Eilers v. Boatman

• Decision Date: 09 January 1883
• Citation: 2 P. 66,3 Utah 159
• Court: Utah Supreme Court
• Parties: EILERS v. BOATMAN ET AL

2 P. 66

3 Utah 159

EILERS v. BOATMAN ET AL

Supreme Court of Utah

January 9, 1883

APPEAL from the third district court. The opinion states the facts.

Affirmed.

Sutherland & McBride, for the appellant.

Bennett & Harkness, for the respondents.

EMERSON J. HUNTER, C. J., and TWISS, J., concurred.

OPINION

EMERSON, J.:

The defendants in this case having made application for the government title to a certain mining claim, called by them the "Nabob," the plaintiff filed an adverse claim to a portion of the premises, as a part of the Virginia mining claim, which was discovered, located, and owned by him, and in due time he commenced this action to determine the right of possession of the ground in controversy. The case was tried in the court below without a jury, and resulted in a judgment for the defendants. The plaintiff appeals from the judgment, and also from an order denying his motion for a new trial.

The findings of fact and conclusions of law are as follows "1. On or about the fourth day July, 1877, the defendants located the Nabob mining claim, situate in Little Cottonwood mining district, Salt Lake county, Utah, upon a lode of rock in place bearing silver and other metals, the claim consisting of one thousand five hundred feet in length, to wit, fifty feet south-easterly from the discovery point, and one thousand four hundred and fifty feet north-westerly from the same point. That a notice of location was posted at the discovery point, in which was given the date of location, to wit, July 4, 1877, the names of the locators, the extent of the claim, and described the same as situated on Flagstaff Hill, about one hundred and fifty feet, more or less, westerly from the discovery shaft of the Flagstaff mine, and about thirty six feet, more or less, north-easterly from the northerly side line of the Rough and Ready patented ground; and the metes and bounds were therein stated to be described by a stake driven fifty feet south-easterly from the discovery shaft, marked "No. 1," thence running north-westerly five hundred feet to a red-pine stump blazed on north side, thence to a tree over the divide marked nine hundred feet, thence to a point six hundred feet distant in Day's Fork. A copy of the same notice was filed for record in the office of the recorder of said mining district on the ninth day of July, 1877.

"2. That said locators continued in possession of said claim, actually working the same by an incline run downward from the discovery point, until after the location of the Virginia mining claim; and on the day of the location of the Virginia mining claim, the Nabob was being worked by several men on the conflict area, and a shanty was there erected.

"3. That the locators and claimants of the Nabob mining claim in each year since the location have done more than one hundred dollars' worth of work thereon.

"4. That at the time of the location the locators marked the claim on the ground by setting a stake at the discovery point, by setting a stake in the center of the south-easterly end line marked "No. 1, Nabob," by setting a stake at each corner of the south-easterly end line, by blazing and marking a red-pine stump on the center line about five hundred feet north-westerly from the south-easterly end center stake, and by blazing and marking a tree on the center line about nine hundred feet north-westerly from the south-easterly end of the claim. That no marks on the ground were made either by the locators or the surveyor, who surveyed the claim for a patent on the north-westerly six hundred feet of the claim, the ground being down a steep and inaccessible declivity, and the patent survey of that portion being made by triangulation. That the survey of the Nabob mining claim, as set forth in the answer, is substantially in conformity to the boundaries thereof as located.

"6. That on the 10th day of August, 1877, the plaintiff located the Virginia mining claim, and recorded the same, and marked it on the ground so as to include the conflict area in dispute, and on which the defendant were at work as aforesaid. The notice posted and recorded was sufficient under mining laws; and the plaintiff has yearly done more than one hundred dollars' worth of work thereon."

As a conclusion of law it was found:

"1. That the notice of location of the Nabob mining claim contained a sufficient description by reference to natural objects and permanent and well-known monuments to identify the same.

"2. That said Nabob claim was so marked on the ground that its boundaries could be readily traced.

"3. That by reason of the prior location of the Nabob mining claim, and a compliance in respect thereto with mining laws and customs by the defendants, the defendants at the commencement of the action were and still are entitled to the possession of the area in conflict with the Virginia claim, and are now entitled to judgment for said area and costs."

The motion for a new trial was based upon the following grounds, viz.: "1. Insufficiency of the evidence to justify the finding of facts made by the court; 2. That the findings and decision are against law."

Under the first assignment are the following specifications, viz.:

"1. The evidence shows that the boundaries of the Nabob claim were not established on the limits of the claim defined, at the time of the location, or afterwards, until the Virginia was located, surveyed, and marked on the ground and recorded; whereas, the first and fourth findings of fact find that the defendants located the Nabob by the metes and bounds described therein and marked the same on the ground.

"2. The notice of location of the said Nabob claim as posted and recorded, is insufficient either as a notice or a record to indicate the existence of any lawful claim."

On the ground that the findings and judgment are against law, the following are the specifications of error, viz.:

"1. The notice of location on the Nabob was insufficient. The notice of the claim as recorded was insufficient.

"2. The claim was not so marked on the ground that its boundaries could be readily traced, or so that they could be found, until after the survey and location of the Virginia claim.

"3. The lode upon which the claim called the Nabob was located, including all that part in controversy, was then occupied underground, and had been since 1872, as a mine by the Flagstaff Silver Mining Company, who then and always had claimed to own the vein, and no adverse claim could be initiated to it by the defendants under such circumstances.

"4. The Nabob location having been made on a vein then actually occupied for mining purposes by other parties, the same was void, and could confer no right or title to the possession upon which a claim for a mineral patent could be based; and the judgment that the defendants are the owners of said ground in dispute is erroneous."

The second assignment of error under the first ground of the motion for a new trial, and the first assignment under the second ground, seem to have been abandoned by the appellant, as neither is mentioned in his brief, nor referred to on the argument. The record contains no copy of the notice of the Nabob location. According to the findings of the court, which we must presume were supported by the evidence, the conclusion of law that the notice contained a sufficient description by reference to natural objects and permanent and well-known monuments to identify the same was correct.

The evidence establishes the fact that the south-easterly nine hundred feet of the Nabob claim was, at the time of its location, plainly marked out on the ground, not alone by posts and stumps, distinctly marked, along the center line of the claim, but also by stakes at both...