Golden Terra Mining Co. v. Smith

• Citation: 11 N.W. 98,2 Dakota 377
• Parties: Golden Terra Mining Co. v. Smith, Guardian ad litem, and others.
• Decision Date: 27 December 1881
• Court: North Dakota Supreme Court

11 N.W. 98

2 Dakota 377

Golden Terra Mining Co. v. Smith, Guardian ad litem, and others.

Supreme Court of Territory of Dakota

December 27, 1881

Appeal from Lawrence county.

Corson & Thomas, for appellant. McLaughlin & Steele, for respondents.

MOODY J.

This action was brought by the plaintiff in the district court of Lawrence county to determine the rights of the parties claiming adversely about 200 feet by 150 feet of mining ground situated in Whitewood quartzmining district, in said county. The plaintiff claims ownership of the ground in controversy by virtue of what is known as the Ophir mining claim, and the defendants claim such ownership by virtue of their Golden Terra Extension mining claim; these two mining claims overlapping and conflicting with each other to that extent. This ground is alleged to be very valuable for the gold-bearing ores therein, and has given rise to much and costly litigation. The plaintiff brings the action in the nature of an action to quiet the title, and for an injunction, alleging, also, in its complaint, that the defendants have unlawfully entered into the disputed ground by means of a tunnel commenced within the plaintiff's Ophir mining claim, and without plaintiff's consent have extracted and carried away large quantities of valuable gold-bearing ores therefrom, and are continuing to extract and take away such ores, to plaintiff's great damage. The plaintiff derives title to the ground by transfers coming down to it from the locators of the Ophir,--H. C. Harney and others,--who, the complaint alleges, made a location of such mining claim on the seventh day of June, 1876; the complaint further alleging that the plaintiff and its grantors have, ever since said location been in the lawful possession of said Ophir claim.

The defendants, in substance, deny the validity of the Ophir locations, so far as it affects the ground in controversy alleging several reasons for the invalidity, among which are that it was located while that portion of the territory within which it is situated was a part of the great Sioux Indian reservation, as such reservation was defined and set apart for the exclusive use of the Sioux nation of Indians by the treaty with the several bands of that nation, and that it was predicated upon a discovery made wholly within the boundaries of another valid and subsisting prior mining location, no part of which has ever been abandoned. The defendants also deny that the plaintiff or its grantors have ever been in the possession of any portion of the disputed property until shortly before the commencement of the action, when the plaintiff's employes run a tunnel from its Golden Terra claim into the ore body found in this ground, and underneath the defendants' workings. They further allege facts constituting an equitable estoppel against the plaintiff claiming this disputed property, and that they have been in the quiet and undisputed possession of the same, expending large sums in the development thereof, ever since the twenty-eighth day of February, 1877, when the Indian title thereto became extinguished, until the plaintiff's interference by means of the tunnel before spoken of.

Other facts are alleged in the pleadings, not necessary here to recite.

The trial was to the court, a jury being waived as to such issues as were properly triable to a jury, and a decision and judgment were rendered and entered for defendants, and plaintiff appeals. A motion was made by plaintiff in the district court for a new trial and overruled, and upon this action of the court arises the first and most important alleged error. The most important, because if the action of the court in denying a new trial was right, then, as will hereafter be made to appear, the record contains nothing which will entitle the plaintiff to a reversal of the judgment.

In order to a proper understanding of the points involved in those grounds for such motion, most strenuously urged here, it is necessary to recite somewhat the history of the trial of the action, and the facts bearing upon the motion, in their chronological order.

The trial commenced on the seventh day of July, 1879; was concluded and finally submitted, together with each party's proposed findings of fact, to the court on the second day of August, 1879. On September 26th following occurred the fire in Deadwood, hereinafter spoken of, at which, it is alleged, were destroyed the stenographers' notes taken at the trial, and the transcript therefrom held by counsel. On the sixth of December the judge signed and filed his decision, containing the findings of fact and conclusions of law. On December 30th plaintiff's attorneys filed the motion for a new trial, which was heard January 29, 1880, taken under advisement and decided February 2, 1880. By stipulation of the parties the court extended the time for preparing and settling the bill of exceptions or case from time to time, until March 1, 1881, and on February 28, 1881, the bill of exceptions, as it appears in the record, was finally settled and signed, there having elapsed one year and five months from the time of the Deadwood fire until the record was fully completed. These facts will be seen to be important, when we come to consider the reasons urged for a new trial of the action.

The motion for a new trial is made upon the minutes of the court, and accompanying affidavit in support of the first and second grounds or reasons set forth, and alleges the following reasons for the motion:

"First. Irregularity in the proceedings of the court; because the court rendered its decision after the destruction by fire, without the fault of plaintiff, of the records, all the depositions, exhibits, and all the oral evidence taken in said cause. Second. Accident which ordinary prudence could not have guarded against. (1) That after the conclusion of the evidence, argument of counsel, and the submission of said cause to the court, and before said decision was rendered, the records, all the depositions, exhibits in said action, and all the oral evidence taken on the trial of said action, were destroyed by fire without the fault of plaintiff, to-wit, by fire that destroyed the principal part of Deadwood on September 26, 1879, as will more fully appear by the annexed affidavits. (2) That by the destruction of said records and evidence the plaintiff is deprived of a review of the findings of fact and conclusions of law by this court, and by the appellate court, to the great and irreparable injury of said plaintiff."

Then follow other reasons, to-wit: Insufficiency of the evidence to sustain certain of the findings of fact; that the decision of the court is against law; that certain conclusions of law are against law; error in law occurring at the trial, specifying such error; and that the court erred in law in not finding certain facts requested by plaintiff. Accompanying the motion are affidavits alleging the destruction by the fire of September 26, 1879, of the pleadings, of the notes of the testimony taken by the stenographers, of the transcript therefrom in counsel's possession, of a number of exhibits, and a number of important depositions. The attorneys for the defendants presented and filed a counter affidavit, stating, in substance, that copies of the pleadings had been preserved and substituted for the originals; that a large amount of the testimony on the material points in the case, which had been briefed from the transcript of the stenographers, had also been preserved and was then with the clerk, and that it was entirely practicable to make a complete and accurate case, or bill of exceptions, with the aids at hand. Upon this motion the judge rendered a decision in writing, which, as it found upon the disputed facts involved in the motion, was incorporated into the bill of exceptions and brought to this court, in which, after reciting the grounds of the motion, the judge says upon the subject of the alleged destruction of the papers:

"The argument upon this motion has been confined to the causes stated in the first and second grounds above given. Those causes I propose briefly to review.

First. As to the alleged irregularities in the proceedings of the court in rendering a decision after the occurrence of a fire at which the stenographers' notes, the transcripts therefrom furnished the counsel for the respective parties and the original pleadings were destroyed, the facts are these: I had a copy of the pleadings furnished by the plaintiff in pursuance of the statutes, a large part of the testimony compiled from the stenographers' transcript relating to all those subjects I deemed as material to the just determination of the case, my own memoranda, and the findings prepared and submitted by each party. These were preserved, and, as stated in defendant's affidavit opposing this motion, the copies of the pleadings have been since substituted for and made originals, and the testimony and findings, together with the plats and exhibits thereto attached, have been placed with and are now with the clerk of this court; the record proper, to-wit, the pleadings, minutes of the trial, and decision, being now complete.

Again, the fire occurred on the morning of the twenty-sixth of September. My decision was not filed until December 6th. In the mean time, save about three weeks, during which I was absent attending the supreme court at Yankton, the court was constantly daily open for the transaction of business, notwithstanding which no motion was made relative to the subject, and no suggestion ever reached me of the propriety of postponing the decision until the evidence could be retaken or substituted. Certainly, the amplest opportunity was afforded, and if such a course had been deemed advisable by plaintif

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