Flynn Group Mining Co. v. Murphy

Decision Date23 May 1910
PartiesFLYNN GROUP MINING CO., Appellant, v. FRANK MURPHY, Respondent
CourtIdaho Supreme Court

MINING CLAIMS - LOCATION OF - APPLICATION FOR PATENT - ADVERSE CLAIM-FINDINGS OF FACT-CONFLICTING EVIDENCE-NEWLY DISCOVERED EVIDENCE - EXCESSIVE LOCATIONS - INNOCENT ERROR - FRAUDULENT INTENTION - WHEN PRESUMED - REQUIREMENTS OF STATUTE-DISCOVERY POINT-EXTENT OF VEIN ON EACH SIDE OF-DEFECTIVE NOTICE-FIVE YEARS' POSSESSION.

(Syllabus by the court.)

1. When there is a substantial conflict in the evidence upon which any finding of fact is based, such finding will not be reversed on appeal.

2. Held, that the court did not err in denying a new trial on the ground of newly discovered evidence.

3. A subsequent valid location of a mining claim in this state cannot be made on mineral land that is already covered by a valid location.

4. Where a discovery is made on a vein of mineral-bearing rock and the notice provides that such claim extends 700 feet in a northwesterly direction and 800 feet in a southeasterly direction from such discovery, and the corner stakes on the southeasterly end are so placed as to take in more than 800 feet of such vein, subsequent locators may legally locate the excess of ground, as the first location is valid only to the extent of 800 feet southeasterly from the point of discovery on said claim.

5. The law requires the locator to make his location so definite and certain that from the location notice and stakes and monuments on the ground the limits and boundaries of the claim may be ascertained, and so definite and certain as to prevent the changing or floating of such claim.

6. Where the boundaries of a claim are made excessive in size with fraudulent intent, it is void; or if so large as to preclude the presumption of innocent error, fraud will be presumed.

7. Under the provisions of sec. 3207, Rev. Codes, the locator of a mining claim is required to erect a monument at the place of discovery upon which, among other things, he must place the distance claimed along the vein each way from such monument.

8. Held, that where a location notice states that the mining claim which it describes extends 700 feet in a northwesterly direction and 800 feet in a southeasterly direction along the lode, a locator may go to the point of discovery of such claim and measure the ground from the discovery point 800 feet in a southeasterly direction along the lode, and if there be any unlocated ground beyond that 800 feet, may legally locate it, regardless of the fact that the easterly end stakes had been established beyond the 800 feet.

9. The case of Nicholls v. Lewis & Clark Mining Co., ante, p. 224 109 P. 846, cited and approved, and the case of Atkins v Hendree, 1 Idaho 95, cited and disapproved so far as it holds that no fraud can be perpetrated where there exists the means of ascertaining or discovering the fraud.

10. Under the provisions of sec. 3207, Rev. Codes, 1909, the location notice is not required to describe the exterior boundaries of the claim.

11. Where it appears that a mining claim has been located in good faith, if by any reasonable construction the language used in the location notice describing the claim and referring to natural objects and permanent monuments imparts knowledge of the location of such claim to a subsequent locator, it is sufficient.

12. Held, that the locator had actual notice that the ground in controversy had been located, as well as constructive notice by an examination of the recorded notice, and that no technicalities will be resorted to to sustain his relocation of the same ground.

13. Held, that the finding of the court to the effect that the respondent had performed the assessment work on the Murphy Fraction for nine years and that he had worked and was in possession of said fraction for more than five years, and that during said period of time there was no adverse claim made to said premises or to any part thereof, is fully sustained by the evidence.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Wm. W. Woods, Judge.

An action brought in support of an adverse claim on application for a patent to a mining claim. Judgment for the defendant. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

Franklin Pfirman, for Appellant.

The surface ground of a lode mining claim can only be of the length of 1,500 feet and width of 600 feet, but if the location exceeds that it is void only as to excess. (Burke v. McDonald, 2 Idaho 679, 33 P. 49, 13 Morr. Min. Rep. 325; 1 Lind. Mines, 2d ed., sec. 362; Snyder on Mines, 398; Stemwinder Min. Co. v. Emma Min. Co., 2 Idaho 456, 21 P. 1040; Jupiter Min. Co. v. Bodie Min. Co., 11 F. 666, 7 Saw. 96, 4 Morr. Min. Rep. 411; English v. Johnson, 17 Cal. 108, 76 Am. Dec. 574, 12 Morr. Min. Rep. 202; Howeth v. Sullinger, 113 Cal. 547, 45 P. 841; Patterson v. Hitchcock, 3 Colo. 533, 5 Morr. Min. Rep. 542; Taylor v. Parenteau, 23 Colo. 368, 48 P. 505, 18 Morr. Min. Rep. 534; Hansen v. Fletcher, 10 Utah 266, 37 P. 480; McPherson v. Julius, 17 S.D. 98, 95 N.W. 435; McElligott v. Krogh, 151 Cal. 126, 90 P. 823.)

When a claim is excessive in length, the owner has the right to elect what portion he will relinquish as the excess, and cannot be required to surrender any particular portion by the location thereon of an overlapping claim by another. (Zimmerman v. Funchion, 161 F. 859; Credo M. & S. Co. v. Highland M. & M. Co., 95 F. 911; McIntosh v. Price, 121 F. 716, 58 C. C. A. 136; Rose v. Richmond Min. Co., 17 Nev. 25, 27 P. 1105, at page 1111; affirmed on this point expressly in Richmond Min. Co. v. Rose, 114 U.S. 576, 5 S.Ct. 1055, 29 L.Ed. 273; Gohres v. Illinois & J. Gravel M. Co., 40 Ore. 516, 67 P. 666.)

The pretended location notice of the Murphy Fraction is so radically defective as to be void even under the most liberal rule.

Reasonable notice of the position of the claim is required to be shown in the location notice; such a description of the locus of the claim that a person of ordinary intelligence would be enabled to find the claim from the directions contained in the notice, taken in connection with the boundaries of the claim on the ground. (Bismark Mt. G. M. Co. v. North Sunbeam G. Co., 14 Idaho 516, 95 P. 14; Morrison v. Regan, 8 Idaho 291, 67 P. 955; Ledoux v. Forester, 94 F. 600; 1 Lindley, Mines, 2d ed., sec. 381.)

Gray & Knight, for Respondent.

Where a claim is excessive in area it is not void unless the excess is so great as to impress the locator with fraudulent intent. Any other locator may go to the point of discovery and measure the ground from the discovery notice and locate the excess. The location notice is required by the law as a notice to other prospectors and to the world of the extent of the locator's claim. (Atkins v. Hendree, 1 Idaho 100; Stemwinder Min. Co. v. Emma Min. Co., 2 Idaho 462, 21 P. 1040; Lindley on Mines, sec. 362; Snyder on Mines, secs. 397, 398; Shamel, Mining Law, pp. 118, 119.)

There is no provision in the law requiring that the exterior boundaries of a mining claim should be described. The description of the ground located by reference to adjoining claims is sufficient. (Morrison v. Regan, 8 Idaho 291, 67 P. 955.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action in support of an adverse claim under the provisions of U.S. Rev. Statutes, sec. 2326. It appears that in June, 1908, the respondent, Murphy, claiming to be the owner of the Murphy Fraction lode, situated in Lelande Mining District, Shoshone county, made application for a patent therefor in the United States land office at Coeur d'Alene, to which application the appellant, the Flynn Group Mining Co., which will hereafter be referred to as the mining company or the appellant, filed its adverse claim, and thereafter on October 6, 1908, commenced this action in support of said adverse claim.

The mining company's adverse claim was based on its alleged ownership of the Erin Fraction lode claim, which it is alleged covered almost the identical ground included in the Murphy Fraction claim. The contention of the mining company is that the Murphy Fraction claim was not a valid location, for the reason that the ground included within its boundaries was at the time of its location included in other mining location, to wit, the Snowdrift, the Buffalo and Parret Fractions.

The issues as made by the pleadings were tried by the court without a jury, and findings of fact and judgment were made and entered in favor of the respondent. Thereafter a motion for a new trial was denied, and this appeal is from the judgment and order denying the new trial.

The following, among other facts, appear from the record: On April 8, 1887, Francis Murphy, the respondent (whose name appears in the record sometimes as Francis and sometimes as Frank Murphy) and Andrew Short located the Snowdrift lode mining claim and in the location notice described said claim as "Commencing from discovery, running N.W. 700 feet running S.E. 800 feet from discovery, bounded on N.W. by Black Bear and Cape Horn Lodes." In July, of 1899, one William P. Flynn, who owned two claims known as the Buffalo Fraction and Parret Fraction, situated in an easterly direction from the Snowdrift, had the same surveyed for a U.S. patent. It appears that the westerly end lines of those two claims were drawn in by the surveyor in an easterly direction, leaving some vacant ground between the Snowdrift on the easterly end and the Buffalo and Parret Fractions on the westerly ends; that Flynn had a number of mining claims on Flynn Mountain where said named claims were located, and informed a man by the name of Faulkner of the vacant ground and advised him...

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