Faxon v. Barnard

• Decision Date: 04 November 1880
• Citation: 4 F. 702
• Parties: FAXON v. BARNARD and others.
• Court: U.S. District Court — District of Colorado

4 F. 702

FAXON v. BARNARD and others.

United States Circuit Court, D. Colorado.

November 4, 1880

G. G White, for plaintiff.

Markham & Patterson and Thomas & Cambell, for defendants.

HALLETT D.J.

Plaintiff claims the Ontario lode as having been discovered by George A. Gibson and others, on the public land, February 11, 1878 and the location completed in July of the same year. Defendants claim the Green Mountain lode as having been discovered by Benjamin Barnard in August 1877, and the location completed by filing for record a certificate of location in March, 1878. These are rival locations, overlapping each other at the north end of the first and the south end of the second to the extent of 2 17-100 acres, which is the ground in controversy in this suit. A question common to both claims is whether a certificate of location must be filed of record in the office of the recorder of the county in which the claim may be, within three months next after the discovery of the lode, as required by the act of assembly of 1874. Rev. St. 629. In terms, the act requires the certificate to be filed within that time; and, to secure the claim from the date of discovery against intervening claimants seeking to locate the same ground, it would seem to be necessary to comply with its provisions. But no reason is perceived for saying that the certificate shall be invalid if not filed within the time fixed by law. The design of the law clearly is to give the discoverer time for doing the acts necessary to a proper location. He may sink his discovery shaft within 60 days; he may put up his discovery notice, and his boundary stakes, and record his certificate of location within three months; failing in this he shall have no right as against one who has been more diligent in fulfilling the statute, although later in point of time. But when all things have been done as the act requires, before any other and better right to the same ground has been perfected, it seems to be just and entirely consistent with the statute to recognize the location as having been properly made.

Applying this rule in the present case, and accepting the averments of the parties respecting their locations as true, we find that although each overstepped the statute, they may have precedence according to the dates of discovery. Beginning in February, 1878, plaintiff's grantors completed their location in July of that year. It is indeed stated in some affidavits in support of the bill t at the Ontario lode was discovered in the autumn of 1877. But we cannot allow the plaintiff to go aside from or beyond the allegations of his bill, and as he has averred that the lode was discovered in February, 1878, that will be accepted as the true date. Beginning in August, 1877, defendants completed their location in March, 1878, at which time plaintiff's grantors had not secured any right to the ground in controversy, as they had not then done all that was required to complete their location. If, then, the matters in issue were to be determined upon the question of priority of discovery and location, defendants would prevail. There is, however, another objection to defendants' certificate of location, that it does not refer to a natural object or permanent monument from...