Garfield M. & M. Co. v. Hammer
| Decision Date | 15 August 1885 |
| Parties | GARFIELD M. & M. CO. v. HAMMER and others. |
| Court | Montana Supreme Court |
Appeal from Third district, Lewis and Clarke county.
E. W. & J. K. Toole, for appellants, A. O. Hammer and others.
Sanders & Cullen, for respondent, Garfield M. & M. Co.
This is an appeal from an order overruling a motion for a new trial. The action was to quiet title. A trial by a jury was had between the respondent and the appellant Hammer. The pleadings, so far as they were concerned, were in substance as follows: The complaint alleged that the respondent is a body politic and corporate, organized under the laws of the state of New York for the purpose of mining and milling ores containing the precious metals, in Montana territory, and that it has complied with the laws of that territory in relation to foreign corporations; that it is the owner of a certain quartz-lode mining claim situate in Vaughn (unorganized) mining district, in the county of Lewis and Clarke, and territory of Montana, called the "Garfield Lode or Mining Claim;" that the respondent is now in the possession of the above claim, and that plaintiff and its predecessors in interest, have been, ever since the discovery and location of said claim, in the possession of the same, and entitled to be so in possession thereof; that the appellant Hammer, on or about the first day of January 1883, assumed to enter upon said premises and to relocate the same, and had the relocation recorded in the county of Lewis and Clarke as the "Kinna Lode," and thereby now claims an interest therein, and the possession thereof adversely to the respondent, and has made application for a patent to the premises under the name of the "Kinna Lode;" that the claim of the appellant is without any right whatever; that the respondent has filed its adverse claim in the land-office, whereby proceedings will be stayed till the final determination of the right to the premises.
The answer denies that the respondent "ever was or is a body politic and corporate, or that it has duly complied with the laws of Montana territory relative to foreign corporations; denies that the respondent is the owner of the premises, or that it is now, or ever was, in the possession thereof; or that it or its predecessors in interest have been, ever since the discovery or location thereof, in possession of the same, or are or were entitled to such possession, or that he assumed to relocate the said premises, or caused any location thereof to be recorded as the 'Kinna Lode,' or that his claim is without right, or that he has not any estate, title, interest, or right to the possession of said premises."
The appellant then founds his claim to the premises by virtue of a certain location made on the first day of January, 1883, by the name of the "Kinna Lode," the premises being then vacant mineral lands of the United States,--such location having been made in full compliance with the laws of congress and Montana territory by one Wolfe; that on the ___ day of January, 1883, the appellant purchased the premises from Wolf, and ever since the first day of January, 1883, the appellant and his predecessor in interest have been the owners of, held possession, and duly represented, said Kinna Lode, and ever since said time this defendant has been and now is entitled to the possession of the same; that whatever claim the respondent ever had (if any) to said premises was forfeited prior to first January, 1883.
The reply denied all the affirmative allegations set forth in the answer. Upon the trial the court instructed the jury as follows:
"If you believe, from the evidence in the case that prior to the thirty-first day of December, A. D. 1882, the plaintiff was in the quiet and undisputed possession of the premises designated in the complaint as the 'Garfield Lode,'--the validity of the original location of which is not questioned in the pleadings or testimony,--claimed by the defendant as the Kinna Lode; that the boundaries of said claim were so marked upon the surface as to be readily traced; and that theretofore there had been discovered within said boundaries a vein or lode of quartz or other rock, in place, bearing gold, silver, or other precious metals,--then this constitutes a prima facie case for the plaintiff, which can only be overcome by the defendant by proof of subsequent abandonment or forfeiture, or other divestiture, and the acquisition of a better right or title by the defendant."
The above statement of the pleadings shows that the respondent claimed its right to a decree that the title and right to the possession of the premises be adjudged to be in it, upon the allegations of ownership, possession, and right of possession thereto, and that these allegations are denied by the answer.
The allegation of forfeiture in the answer is consistent with these denials. The respondent does not claim the premises by virtue of a patent from the United States, but by virtue of a location made by its predecessors in interest. Now, although the courts of this territory, in determining the title to mining claims where there is a dispute in relation thereto in the land-office, have adopted the forms of action by which title to land is tried, which may be either by the action of ejectment or to quiet title, yet the real question to be determined is, who is entitled to the patent from the United States government to the mining claim in controversy? Or, in other words, who has become the purchaser of the mining claim, and divested the title of the government thereto by complying with the requirements of the laws of congress relative to acquiring title to mineral lands? The right to the possession of a mining claim comes only from a valid location. Consequently, if there is no location there can be no possession under it. Location does not necessarily follow from possession, but possession from location. A location is not made by taking possession alone, but by marking on the ground, recording, and doing whatever else is required for that purpose by the acts of congress and the local laws and regulations. Belk v. Meagher, 104 U.S. 279. Therefore, when the respondent's claim of ownership and right to the possession were put in issue by the answer, it devolved upon the respondent to show affirmatively upon the trial that it had complied fully with all the requirements of the act of congress, and the local rules and regulations, relative to the location of mining claims; that is, that it had made a valid location.
The above instruction, and others of the same tenor, took away from the jury the question of the validity of the original location made by the predecessors in interest of the respondent, and so far as the pleadings were concerned were clearly erroneous. The answer did properly put in issue the validity of the respondent's location. Were these instructions prejudicial to the appellant? The record shows that the appellant did not introduce any evidence whatever tending to invalidate the respondent's location. The only evidence introduced by the appellant affecting the respondent's title was simply relative to the question of forfeiture. The uncontradicted evidence introduced by the respondent upon the trial relative to the location was as follows:
"That the boundaries of said claim were clearly marked upon the surface by stakes set at the corners thereof and elsewhere on said boundaries, and that said boundaries could be readily traced; that there was discovered thereon a lode of quartz rock, in place, bearing gold and silver; such vein having at least one well-defined wall."
As to the question of citizenship, the oath attached to the certified copy of the location notice of the Garfield lode by one of the locators states that he and his co-locators are citizens of the United States over the age of 21 years. There is nothing in the record indicating...
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