Duggan v. Davey

• Decision Date: 09 February 1886
• Citation: 26 N.W. 887,4 Dakota 110
• Parties: DUGGAN v. DAVEY
• Court: North Dakota Supreme Court

26 N.W. 887

4 Dakota 110

DUGGAN v. DAVEY

Supreme Court of North Dakota

February 9, 1886

A very full statement of facts appears in the opinion of the court.

Judgment and orders affirmed.

McLaughlin & Steele, for defendants, who appeal.

It has been the settled policy of the government to promote the development of the mining resources of the country. Haydenfeldt v. Daney Gold, & Co., 3 Otto 640; Jennison v Kirk, 8 Otto 457.

The intention of the legislature when ascertained must control even when necessary to enlarge, restrict or qualify the meaning of words used. Eureka Richmond Case, 4 Sawyer, 316; Haydenfeldt v. Daven Gold, & Co., 3 Otto, 638.

A relocation certificate depends for its vitality on the original location; that, upon a valid discovery of a vein or lode of quartz or other rock in place bearing valuable mineral in the unappropriated public lands of the United States, by a citizen or one who has declared his intention to become such, the posting of a location notice at the point of discovery, sinking of a discovery shaft, marking of the boundaries of a claim, and the filing for record of a location certificate in the proper office.

See Sections 13 and 16 of Chapter 31, Codes of Dakota, relating to mines and mining, page 161, as to when an "amended certificate" of location, and a "relocation certificate" can be made and filed, and what each one must contain. Sullival et al. v. Hense et al. 2 Colo. 431; Strepey et al. v. Stark et al., 7 Col. 614; Van Zandt v Argentine Mining Co. 2 McCrary (8 U.S. Cir.) 159; Upton v. Larkin, 6 P. No. 2, p. 66, March 19, 1885, Sup. Court Montana.

The only purpose for which this certificate could be offered was to show that plaintiffs or their grantors, had by acts obtained a right to the possession, prior to the title by patent, and that by relation the patent took effect as of the date of such acts. The effect of the ruling of the court is: That a party may, by his own declarations, relate back his title, without proof of any of the acts, upon the performance of which only, could he obtain rights upon which the patent could operate by relation.

Records made by applicants for patent in the United States land office are purely ex parte, and in no wise competent proof of the issues involved in a suit involving title to a mining claim.

They would deprive the opposing party, as in this case, of his right of cross examination, and of testing the truthfulness of the other's declarations, in his own favor in the land office. Bay State Silver Mining Co. v. Brown, U. S. District Court, State of Nevada, 21 F. 169, No. 3, Sept. 9, 1884.

It was possible and convenient for the plaintiffs to have shown by some evidence (if the fact were true) that the defendants were not within the "exception" in the patent, were not the proprietors of the vein, lode, ledge or deposit on which they were working beneath the surface of the Silver Terra, but were in fact tresspassers. 3 Washburn on Real Property, 431; Stockbridge Iron Co v. Hudson, 107 Mass. 321, 11 Brown 321; Corning v. Troy Iron Works, 40 N.Y. 209; Bridger v. Pierson, 45 N.Y. 601-3; West Point Co. v. Reymert, 45 N.Y. 707; Bowen v. Connor, 6 Cushing, 132; Dennis v. Wilson, 107 Mass. 591; Munn v. Warrell, 53 N.Y. 44; Whittaker v, Brown, 46 Penn. St. 197; Marvin v. Brewster, 55 N.Y. 538; Sloan et al. v. The Lawrence Furnace, 29 Ohio St. 568; Rychman v. Gillis, 57 N. Y, 68; Hudson Co. v. Stockbridge, 11 Brown 290, 107 Mass. 290.

To maintain an action of ejectment for a mining claim, the plaintiff must establish that he is in possession, and that a vein or lode has been discovered on the claim prior to the commencement of the action, and that it extends to the ground for which he sues.

The burden is on the plaintiff to establish the fact that ore was discovered in his discovery shaft and that the same is continuous to the ground in controversy. Zollars v. Evans, 2 McCrary, 39; Van Zandt v. Argentine Mining Co. 2 McCrary 159.

The burden of proof was upon the plaintiffs to show ownership of the vein at the point where the alleged trespass was committed. Zollars v. Evans, 2 McCrary, 41; Van Zandt v. Argentine Mg. Co. 2 Id. 163; Leadville Mg. Co. v. Fitzgerald, 4 Morrison Mining Reports, 380; Jupiter Mg. Co. v. Bodie Mg. Co. 11 F. 669-672.

The patent from the United States is not conclusive that the Silver Terra lode mentioned therein is a vein or lode within in the meaning of the statutes, bearing valuable minerals or extends to the ground in controversy. Stephens v. Williams, 1 McCreary 480; Leadville Mining Co. v. Fitzgerald et al. and Stevens & Litter v. Murphy et al. 4 Morrison Mining Reports, 380.

Van Cise & Wilson, for respondents.

It was contended by the defendant's counsel that before plaintiffs could recover, they must first show the acts constituting a valid location of the Silver Terra, to-wit: discovery of a vein, lode or ledge, sinking a discovery shaft, posting a notice, fixing boundary stakes, recording certificate, etc., and that they had within the limits of their claim the apex of the ore body upon which they sought to enjoin the defendants from trespassing upon. In the absence of a patent all this would have been necessary had the plaintiffs been seeking to enjoin the defendants from trespassing on an ore body outside of plaintiff's lines; but this is an action to protect and preserve the property within the limits of plaintiff's actual possession, and of which they were in possession prior to the trespass of the defendants. In such case the proof of possession alone would be enough to cast the burden on defendants, either in an action of ejectment or an action brought, as this, to restrain a trespass. This doctrine is so well established that the citation of a few cases to support it will be sufficient: English v. Johnson, 17 Cal. 108; Golden Fleece Co. v. Cable Con. Co. 12 Nev. 321; Sears v. Taylor, 4 Colo. 38; Crossman v. Pendery, 8 F. 693; Harris v. Equator M. & Sm. Co., Copp's M. L. 420; North Noonday M. Co. v. Orient M. Co., 6 Saw. 507; Burt v. Panjaud, 9 Otto 180; Campbell v. Rankin, 9 Otto 281; Trenouth v. San Francisco, 10 Otto 251; Field et al. v. Gray et al. 9 Copp's L. O. 157; U. S. Revised Statutes, Section 910.

But in this case plaintiffs proved title by patent from the government. The grant itself is evidence that every prerequisite to its issuance has been duly performed. Abbott v. Prineaux, 16 Nev. 361; French v. Fyan, 103 U.S. 169; Smelting Co. v. Kemp, 104 U.S. 636; Steele v. Smelting Co., 106 U.S. 447; Hawke v. Deffebach, 4 Dak. 20.

In the case of patents for mineral claims, the rule is that the patent relates to the location. Kahn v. Old Tel. Min. Co., 2 Utah 174, 185, 198; Eureka Case, 4 Saw. 302, 317; Heydenfeldt v. Daney G. & S. M. Co., 103 U.S. 634; Kimball v. Gearhart, 12 Cal. 28.

A "mining claim" is a parcel of land containing precious metals in its soil or rock. Smelting Co. v. Kemp, 104 U.S. 649; Hawke v. Deffebach, 4 Dak. 20, 22 N.W. 487; Gleason v. Martin White Co., 13 Nev. 458; Wolfley v. Lebanon Min. Co., 4 Colo. 114; McCormack v. Varnes, 2 Utah 362; Iron Silver Min. Co. v. Cheeseman, 8 F. 300; Forbes v. Gracey, 94 U.S. 767; Pacific Coast M. & M. Co. v. Spargo, 8 Saw. 645; Cowell v. Lammers, 21 F. 200.

In mining cases courts of equity, when once convinced of the propriety of so doing, will compel an inspection and survey of the works of the parties, and admittance thereto by means of the appliances in use at the mine. This will be done when the facts by which the controversy must be determined cannot be discovered, except by an inspection of the works in the possession of defendants, accessible only by shafts and machinery operated near the mine. Before granting an order of this kind, the court must be satisfied that the application is made in good faith, and, in granting it, will pay due regard to the convenience of the party affected. Thornburgh v. Sav. Min. Co., 1 Pac. Law Mag. 267 (U. S. Cir. Ct. Nev.); Bennitt v. Whitehouse, 28 Beav. 119, 29 L. J. Ch. 326; Ennor v. Barwell, 1 De G. F. & J. 629; Bennett v. Griffiths, 30 L. J. Q. B. 98 7 Jur. N. S. 284; Att'y General v. Chambers, 12 Beav. 159; Blakesley v. Whieldon, 11 L. J. N. S. Ch., 164; Whalen v. Branker, 10 Law Times, N. S. 155; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; Thompson Iron Co. v. Allentown Min. Co., 28 N.J.Eq. 77.

CHURCH, J. For affirmance: EDGERTON, C. J., HUDSON, CHURCH, PALMER, and SMITH, JJ. For reversal: FRANCIS, J.

OPINION

CHURCH, J.

This was an action in equity, brought by the plaintiffs, as owners of the Silver Terra mine, to restrain the defendants from prosecuting certain mining operations, by which it was alleged they had already approached, and were threatening and intending to enter within, the lines of the plaintiffs' claim, and remove certain valuable bodies or deposits of silver ore therefrom. The complaint alleged ownership by the plaintiffs in fee of the Silver Terra mine, (mineral claim lot No. 364,) and described the same by metes and bounds. It also stated sufficient grounds for equitable relief by way of injunction, and prayed (1) for the usual injunction yen dente lite; (2) for perpetual injunction at the final hearing; (3) for general relief. A preliminary injunction was granted, and, upon a motion to dissolve, was continued in force.

The answer of the defendants, after denying "each and every allegation of the complaint, except as hereinafter specifically admitted," proceeded to allege with great particularity of detail their ownership and possession of a certain quartz mining claim known as the "Sitting Bull" lode, with all veins, lodes, or ledges of valuable mineral bearing rock in place, throughout their entire depth having their top or apex within the exterior...