Hauswirth v. Butcher

• Decision Date: 14 January 1882
• Citation: 4 Mont. 299
• Parties: JOHN HAUSWIRTH and others v. ROLLA BUTCHER and others.
• Court: Montana Supreme Court

4 Mont. 299

JOHN HAUSWIRTH and others

v.ROLLA BUTCHER and others.

Supreme Court of the Territory of Montana.

Filed January 14, 1882.

The location of a mining claim must conform in all respects to the statute authorizing it, and boundaries beyond the maximum extent of a location are no boundaries at all. Whether a location beyond the limit can be sustained to the extent of the limit, where no rights of third parties attach, quœre.

From Second district, Silver Bow county.

J. C. Robinson, for respondents.

Knowles & Forbes, for appellants.

WADE, C. J.

This appeal, among other things, calls in question the validity of a mining claim location under the act of congress of May 10, 1872. The respondents claim title and right of possession to the ground in dispute by virtue of their location of the Triumph lode mining claim, which location the appellants claim is void for the reason that the testimony discloses the fact that the Triumph location is 2,000 feet in length on its southern boundary line, and therefore not authorized by the act aforesaid. The act of congress provides: “A mining claim located after the passage of this act, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode. *** The location must be distinctly marked upon the ground so that its boundaries can be readily traced. All records of mining claims hereafter shall contain the name or names of the locators, the date of location, and such a description of the claim or claims located, by reference to some natural objects or permanent monument, as will identify the claim.” Such a location on the public mineral lands of the United States carries with it a grant from the government to the person making the same, and confers upon such person the right to the exclusive possession and enjoyment of all the surface ground within the lines of such location. In order to make this grant effectual, the location must be distinctly marked on the ground, so that its boundaries can be readily traced, and the record of the location must contain such a description of the claim as will identify it by reference to some natural objects or permanent monument. Such reference is as necessary as that the record should contain the date of the location and the name of the person making the same. Both requirements are for the purposes of notice. Neither a grant or the right of possession attaches to a location that does not give the notice required. As was said in the case of Belk v. Meagher, 3 Mont. 80, there is no grant from the government under the act of congress unless there is a location according to law. Such a location is a condition precedent to the grant. And in the same case, in the supreme court of the United States, (104 U. S. 284,) it is held “that the right of location upon the mineral lands of the United States is a privilege granted by congress, but can only be exercised within the limits prescribed by the grant. The right to possession comes only from a valid location. Consequently, if there is no location there can be no possession under it. ...