Hayes v. Lavagnino

• Decision Date: 26 July 1898
• Docket Number: 883
• Citation: 17 Utah 185,53 P. 1029
• Court: Utah Supreme Court
• Parties: S. HAYES AND P. PHELAN, APPELLANTS, v. GIOVANNI LAVAGNINO, RESPONDENT

53 P. 1029

17 Utah 185

S. HAYES AND P. PHELAN, APPELLANTS, v. GIOVANNI LAVAGNINO, RESPONDENT

No. 883

Supreme Court of Utah

July 26, 1898

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by S. Hayes and another against Giovanni Lavagnino. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

Frank Hoffman, for appellants.

S. H Lewis, for respondent.

BARTCH J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This is an action to determine the adverse claims of the parties to the right of possession of certain mining ground situate in West Mountain mining district, Salt Lake county, state of Utah. It is alleged in the complaint, in substance, that prior to January 1, 1893, the plaintiffs were, ever since have been, and now are, the owners (subject to the paramount title of the United States) in possession, and entitled to the possession, of the Gladstone mining claim, containing a lode of rock in place, bearing silver and other precious metals, situate in West Mountain mining district (the claim being particularly described in the complaint by metes and bounds); that the defendant, who claims to be the owner of the Montreal No. 1 mining claim, about November 10, 1895, wrongfully caused the same to be so surveyed as to overlap the Gladstone, and include a portion thereof (the portion included being also described by metes and bounds); that about July 3, 1896, the defendant made application for a patent for the Montreal No. 1 mining claim, as so surveyed, in the United States land office at Salt Lake City, and caused the register to give notice of the application as required by law; that in the application for patent the defendant wrongfully alleged that he was the owner and in possession of the whole of the Montreal No. 1 claim, including that portion of the Gladstone claim so wrongfully surveyed and overlapped; that the plaintiff within the proper time filed a protest and adverse claim in the land office for that portion of the Gladstone included in the Montreal No. 1 claim; that thereupon the proceedings on the application in the land office were stayed to await the determination by a court of competent jurisdiction of the right of possession of the disputed ground; and that, to determine the rights of the respective parties thereto, this suit was brought. After denying the allegations of the complaint in his answer, the defendant alleges ownership and right of possession to the disputed ground in himself, and avers that he located the Montreal No. 1 mining claim, according to law, about June 1, 1896, and fully performed the assessment work, and that the area in conflict is a part of the Montreal No. 1 claim. At the trial the court rendered judgment in favor of the defendant, and thereupon the plaintiffs appealed.

Counsel for the appellants insists that the court erred in rendering judgment in favor of the defendant, for the reason, among others, that under the additional facts found by the court the plaintiffs were entitled to judgment for the ground in controversy. The findings of fact, conclusions of law, and decree were filed May 13, 1897. The "additional findings of fact" were allowed and filed on June 21, 1897; and counsel for the respondent maintains that the court had no authority to make and file them after the findings of fact had been filed, and the decree entered. The additional findings, however, are responsive to issues presented in the pleadings, and were made and filed while a motion for a new trial was pending and before final action on that motion. They appear to be supported by the evidence, and are fair deductions therefrom. Under these circumstances, we are of the opinion that the court was authorized and justified in amending the findings of fact by making the additional findings. Did, then, these findings entitle the appellants to judgment for the ground in controversy? An affirmative answer to this question does not necessarily follow from the character of the findings, which read: "That on the day of January, 1882, said P. Phelan, who was then and there a citizen of the United States, posted a notice of location on a point on the Gladstone mining claim, marked, on the map used herein, 'Discovery,' and caused the same to be duly recorded in the mining recorder's office of the West Mountain mining district, Salt Lake county, Utah territory; that said location notice contained a sufficient description of the ground attempted to be located, with reference to natural objects and permanent monuments, as to sufficiently describe the same; that the description contained in said location notice is the same as that contained in plaintiff's complaint, and in plaintiff's protest on file in the United States land office. Second. That during each and every year after the posting and recording of said location notice, the plaintiffs in this action did and performed more than $ 100 worth of work and improvements on the ground described in said location notice. Third. I find that there was sufficient marking of the claim on the ground, by posts and monuments as to identify the same." These findings show that on January 1, 1882, a notice of location was posted on the Gladstone claim at a point designated as "Discovery"; that the notice was duly recorded, and contained a sufficient description of the claim, respecting natural objects and permanent monuments; that such description is the same as that contained in the complaint herein, and protest filed in the land office; that during each year since 1882 more than $ 100 worth of work was performed in improvements on the claim; and that the claim was sufficiently marked on the ground by posts and monuments, to identify it. They do not show, however, as will be observed, that the location was made upon a vein or lode of quartz or other rock in place, bearing gold, silver, or other valuable deposit of mineral, in accordance with the laws of the United States; and therefore these findings, of themselves, do not entitle the appellants to judgment. It is incumbent upon them to show, in addition to what was so found, the existence of mineral at the point of their discovery, or in its immediate vicinity; that is, that the location was made upon a vein or lode of quartz or other rock in place, bearing mineral, with the discovery or knowledge on the part of the locators, before the location was made, of the existence of mineral there. On the question of such discovery and knowledge respecting the existence of mineral, the court found as follows: "That the plaintiffs, or either of them, or their grantors, never at any time located the alleged Gladstone mining claim, for that they did not discover, nor had any one before the alleged location of this claim discovered, any vein or lode or rock in place, bearing minerals, within the limits of the claim located,"--and, in deciding the case, held that the evidence did not show an actual location of the premises by plaintiffs or their grantors or predecessors in interest. To determine whether the court erred in this finding and decision, as is maintained by the appellants, it becomes necessary to refer to the evidence respecting the nature of the material on which the location was made, and the discovery or knowledge on the part of the locators of the existence of metal at, or in the immediate locality of, the location.

It appears the ground constituting the Gladstone claim was first located in 1878, and work done in sinking the discovery shaft. Thereafter it was several times relocated, under different names, until in January, 1882, when it was located as the Gladstone claim. The parcel of ground thus located extends in a northeasterly and southwesterly direction; being bounded on the northeast by the Revere claim, and on the southwest by the Montreal. Referring to the history of the claim, counsel for the respondent, in his brief, said "This fraction of ground now called the 'Gladstone' was first located in 1878. The shaft now used by the appellants for a discovery was then used as a discovery shaft by the then locators." It is thus conceded that the discovery shaft was sunk before 1882, and therefore whatever mineral strata or vein may be shown to exist there must have been discovered before the location of the Gladstone; and it is but just and reasonable, under the circumstances of this case, to infer that, if a mineralized vein or lode was discovered by the sinking of that shaft, its existence was known to the locators of the Gladstone before the location was made. If a vein or lode actually exists at the point of their discovery, then such discovery would seem to be a substantial compliance with the provisions of section 2320, Rev. St. U.S. which reads, "No location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim located." This clause of the statute does not require that the locator of the claim must be the original discoverer of the vein or lode. If, then, in this case there was a discovery of a vein, and knowledge on the part of the locators of metal there, the locators were entitled to make their location, even though the original discovery was made by some one other than the locators. Jupiter Min. Co. v. Bodie Consol. Min. Co., 7 Sawy. 96, 11 F. 666, Erhardt v.Boaro, 113 U.S. 527, 28 L.Ed. 1113, 5 S.Ct. 560. Does, then, the evidence show the existence of a vein or lode, within the meaning of the statute? On this point the witness Gibbons, who has known that ground since 1880, testified: "I know what was shown me as the discovery of the Gladstone. I examined it with a view of determining whether or not there is a cropping of the vein there. There are indications of a vein there. There is a shaft down there, and...