moyle v. Bullene, 7 Colo. App., 308; Fleming v. Daly, 12 id., 439; Flick v. Min. Co., 8 Mont., 298; O'Donnell v. Glen, 8 Mont., 248; Osmund v. Min. Co., 11 Mont. 303; Walsh v. Mueller, 16 Mont. 180; Sanders v. Noble, 22 Mont. 110; Sisson v. Sommers, 24 Nev. 379; King v. Min. Co., 152 U.S. 222; Min Co. v. Min. Co., 6 Sawy., 299; Van Zant v. Min. Co., 2 McCrary, 159; O'Reilly v. Campbell, 116 U.S. 418; Jackson v. Roby, 109 U.S. 440; Page v. Summers, 70 Cal. 121; Michael v. Mills, 22 Colo. 439; Muldoon v. Brown, 20 Utah 121; Housworth v. Butcher, 4 Mont., 299; McShane v. Kinkle, 18 Mont. 208; Foote v. Min. Co., 2 id., 402; Davidson v. Bordeaux, 15 id., 245; Walsh v. Mueller, 16 id., 180.)

Posting notice, even on an outcropping, without any discovery, is merely speculative and does not initiate any rights. (Erhardt v. Boaro, supra; Osmund v. Min. Co., 11 Mont. 303; Eilen v. Boatman, 3 Utah, 159.) Priority of discovery gives priority of right against mere location and possession without discovery. Plaintiffs had made no discovery; they had attempted to make a claim, but their notice was insufficient; they did not remain in possession and left no evidence in the way of marks or work that they ever intended to return. (Bevis v. Markland, 130 F. 226; Crossman v. Pendery, 8 id., 693.) A later record may show an older and better title than an earlier record. (Patterson v. Hitchcock, 5 Min. R., 542; Walsh v. Mueller, 40 P. 292.) What is a "lode or vein" or "quartz or other rock in place," and what is a discovery? (Mt. Diablo Co. v. Callison, 9 Min. R., 616; Stevens v. Williams, 1 id., 557; Tabor v. Dexter, 9 id., 614; Leadville Co. v. Fitzgerald, 41 id., 380; Jones v. Prospect Co., 31 P. 642; Shreeve v. Cooper, 28 id., 315; Hyman v. Wheeler, 29 F. 354; Eureka case, 9 Min. R., 578; Lindley on Mines, 286-290; 20 Ency. Law, 705; Cheesman v. Shreve, 40 F. 787; Bryan v. McCaig, 10 Colo. 309.) Comparing the definitions given in the books with those given by the locators of plaintiff's claims, it will be observed that they had no idea as to what constituted a lode or vein in place and were, therefore, incompetent to judge as to what constituted a discovery. Outcropping of vein matter will not constitute a valid discovery unless mineral in place is exposed by work. (U. S. v. Min. Co., 128 U.S. 673; Min. Co. v. Min. Co., 2 Dak., 374; Brownfield v. Bier, 15 Mont. 403; Burke v. McDonald, supra.) The prospect must justify one in working. (McShane v. Kankle, 44 P. 979.)

The evidence of plaintiff's grantors was to the effect that they discovered and located nine claims in three days with no other tool than a one-pointed pick; while the evidence of seven practical miners, familiar with the ground, showed that it was necessary to do considerable trenching to find the lead, and that there was no outcropping of a vein in that section. Immediately after the alleged location plaintiff's grantors began selling stock, never having made a discovery, marked the boundaries of a claim, dug a tenfoot hole, or posted or recorded a valid location notice. Thirty days or more elapsed before any dirt was moved on the claims. The entire testimony was that there had been no discovery and no proper location of the Duchess claim, and that no vein or lode had ever been discovered upon any of such claims.

The notice required to be posted at the point of discovery must contain the statutory requirements. (R. S. 1899, Secs. 2546, 2548; Seidler v. Lafave, 4 N. Mex., 369; Mt. Diablo Co. v. Callison, 5 Sawy., 439; Min. Co. v. Min. Co., 6 id., 311; Bennett v. Harkrader, 158 U.S. 441; Min. Co. v. Min. Co., 11 F. 675; Cheesman v. Hart, 42 F. 98; Duryea v. Boucher, 67 Cal. 141; Metcalf v. Prescott, 10 Mont. 283; Gluson v. Min. Co., 13 Nev. 442; Min. Co. v. Min. Co., 15 id., 383.) The posted notice of the Duchess claims does not contain the name of the lode or claim, nor give the date of discovery. The date of the notice, as the day on which the parties make the claim, is in no sense the date of discovery, unless so specifically stated in the notice itself.

The location certificate was not recorded within the time required by Section 2546, Revised Statutes, as it appears to have been filed sixty-one days after the alleged date of discovery. The marking must be complete within sixty days. (Gluson v. Min. Co., supra; Bilk v. Meagher, 104 U.S. 279; Strepey v. Starkey, 7 Colo., 614; Min. Co. v. Hammar, 6 Neb., 53; Min. Co. v. Drake, 8 Colo., 586; Sweet v. Webber, 7 id., 443.) After discovery it is the main act of original location. (Donahue v. Meister, 88 Cal. 121; U. S. v. Castillero, 2 Black., 17; Gonn v. Russell, 3 Neb., 358; Patterson v. Tarbell, 37 P. 76; Gird v. Oil Co., 60 F. 531.) The testimony shows that the marking was not completed until sixty-one days after the alleged discovery.

The evidence indisputably shows that the locations of the defendant's claims were properly and legally made. A question was raised as to the validity of location certificates because the tie in the original was to other claims instead of section corners; but the certificates were afterwards amended to cover the supposed defect. The tie in the original certificate was good and the certificate valid. (Jupiter Co. v. Bodie Co., 4 Min. R., 412; Book v. Justice Co., 58 F. 106; Credo Co. v. Highland Co., 95 id., 911; Riste v. Morton, 49 P. 656; Kinney v. Fleming, 56 id., 723; Seidler v. Lafave, 20 id., 789; Duryea v. Boucher, 7 id., 421; Hammar v. Garfield Co., 130 U.S. 299; Hanson v. Fletcher, 37 P. 480; Farmington Co. v. Rymney Co., 58 P. 832.)

Under any circumstances of the case no damage resulted to the plaintiff below. The value of timber cut on that portion of the claims in controversy amounts to from fifty dollars to one hundred dollars only, and the timber is still on the land in buildings and mine work of much more value than the timber while standing. Testimony as to the loss to the company from failure to sell stock was very weak and, moreover, valueless for the purpose of establishing a claim for damages.

One question was raised upon the trial as to the right of defendant below to its lode discovered prior to any discovery by the plaintiff, because said lode crosses the side lines and not the end lines of the Anaconda and Victor No. 2 claims. In such case the side lines, being parallel, become the end lines, and are what are known as "side-end lines," and the only effect of such fact is the curtailment of extralateral rights. (Min. Co. v. Tarbet, 98 U.S. 463; King v. Min. Co., 152 id., 222; Larkin v. Upton, 144 id., 19; Last Chance Co. v. Tyler Co., 157 id., 683; Walsh v. Mueller, 40 P. 292; Patterson v. Hitchcock, 5 Min. R., 542; Lindley on Mines, 585-594, 366-367; 20 Ency. Law, 773.) But this question cannot enter into the case, for the reason that the claims of plaintiffs below were not legal locations, while defendant's locations were in every respect legal.

H. V. S. Groesbeck, for defendant in error.

The evidence as to priority or validity of the location of the mining claims in question being conflicting, and the court having decided in favor of the defendant in error, its findings will not be disturbed unless clearly against the weight of evidence. (Sherlock v. Leighton, 9 Wyo 297; Kimball v. Payne, id., 441; Jackson v. Mull, 6 id., 55; Rainsford v. Massengale, 5 id., 1.) The findings are neither clearly erroneous nor against the great weight of evidence. It is impossible to read the record without concluding that the Duchess Co. was entitled to the relief sought, that it had the prior valid location, that its record was made in apt time, and that it had in all things complied with the law; that the location of the Columbia claims were invalid. It appears from the testimony of the witnesses of the Duchess Company that the locators did in fact locate a vein and find mineral in place; which was followed up within sixty days by sinking the required ten-foot hole and by actual survey and marking of the boundaries. The notices posted contained the name of the lode and the date of discovery, and were posted at the proper place. The notice of...