O'Donnell v. Glenn

• Decision Date: 15 September 1888
• Citation: 8 Mont. 248
• Parties: O'DONNELL v. GLENN et al.
• Court: Montana Supreme Court

8 Mont. 248

O'DONNELL

v.GLENN et al.

Supreme Court of the Territory of Montana.

September 15, 1888.

Appeal from district court, Silver Bow county; before Justice DE WOLFE.

William Scallon, for appellant.

Knowles & Forbis, for respondents.

McCONNELL, C. J.

This is an action brought under section 2324, Rev. St. U. S., for the purpose of determining the right of the mining claim described in the appellant's complaint. There is no statement on appeal, nor statement on motion for a new trial, nor are the instructions made a part of the judgment roll, by bill of exceptions or otherwise. The case must be heard here upon the judgment roll, and the only controverted question presented by it is the admissibility of certain testimony, and of the declaratory statement offered by the respondent. The appellant claims the lode under the name of the “Slap-Jack Lode,” and the respondents under the name of the “Argonaut Lode.”

The bill of exceptions shows that the defendants below were permitted, over the objections of the plaintiff, to introduce the testimony of a number of witnesses tending to prove a discovery within their claim of a vein of mineral-bearing quartz other than the one which they had selected as the point at which they established their discovery shaft. The appellant contends that a location must be based upon what is found in the discovery shaft, adopted and claimed as such, and nowhere else. The Revised Statutes of the United States (section 2320) provide that “no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.” There is no provision for a discovery shaft in the statute. Any discovery will meet its requirements, provided it is made before the location, and within its boundaries; nor is there anything in the statutes of the territory which requires the election of any particular point in the claim as a discovery shaft, to the exclusion of all others. Section 1479 of the General Laws of the territory provides “that, in order to entitle any person or persons to record in the county recorder's office of the proper county any lead, lode, or ledge, there shall first be discovered on said lode, lead, or ledge a vein or crevice of quartz or ore with at least one well-defined wall.” This is the same as the act of congress supra, except that it requires one well-defined wall to be discovered. It is argued by counsel of appellant that “to allow the selection at will of any other shaft besides the nominal discovery shaft, when a location is contested, is to leave the whole matter open to uncertainty and doubt, and cause litigation. To allow it would be to allow a fraud upon the law, for, if a man may locate his discovery when there is no vein, he may place it at a point between two veins over three hundred feet apart, and thus obtain a claim to two veins, when he would legitimately be entitled to but one.” The best answer to this argument is given in the Revised Statutes of the United States, wherein they provide that “the location must be distinctly marked on the ground, so that its boundaries can be readily traced.” And, further, that all “records of mining claims *** shall contain *** such a description of the claim or claims located, with reference to some natural object or permanent monument as will identify the claim.” The fundamental mistake in the foregoing argument is that it assumes that a notice on the ground at the point of discovery is necessary when it is not required by law. All that is required is a genuine discovery of a mineral-bearing vein, with at least one well-defined wall, and such a description of it in the declaratory statement of record as will identify it, and enable a person to easily trace its boundaries. Can it be said that because a locator of a mine puts up a notice at a shaft which contains no mineral, when he has discovered mineral at another point in the same vein, and which is covered by his location, the boundaries of which can be readily traced, and the claim identified, that he cannot hold it for that reason? Certainly not. Such a holding would be to interpolate into the statute an amendment which would lead to most absurd consequences. In this case, suppose, if a locator should choose to put up a location notice between two leads, which are more than 300 feet apart, and adjust his description from this point, and leave it uncertain as to which lead he has located, such a location would be void for uncertainty, and he would hold neither. After all, it depends upon the description of his claim under the statutes. It must be reasonably certain, or it is worthless. We think the testimony upon this point was properly admitted.

2. A more difficult question is presented in regard to the sufficiency of the notice of location. It was objected to by the appellant upon the ground that it is not properly sworn to. The declaratory statement itself contains all that the law requires, but the objection is that the oath or affidavit is insufficient. It is as follows, to-wit:

“NOTICE OF LOCATION. Notice is hereby given that the undersigned, having complied with the requirements of chapter 6 of title thirty-two of the Revised Statutes of the United States, and the local laws, rules, regulations, and customs of miners, have located 1,500 linear feet on the Argonaut lode, situated in Summit Valley mining district, Deer Lodge county, Montana territory, and being more particularly described as follows, to-wit: Beginning at a stake at south-east corner, and running west 1,500 feet; thence north 600 feet; thence east 1,500 feet; thence south 600 feet, to the place of beginning. Said lode is bounded on the south by the Silversmith, and south-west by the Goldsmith, and on the east by what is known as the ‘Rooney Lode.’ Above lode runs 900 feet easterly and 600 feet westerly from the discovery shaft, and 300 feet on each side. Located December 22nd, 1880.

“JOHN H. GLENN,

“JOHN HALE,

“JOHN B. CAMERON,

“Locators.

“ Territory of Montana, County of Deer Lodge-ss.: J. B. Cameron, first being duly sworn according to law, deposes and says: That we are citizens of the United States, and are the locators of the foregoing described mining premises; that the description therein contained, as beginning at a stake at the south-east corner, running west 1,500 feet; thence north 600 feet; thence east 1,500 feet; thence south 600 feet, to place of beginning,-is true, and that the locators, whose names are subscribed thereto are bona fide residents of Montana territory. [Signed] JOHN B. CAMERON.

“Subscribed and sworn to before me this 24th day of December, 1880.

[Signed] “A. W. BARRETT, Notary Public.

“Filed Nov. 2nd, 1887.

[Signed]. “W. F. SHANLEY, Clerk.”

The Revised Statutes of the United States (section 2324) provide that “all records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim.” The oath given supra shows that it does not contain the date of location. It is also contended that it does not contain any reference to a natural object or permanent monument so as to identify the claim. The description given in the affidavit is as follows, to-wit: “Beginning at a stake at the south-east corner, running west 1,500 feet; thence north 600 feet; thence east 1,500 feet; thence south 600 feet, to the place of beginning.” The question as to whether this is a sufficient description or not is a mixed one of law and fact. Definition and meaning of words used in a statute are matter of law, and as to whether the objects described come within the definition is a matter of fact for the jury. The location must be so marked on the ground that its boundaries can be readily traced. It must refer to some natural object or permanent monument, so as to identify the claim. There is no natural object referred to in the affidavit, and the only question is whether reference is made to anything that can be called a “permanent monument.” In the case of Mining Co. v. Mining Co., 9 Morr. Min. R. 529, the court says that a “permanent monument” may consist of a stake located on the claim, and firmly planted in the ground. And in the case of Russell v. Chumasero, 4 Mont. 317, 1 Pac. Rep. 713, the court held that “it is not for a court to say, by looking at a record or declaratory statement, what are or what are not ‘permanent monuments.’ That is matter of proof. A stake or a stone of the proper size, properly marked, may be a ‘permanent monument.”’ We hold that it is for the court to define in the instructions given to the jury what is a “permanent monument” within the meaning of the statute, and for the jury to determine from the evidence whether the object described in the notice of location comes within the requirements of the law. The description given in the oath calls for beginning at a stake. Whether that stake was of such...