King v. Edwards

• Decision Date: 31 August 1870
• Parties: KING et al., appellants, v. EDWARDS et al., respondents.
• Court: Montana Supreme Court

1 Mont. 235

KING et al., appellants,

v.EDWARDS et al., respondents.

Supreme Court of the Territory of Montana.

August Term, 1870.

Appeal from the Third District, Meagher County.

IN May, 1869, King and Gillett filed their complaint against Edwards and ten others, including John Doe and Richard Roe, in the district court in Meagher county. The cause was tried by a jury in November, 1869, before SYMES, J., and a verdict was returned for defendants. The facts are stated in the opinion.

WOOLFOLK & TOOLE, for appellants.

There was no evidence that appellants had abandoned the ground in controversy. The laws of German district, even if in force, make no provision for a forfeiture, but were designed to make representation easy instead of difficult. McGarity v. Byington, 12 Cal. 426;Colman v. Clements, 23 Id. 248;Bell v. Bed Rock T. & M. Co., 36 Id. 217.

No witness swore that the laws were in force. The record shows that there had been a dispute for three years past, as to what laws were in force. Acts Montana, 1865, 169, § 634.

The questions of abandonment and forfeiture, under the laws of German district, were the only issues raised by the pleadings. The record shows that appellants introduced evidence, that a custom had grown up in German district, permitting representation of ground by work outside of the district, as in cases of flumes or drain ditches. The respondents sought to prove that there had been no such custom, as there had been no such case before in the district. Not one of respondents' witnesses asserted that there was any custom in the district, making a forfeiture, when ground was represented in the manner that appellants represented their ground. Not one of respondents' witnesses testified to any fact creating a custom, but simply gave their own opinion as to what was or was not the custom. Such evidence could not establish a custom or disprove one. 2 Greenl. Ev., §§ 250, 252; 1 Black. Com. 76, 77.

The court erred in admitting the resolutions offered as the laws of German district. English v. Johnson, 17 Cal. 107.

The court erred in refusing to allow certain questions to be put to the witnesses, Kane and Woods. It was competent to ask them, on cross-examination, if there was any custom in German district which would prevent representation by bed-rock flume in the district below. 1 Greenl. Ev., § 446, et seq.; 3 Estee's Pl. 450, § 49; Jackson v. Feather River Water Co., 14 Cal. 23. If there was no custom which prevented such mode of representation and subjected the ground to forfeiture, it could not be forfeited. The questions were asked to show that there was no such custom.

The court erred in refusing to permit appellants to show in rebuttal the boundaries of German district at the time of the adoption of the laws. Appellants' witnesses never defined these boundaries. It was clearly competent to show that, at the time of the adoption of these laws, German district embraced appellants' bed-rock flume, and that respondents were seeking to apply old laws or customs to a new district with smaller dimensions than the one first created.

CHUMASERO & CHADWICK, for respondents.

This action is to recover the possession of a mining claim, and is governed by the law applicable to actions of ejectment. The appellants must recover upon the strength of their own title. The respondents set up as special defenses, abandonment and forfeiture.

The question of abandonment was one entirely for the jury, and, as there was evidence tending to prove the same, the court cannot disturb the verdict. Depuy v. Williams, 26 Cal. 309;Roberts v. Unger, 30 Id. 676.

The defense of forfeiture of appellants' right to the premises in dispute was clearly established. The evidence showed that they were in the German district; that the miners of that district had adopted certain rules long before appellants claimed this ground; that these rules required a certain amount of work to be done in the district to hold mining ground, and that appellants had failed to perform it. Whether the laws were in force, or whether the appellants had complied with these laws, or whether the ground had been forfeited under the laws as shown by the evidence and the law as given by the court, were questions entirely for the jury to pass upon, and their verdict cannot be disturbed by this court. Packer v. Heaton, 9 Cal. 568;St. John v. Kidd, 26 Id. 263;Depuy v. Williams, 26 Id. 309;Morton v. Solambo C. M. Co., Id. 532.

No exceptions to the instructions of the court were taken by either party. The appellants only claimed a possessory right to the ground in dispute, having no title from the government. That right could only be preserved by a compliance with the local mining laws, and, in case of noncompliance therewith, a forfeiture would arise. Warring v. Crow, 11 Cal. 366;Gluckauf v. Reed, 22 Id. 468;St. John v. Kidd, 26 Id. 263.

If there were no local rules in the district, the ground could only be held by an actual and continuous possession.

Appellants fail to make out any case for a new trial upon the ground of newly-discovered evidence. They show no diligence, and the newly-discovered evidence is cumulative. Gra. & W. New Trials, 473-485.

All questions as to customs or usages in force in the district were properly left to the jury. They were questions of fact for them to determine, and their verdict cannot be set aside, if it was supported by the evidence.

KNOWLES, J.

This is an action of ejectment brought by the appellants to recover possession from the respondents of certain mining ground, situated in German district, Confederate gulch, Meagher county.

The appellants claim title from those who first located the same. The respondents claim that appellants forfeited the ground and set up title in themselves.

The law which requires work to be done on mining ground in German district does not provide that a failure to comply therewith shall work a forfeiture of the ground.

The first question presented for us to answer is, whether it is necessary for this law to so provide in order to have this effect.

The mining customs of any particular mining district have the force and effect of laws, or, in other words, are laws. The local courts in each one of the States and Territories, where placer mining is prosecuted to any extent, have so recognized them, and finally, congress, by an act in July, 1866, recognized these rules and customs as law.

The title to mineral lands is vested in the United States. Any citizen of the United States, or any person who has declared his intention to become such, may, by complying with the local rules and customs of any district, become vested with the right to possess and mine any specific portion of mining ground. The customs which point out the manner of locating mining ground are conditions precedent. A substantial compliance with them is necessary. The right to possess and mine any mining claim is derived from the United States by virtue of this compliance. The United States is divested of this right as effectually as if these rules and customs were acts of congress, for they now are the American common law on mining for precious metals.

The regulations of miners which require that so much work must be performed upon each claim are conditions subsequent. The locator of a mining claim takes subject to this condition. So long as he complies with it, the right to possess and mine the same remains with him. Whenever a condition subsequent is attached to any right or title vested in a party by virtue of law, it is not necessary that the law should provide that a failure to comply therewith works a forfeiture of the right. Even when a condition subsequent is expressed in a deed, it is not necessary that it be specified that a failure to comply with it entitles the grantor to enter and take possession of the tenements. It is implied that he has this right. 4 Kent's Com. 140.

It is true that, where a mine is forfeited, it becomes forfeited to the United States, of whom the locator derived title. Formerly only the grantor, or his heirs, could pro ceed for forfeiture; but under the law, as it now stands, an assignee of the rights of the grantor can proceed to declare a forfeiture. 4 Kent's Com. 138, 139.

When mining ground is forfeited by any one, it again becomes unappropriated mineral land of the United States. Any one who relocates it, in accordance with the mining rules and customs of the district in which the same is situated, has the rights of the government, and may proceed to declare a forfeiture, or may set up the defense of forfeiture in an action against him.

From the statement in this case, it would seem that it is conceded that both parties claim by virtue of the local rules and customs of the district where the ground is situated. At all events, as far as the statement goes, they both stand upon the same footing. It is doubtful whether any person could acquire and possess a mining claim, without complying with the...