Copper Globe Min. Co. v. Allman

• Citation: 23 Utah 410,64 P. 1019
• Court: Utah Supreme Court
• Decision Date: 17 April 1901
• Parties: THE COPPER GLOBE MINING COMPANY, a Corporation, Respondent, v. T. M. ALLMAN, MARY A. ALLMAN, WILLIAM A. PHILLIPS, JOHN H. BARTON, D. M. ROBERTS, W. D. ROBERTS, JR., S. R. THURMAN, GEORGE HAVERCAMP, C. B. SNYDER and S. S. JONES, Appellants

64 P. 1019

23 Utah 410

THE COPPER GLOBE MINING COMPANY, a Corporation, Respondent, v. T. M. ALLMAN, MARY A. ALLMAN, WILLIAM A. PHILLIPS, JOHN H. BARTON, D. M. ROBERTS, W. D. ROBERTS, JR., S. R. THURMAN, GEORGE HAVERCAMP, C. B. SNYDER and S. S. JONES, Appellants

Supreme Court of Utah

April 17, 1901

Appeal from the Seventh District Court, Emery County.--Hon. Jacob Johnson, Judge.

Action to recover possession of certain mining ground and to have a judgment decreeing that defendants have no interest in the ground. From a judgment for plaintiff defendants appealed.

REVERSED.

M. M Warner, Esq., and E. A. Wedgwood, Esq., for appellants.

This court, in the case of Darger v. LeSieur, 8 Utah 160 affirmed upon re-hearing in 9 Utah 192, decided this identical case, so far as the facts are concerned, and the remarks of the court in that case can be used over again in this, simply changing the name and place of the so-called natural object.

Actual possession by appellants of their Norma No. 2, mining claim at the time of the commencement of this suit, unless respondent proves title to the property under the law, entitles appellant to a decree as against respondent. Sears v. Taylor, 5 Mor. Min. Rep. 318; English v. Johnson, 12 Mor. Min. Rep. 202.

Charles DeMoisy, Esq., for respondent.

In this cause respondent, contends that the case of Darger v. LeSieur, cited by appellants, has no application. The facts present no parallel case--whatever of the decision of this court in the case of Darger v. LeSieur that might be applicable to this cause, has been overruled and modified by the decision of this court in Farmington Gold Mining Company v. Rhymney Gold and Copper Company, -- Utah . In the last-mentioned case, this court has wisely modified the rigorous rule annoounced in Darger v. LeSieur.

"If, by any reasonable construction in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient." "Courts have usually construed the statute respecting the location of mining claims with much liberty, and the sufficiency of the location with reference to natural objects or permanent monuments, is simply a question of fact," citing Lindley on Mines, sec. 318-383; Erhardt v. Boaro, 113 U.S. 527, and numerous other authorities.

This court has held that while it has power, under the Constitution, to review questions of fact in an equity case, still, when cases have been regularly tried before a court of chancery, and facts found on all material issues, the court will not disturb such findings unless they are manifestly erroneous. McKay v. Farr, 15 Utah 261; Center Creek Water & Irr. Co. v. Thomas, 19 Utah 360.

BASKIN, J. Miner, C. J., and Bartch, J., concur.

OPINION

BASKIN, J.

The complaint alleges that the plaintiff is the owner (subject to the paramount title of the United States) and in possession and entitled to the possession of the Copper Globe and the Copper Globe No. 1, No. 2, No. 3 and No. 4 mining claims, situate in Emery county, Utah; that the defendants, who are the appellants, claim an interest in said mining claims adverse to the plaintiff, but that such claim is without right. The relief prayed for is that the defendants be required to set forth the nature of their claim and that it be adjudged that the defendants have no interest in the said mining claims of the plaintiff, and that they be forever enjoined from asserting any right thereto. The answer, after denying all of the allegations of the complaint, not specifically admitted, alleges that the defendants are the owners (subject to the paramount title of the United States), in possession, and entitled to the possession of the Norma No. 2 mining claim, which is identical with the Copper Globe No. 4 mining claim, as the same is described in the complaint; that the acts of the defendants in developing their said mining claim, and no other, constitute the grievances of which the plaintiff complains; that the mining claim known as the Copper Globe No. 4, is fictitious, and has no existence whatever, and the plaintiff's claim thereto is a cloud upon the said Norma No. 2 mining claim. Defendants pray that their title to said mining claim, Norma No. 2, may be confirmed and quieted, and that plaintiff be enjoined from asserting any claim thereto.

The trial court found that, on the sixth day of February, 1899, the grantors of the plaintiff located the five mining claims described in the complaint, "by the erection of a monument of stone at the place of discovery conforming to law and posted in and upon such monument, on each of said claims, their notice of location containing the name of the lode and claim, the names of the locators, the date of location, the number of lineal feet claimed in length along the course of the vein each way from the discovery monument, with the width on each side of the center of the vein and a description of the claim located by reference to natural objects and permanent monuments in such manner as to identify the same. . . . That on the twenty-first day of March, the grantors of the plaintiff marked the boundaries of each of said lodes or claims by establishing in each corner thereof and in the center line of each claim, a monument as required by law, and marked upon each of such monuments the name of the claim, and corner, angle, and place that it represented. . . .

"That the plaintiff is now the owner of the above described mineral lands, subject only to the paramount title of the United States therein, and the plaintiff is entitled to the exclusive possession of all of the above described territory. . . .

"That at the time said defendants and their grantors entered upon said ground and attempted to locate it as Norma No. 2, it was not public mineral land open to exploration and location, but at said time plaintiff's grantors held and owned the same under a valid location as Copper Globe No. 4, and the attempted location of the Norma No. 2, by the defendants and their grantors was of no effect whatever as far as it included any of the ground within the boundaries of Copper Globe No. 4, as above described. . . .

"That defendants claim title in and to said Copper Globe No. 4, adverse to plaintiff, but said claim is without foundation or right and the plaintiff is the owner and entitled to the exclusive possession of all of the above described mining claims and lodes, known as the Copper Globe, the Copper Globe No. 1, the Copper Globe No. 2, the Copper Globe No. 3, the Copper Globe No. 4, as above described."

Each of these findings of fact is assigned as error by the appellants, and the substance of the objections thereto is that neither of them is justified by the evidence.

It appears from the answer, and the court so found, that the defendants make no claim to any of the mining property described in the complaint except the Copper Globe No. 4. The defendants' claim to that property is based on a location alleged to have been made on February 15, 1899, of the Norma No. 2. The plaintiff's claim to the Copper Globe No. 4, is based upon a location of the same, alleged to have been made February 6, 1899, the notice of the location of which, as recorded in the records of Emery county on the ninth day of February, 1899, is, as follows:

NOTICE OF LOCATION.

"Notice is hereby given, That the undersigned, having complied with the requirements of section 2324 of the Revised Statutes of the United States and the local laws, customs and regulations of this district, have located fifteen hundred feet in length by six hundred feet in width, on this, the Copper Globe lode, vein or deposit, bearing gold, silver and other precious metals, situated in No. -- District mining district, Emery county, Utah, the location being described and marked on the ground as follows, to-wit:

"Beginning at a stone monument about four feet high, where this notice is posted; thence south 300 feet to post No. 1; thence west 300 feet to post No. 2; thence north 1,500 feet to post No. 3; thence east 600 feet to post No. 4; thence south 1,500 feet to post No. 5; thence west 300 feet to post No. 1; thence north 300 feet to place of beginning. The above described monument and claim is situated about two miles south of the crossing of Devil Canyon, and about 25 miles southeast of Ferron.

"The mining claim above described shall be known as the Copper Globe No. 4.

"Located this sixth day of February, 1899.

"Names of Locators: John H. Barton; A. A. Noon; T. M. Allman; St. V. LeSieur; William A. Phillips."

and upon a regular claim of conveyances from the original locators to it.

The plaintiff does not claim that either it or its grantors have done any work on the Copper Globe No. 4 since its location, or that anything has been done respecting the same, except that on the day of its alleged location a stone monument about four feet high was erected within its boundaries and a notice of location placed thereon, and that afterwards, on the twenty-first day of March, 1899, the same was staked. It does not appear that the plaintiff has ever been in the actual possession of said mining claim.

The defendants, after locating the Norma No. 2, did considerable development work on the same, but at points many feet distant from the stone monument claimed to have been so erected on the Copper Globe No. 4, and were so engaged at the time of the institution of this action.

As the defendants were in actual possession at and before the institution of this suit, under a location, the validity of which, as appears from the record, was attacked by the plaintiff, only, on the ground of the previous location of the Copper Globe No. 4, the burden was upon the plaintiff to show that the previous location was...