Hedrick v. Lee

• Decision Date: 03 May 1924
• Citation: 227 P. 27,39 Idaho 42
• Parties: J. G. HEDRICK and J. F. MACCLURE, Respondents, v. FRANK LEE, Appellant
• Court: Idaho Supreme Court

227 P. 27

39 Idaho 42

J. G. HEDRICK and J. F. MACCLURE, Respondents, v. FRANK LEE, Appellant

Supreme Court of Idaho

May 3, 1924

MINING CLAIM-CONFLICTING LOCATIONS-DISCOVERY-DISCOVERY WORK-JUDGMENT-DESCRIPTION OF PREMISES.

1. Held, there is sufficient competent evidence to support the finding of a valid discovery within the meaning of U.S. R S., sec. 2320.

2. Failure to substantially comply with the provisions of C. S sec. 5522, in regard to discovery work invalidates the location of a mining claim.

3. A judgment involving the right to possession of real property must sufficiently describe it to enable an officer charged with the duty of executing a writ of possession to go upon the ground, and, without exercising judicial functions ascertain the locality of the lines as fixed by the judgment.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. H. F. Ensign, Judge.

Action to determine conflicting rights in unpatented mining claims. Judgment for plaintiffs. Reversed and remanded for further proceedings.

Reversed and remanded. No costs awarded on this appeal. Petition for rehearing denied.

Leo. M. Bresnahan and Frank T. Wyman, for Appellant.

In a suit to quiet title, the complaint does not state facts sufficient to constitute a cause of action and the decree is void where the property involved is not described so as to identify it. (32 Cyc. 1355, 1378; 16 Ency. Pl. & Pr., 369; Hill v. Burner, 8 Cal.App. 58, 96 P. 111; Wilhelm v. Baumann (Tex. Civ.), 133 S.W. 293; Craig v. Mings (Tex.), 144 S.W. 316; Jones v. Mount, 30 Ind.App. 59, 63 N.E. 798; Carr v. Huntington L. & H. Co., 33 Ind.App. 1, 70 N.E. 552; Porter v. Counts, 6 Cal.App. 550, 92 P. 655; Bricken v. Cross, 140 Mo. 166, 41 S.W. 735; Ratliff v. Stretch, 117 Ind. 526, 20 N.E. 438.)

A discovery of mineral within the boundaries of the proposed claim is essential to a valid location. (Sec. 2320, U. S. R. S.; Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659; Chrisman v. Miller, 197 U.S. 330, 25 S.Ct. 468, 49 L.Ed. 770; Creede & C. C. M. Co. v. Uinta T. M. & T. Co., 196 U.S. 337, 25 S.Ct. 266, 49 L.Ed. 501; Garabaldi v. Grillo, 17 Cal.App. 540, 120 P. 425; King v. Amy & Silversmith M. Co., 152 U.S. 222, 14 S.Ct. 510, 38 L.Ed. 419; Tuolumne Cons. M. Co. v. Maier (Cal.), 66 P. 863; Hall v. McKinnon, 193 F. 572, 113 C. C. A. 440; Lindley on Mines, 3d ed., sec. 335, p. 763 and notes.)

Before the location is complete or becomes valid, a discovery shaft or its equivalent must be sunk cutting the vein at a depth of at least ten feet. (Helena G. & I. Co. v. Baggeley, 34 Mont. 464, 87 P. 455; Butte C. M. Co. v. Barker, 35 Mont. 327, 89 P. 302, 90 P. 177; sec. 5522, C. S.; Lindley on Mines, 3d ed., sec. 346; Beals v. Cone, 27 Colo. 473, 83 Am. St. 92, 62 P. 948; Fleming v. Daly, 12 Colo. App. 439, 55 P. 946.)

The boundaries of the claims of the plaintiffs are clearly impossible and in fatal conflict as shown by the location stakes and notices posted upon the claims. (Dillon v. Bayliss, 11 Mont. 171, 27 P. 726; Morehead v. Erie M. & M. Co., 43 Colo. 408, 96 P. 253.)

J. G. Hedrick, for Respondents.

The question raised by counsel that the decree is fatally defective for lack of definite description of the property claimed by the plaintiffs was never raised in the lower court and should be considered as having been waived, as the defendant never filed a special but a general demurrer, and, in the absence of the former, the description of the claims should be deemed sufficient to acquaint the defendant as to the location of the property in question. (Murray v. Nixon, 10 Idaho 616, 79 P. 643; Hollister v. State, 9 Idaho 651, 77 P. 339.)

And, where mining claims are described simply by name and in the manner set forth in the complaint in this action, even in the face of a special demurrer, this court has held that such description is sufficient. (Independence P. Min. Co. v. Knauss, 32 Idaho 269, 181 P. 701.)

Where one has actual notice that ground has been located and also constructive notice from an examination of the records, or by finding notice or evidence on the ground of the location, he will not be permitted to take advantage of any technical defect in the location notice, where it appears that the locations were made in good faith. (Flynn Group of Mining Claims v. Murphy, 18 Idaho 277, 109 P. 851.)

If a second locator has actual notice of a claim, the want of a location notice or stake is immaterial, and a mere defect in some of the technical requirements of the statute would not defeat the prior location. (Morrison, Mining Rights, p. 38; Yosemite G. M. Co. v. Emerson, 208 U.S. 25, 28 S.Ct. 196, 52 L.Ed. 375.)

MCCARTHY, C. J. Budge and William A. Lee, JJ., concur.

OPINION

MCCARTHY, C. J.

The complaint in this case alleges that respondents "are the owners of, in possession of, and entitled to the possession of the following described mining claims in the Mineral Hill Mining District, Blaine County, Idaho, to-wit: Grey Eagle No. 1; Grey Eagle No. 2; Grey Eagle No. 3; Grey Eagle No. 4; that all of the said claims have been duly recorded in the office of the recorder of Blaine County, Idaho, reference to the records of which is hereby made for a more particular description of the claims"; that appellant claims to have an interest in said mining claims adverse to respondents under and by virtue of a pretended location which embraces a portion of the ground embraced in respondents' claims; that the claim of appellants is without right. Respondents pray for judgment quieting title in them except as to the paramount title of the United States. In his answer appellant denies that respondents are entitled to the possession of the mining claims in question, and affirmatively alleges that respondents failed to comply with the statutes in regard to the location of mining claims and discovery work. Appellant also filed a cross-complaint alleging that he is the owner of, "in possession of, and entitled to the possession of the following described unpatented mining claims, situated in Blaine County, State of Idaho, to-wit: Barium Sulphate No. 1, Barium Sulphate No. 3, and Barium Sulphate No. 4 Lode mining claims, situated in Mineral Hill Mining District, and now of record in the office of the County Recorder of Blaine County, Idaho"; that respondent's pretended mining claims conflict with a part of the ground within the boundaries of appellant's claims and respondents claim to have some adverse interest therein; that said claim is without right. Appellant prays that respondents take nothing by their complaint, and that his title be decreed good and valid except as to the paramount title of the United States. In their answer to the cross-complaint respondents deny its allegations and affirmatively allege failure on appellant's part to comply with the requirements of the statutes in regard to the location of mining claims. The court found that respondents had made a valid location of the mining claims in question and entered a decree quieting title in them except as to the paramount title of the United States. From this decree the appeal is taken.

The principal specifications of error, and the only ones which we think it necessary to expressly mention, are: that the evidence is insufficient to justify the findings and decree of the court that respondents made a valid location of the mining claims; the court erred in not finding that appellant's location was valid; the court erred in not finding the definite location of respondent's alleged mining claims, and in not finding for appellant for so much of his claim, Barium Sulphate No. 3, as is not included within respondents' claims.

The uncontradicted evidence shows that the ground in dispute contains a deposit of barium, a nonmetallic mineral, which is used in making paint. Both sides assume and concede that the presence of this mineral made the ground subject to location, and as a lode claim rather than as a placer. For the purposes of this case we will indulge the same assumption.

While the pleadings are in the form of a complaint and cross-complaint to quiet title, and the action is referred to as such in many parts of the record, it is, of course, evident that it is not and cannot be an action to quiet title in the truest and fullest sense of the term. Both parties concede that their rights are subject to the paramount title of the United States. The rights of conflicting locators to an unpatented mining claim can in the very nature of things be the subject of only a possessory action, and not of an action to quiet title in the true sense of the term.

We do not understand that this court intended to hold otherwise in Poncia v. Eagle, 28 Idaho 60, 152 P. 208.

Sec. 2320 of the Revised Statutes of the United States provides that:

"No location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located."

See, also, Chrisman v. Miller, 197 U.S. 313, 25 S.Ct. 468, 49 L.Ed. 770. Appellant contends there is no evidence to show a discovery by respondents of the vein or lode within the limits of the claims. Respondents attempted to locate a deposit of barium. If, as conceded by both parties, this deposit is the subject of a lode location, it must be on the theory that the deposit takes the place of a lode. It cannot be said that the record is barren of evidence that a deposit of this mineral was discovered by respondents within the limits of their claims. On the contrary, there is some competent evidence of such a discovery, and this, under the established rule, is all that is required to support the findings and judgment in that regard.

C. S., sec. 5522, provides as follows:

"Within 60 days after such...