First Nat. Gold Min. Co. of New York & Colorado v. Altvater

• Decision Date: 05 December 1906
• Docket Number: 2,342.
• Citation: 149 F. 393
• Parties: FIRST NAT. GOLD MINING CO. OF NEW YORK & COLORADO v. ALTVATER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

149 F. 393

FIRST NAT. GOLD MINING CO. OF NEW YORK & COLORADO v. ALTVATER et al.

No. 2,342.

United States Court of Appeals, Eighth Circuit.

December 5, 1906

H Riddell and E. W. Hurlbut, for plaintiff in error.

William H. Bryant (Charles S. Thomas and William P. Malburn, on the brief), for defendants in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District judge.

PHILIPS District Judge.

The plaintiff in error, the First National Gold Mining Company of New York and Colorado, in 1901 made application to the General Land Office of the United States for a patent on what is known as the 'Burroughs Lode,' embracing a number of alleged contiguous mines hitherto known as the 'Garrison,' the 'Vanderen,' the 'Beverly,' the 'Ford,' the 'Farmer,' and on the west of said group the 'Garrison,' the latter embracing 233 2/3 feet in length and 50 feet in width. The said mines had been located, perhaps, as early as 1859. The First National Gold Mining Company claims to have acquired said mining claims prior to 1889. There was no record evidence of the title to the said Vanderen, Beverly Ford, and Farmer claims beyond a prior occupancy by the plaintiff in error and its predecessors. Said application for a patent was adversed by John Clear, Joseph Updegraff, and Martin Lawler, who are represented in this litigation by their respective administrator and administratrix. The said John Clear in his lifetime became the assignee of the property in controversy under a location made thereon August 20, 1891, known as the 'John Clear' location, August 20, 1891. Conformably to the provisions of section 2326, Rev. St. (U.S. Comp. St. 1901, p. 1430), the adversing claimants instituted this action to determine the rights of the respective claimants to the premises.

The statute applicable to the situation (section 2324, Rev. St. U.S. 1878 (U.S. comp. St. 1901, p. 1426)) declares that:

'On all claims located prior to the tenth day of May, 1872, ten dollars' worth of labor shall be performed or improvements made by the tenth day of June, 1874, and each year thereafter, for each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to re-location in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.'

The contentions made in the pleadings on behalf of the plaintiffs below are (1) that when said Clear made his discovery location and sunk his shaft in August, 1891, the premises were public domain, subject to entry, because the defendant below had not done the required amount of assessment work thereon for the years 1890 and 1891; and (2) that even if the defendant below did any such work, it was at the easterly end of the entire strip of ground, and as it had not shown any title to the 200 feet embracing the said Vanderen, Beverly, Ford, and Farmer claims, of 200 feet in length, the assessment work done on the strip east thereof could not be regarded as sufficient to preserve the other claims. At the conclusion of the evidence the court directed a verdict for the plaintiffs below.

As the ground in controversy, where Clear and others made their alleged discovery shaft in August, 1891, had never been patented, it was subject to location if there had not been done the required amount of work thereon for the year 1890 by the applicant for the patent. Lawler and Updegraff having died before the hearing, their testimony is absent. There is no claim made that the defendant below did any assessment work in 1891 before the location of the Clear lode, but it is claimed that the required assessment work was done in 1890 on the 183-foot strip in the shafts and drifts thereon, known as the Gould Shaft. The substance of the testimony on behalf of the plaintiffs below was as follows: Said Clear testified that he had lived for many years in the immediate vicinity of the Burroughs lode, and had known it for many years; it was about 400 feet from where he lived. He saw no work done thereon in 1890, although he worked on the Camp Grove mine, 300 or 400 feet away, for three months in 1890; that in passing from the Camp Grove to his home he went within about 300 feet of the Burroughs mine; that he worked on the Kansas lode about 150 feet therefrom; that nobody did any work on the Burroughs lode to his knowledge; that he saw the Gould shaft on that part of the Burroughs lode every day in the week from his boarding house, and did not see anybody about the Gould shaft in 1890, and that he did not believe that any one could have been working there without his seeing them.

Harvey Henry, who had lived near this place since 1865, who was an engineer and miner, testified that he knew the premises ever since he went there, and that he worked on the Camp Grove in 1890; that to the best of his knowledge no work was done on the Burroughs in that year; that he would have seen the work had it been done because he was working right there close to it always. The Camp Grove claim was 450 or 500 feet away; that he worked as an engineer on that claim, which kept him on the surface and in plain view of the Burroughs; that he worked on the Camp Grove claim during the last eight months of the year, but lived in Nevadaville, close by, right along. He was satisfied that no work was done on the Burroughs for the year 1890, because he was passing back and forth all the time; that there was hardly a day but that he passed around the mine somewhere; that he worked on the Phoenix a few days, and that the parties could not have worked on the Burroughs during the first part of 1890 without him seeing them; that if anyone had worked there he must have known it. He testified that he knew the witnesses of the defendant below, William Williams and Arthur Lugg, and he knew Matthews in his lifetime, and that if these men had been working up there the first three or four months of 1890 he must have known it.

James Williams, a miner, knew the Burroughs lode about 20 years. In 1890 he worked on the Leavenworth, about a mile from the Burroughs, and passed within 600 or 700 feet of the property every day, and did not know of any work having been done thereon in 1890, and that he would have known it if it had been done. The ground he worked on was west of the Burroughs lode, about 350 feet west of the Clear Discovery shaft. Did not see anybody working in the Gould shaft; that if anybody had been working there in the spring of 1890 he would have known it because he knew where the men in the...