Dillon v. Bayliss
| Decision Date | 06 October 1891 |
| Citation | 27 P. 725,11 Mont. 171 |
| Parties | DILLON v. BAYLISS. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; WILLIAM H HUNT, Judge.
Action by John L. Dillon against Rawlinson T. Bayliss to determine the right of possession of certain mineral lands. Judgment for plaintiff, and defendant appeals. Reversed.
This action is a contest between claimants of mineral lands upon the public domain of the United States. Defendant applied to the government for a patent to the Maskelyne quartz lode mining claim. Plaintiff filed his adverse claim in the appropriate land-office, alleging that he owned the premises by virtue of his location of the Kilby claim. Plaintiff then commenced this action in the proper court, for the purpose of determining the right of possession of the premises between the claimants. The contention is therefore between the two claims, the Kilby and the Maskelyne. The Kilby location was made on January 2, 1882; that of the Maskelyne was April 5 1883. As the Kilby locator had all of the years 1882 and 1883 in which to perform his first annual representation work forfeiture was not a question in the case. If the Kilby location was valid, and abandonment had not taken place, the Maskelyne location was a nullity. On these lines the case was tried. Defendant's attack was upon the Kilby location and was made upon the following grounds: The description of the Kilby, as contained in the location notice, was as follows: Defendant objected to the introduction of this notice of location, on the ground that it is indefinite and uncertain, and contained no sufficient description of the so-called "Kilby Lode," so that the same could be identified. The objection was overruled, and the notice admitted. This appellant assigns as error.
Another alleged error relied upon is the refusal of the court to allow certain civil engineers to testify whether a skilled engineer could take the description in the notice, and, with knowledge of the surrounding geography, find the claim on the ground. To make this point clear it is necessary to state some of the evidence introduced prior to this offer by defendant. It is observed that the location notice places the Marble Heart claim on the south-east, the Nine Hour claim on the south-west, and the St. Louis on the north. Michael Gleason, a witness for plaintiff, testified that the Marble Heart was on the north, the Nine Hour on the south, and the St. Louis on the west. A witness (Senate) for defendant testified to the same effect. A. E. Cummings, on the part of defendant, who qualified himself as a skilled engineer, and as well acquainted with the ground, said that the Nine Hour was southerly, and the St. Louis on the west, and the Marble Heart on the north-east; that he had taken the plat of the Kilby, as filed in the United States land-office, upon the adverse claim, and gone upon the ground. He was, while on the witness stand, shown the location notice of the Kilby, and asked whether a skilled civil engineer could take the description in the location notice, and from it find the Kilby claim. James S. Keerl also qualified himself as a civil engineer, and was asked practically the same question. George H. Robinson, also a civil engineer, went into details as to the premises, and his knowledge of them, and the surrounding ground and monuments. He was then asked the same question as that propounded to Cummings and Keerl. Pursuing this line, the defendant offered to prove by these witnesses that it would be impossible to take the description in the notice of location of the Kilby, and from it locate the Kilby claim on the ground. This evidence was objected to by plaintiff, on the ground that whether the description was sufficient was a question for the determination of the court, which was concluded by the admission in evidence of the notice of location of the Kilby. The objection was sustained by the court. This position taken by the court is also assigned as error.
Cullen, Sanders & Shelton, for appellant.
Toole & Wallace, for respondent.
DE WITT, J., (after stating the facts.)
We will discuss the two points suggested in the above statement of the case. Was the location notice properly admitted in evidence? Did the court properly exclude evidence tending to show that the description in the notice was not sufficient to identify the claim?
1. The Revised Statutes of the United States, (section 2324,) under which locations of mining claims may be made upon the public domain, provide: "All records of mining claims *** shall contain *** such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim." The description in the location notice of the Kilby claim is by reference to three alleged adjoining claims; the Marble Heart, the Nine Hour, and the St. Louis. A description by reference to an adjoining mining claim is a sufficient reference to a permanent monument to allow the notice of location to be introduced in evidence, and it then becomes a matter of proof as to whether the adjoining claim is a permanent monument. In prescott v. Metcalf, 10 Mont. --, 25 P. 1037, is the last affirmance which this court has made of a line of decisions to that effect. Therefore, the reference to a permanent monument was sufficient in the Kilby location notice to allow it to be introduced in evidence.
Appellant's counsel, as appears by the records of this court, is not without a share in the labor of establishing this doctrine upon the firm foundation on which it now rests in this court and in the argument at the bar in this case he cordially assents to its continued stability. But his objection to the location notice goes beyond the principle just cited. Admitting that the three mentioned adjoining claims are permanent monuments, yet he says that the reference to them does not identify the claim. We are prepared to concede that no matter how permanent and prominent the monument may be, or how conspicuous and certain the natural object is, yet, if there was no intelligent reference to them that would identify the claim, the description would not satisfy the requirements of the United States law. The very object of selecting a natural object, or erecting or referring to a permanent monument, is, in the language of the statute, to identify the claim. As remarked by Judge HALLETT in Faxon v. Barnard, in the circuit court of the United States for the district of Colorado, 9 Morr. Min. R. 515: ...
To continue reading
Request your trial