Klopenstine v. Hays

• Decision Date: 16 June 1899
• Citation: 57 P. 712,20 Utah 45
• Court: Utah Supreme Court
• Parties: MICHAEL KLOPENSTINE, RESPONDENT v. S. HAYS, APPELLANT

57 P. 712

20 Utah 45

MICHAEL KLOPENSTINE, RESPONDENT v. S. HAYS, APPELLANT

Supreme Court of Utah

June 16, 1899

Appeal from the Third District Court, Salt Lake County, Hon. Ogden Hiles, Judge.

Action by plaintiff against defendant in support of a protest and adverse claim, asking that his title to certain mining ground be quieted and praying for an injunction. From a judgment and decree for plaintiff defendant appeals.

Affirmed.

Frank Hoffman, Esq., for appellant.

The valid location of a mining claim withdraws the premises from the public domain as much as if the fee is by valid grant from the government of the United States under the authority of law; and any entry thereon while such location is in existence is void. Belk v. Meagher, 104th U.S. p 279.

The right to the possession of a mining claim is derived only from a valid location; consequently if there be no location there can be no possession under it.

Garfield M. & M. Company v. Hammer, 6 Mont. 53, affirmed in 130 U.S. 291.

Right of possession comes only from a valid location. McKinstry v. Clark & Cameron, 4 Mont. 371.

The right to the possession of a mining claim comes only from a valid location; if there is no location, there can be no possession under it. Sweet v. Webber, 7 Colo. 443.

There is a broad distinction between the forfeiture of a mining claim and the abandonment of the same. "Forfeiture is not complete, until some one else enters with intent to re-locate the property." Lindley on Mines, Sec. 643; Little Gunnel Mining Co. v. Kimber, 1st Morrison Mining Reports, 536 to 539; Lakin v. Sierra Buttes Co., 25 F. 337, 343.

Lapse of time, absence from the ground, or failure to work it for any definite period unaccompanied by other circumstances, are not evidence of abandonment. Lindley on Mines, Sec. 644, and authorities there cited; Mallet v. Uncle Sam Mining Co., 1 Nevada. 157; Wade American Mining Law, Sec. 33; Garfield Mining Co. v. Hammer, before cited.

The additional conclusion of law, was in direct accordance to all the evidence. The court had the right to make these findings and should have done so. See Hays v. Lavagnino, 53 P. 1029.

George L. Nye, Esq., for respondent.

Under all the authorities, the failure to mark the claim rendered the location absolutely void. See Anthony v Jillson, 83 Cal. 296; See also, Jupiter Co. v. Bodie Co., 11 F. 666-667; 4 Mining Reports, 412; 78 Cal. 593-596.

If the work is resumed on a claim after it has been open to relocation but before relocation has actually been made, the rights of the original locator stand as if there had been no failure. McGinnis v. Egbert, 8 Colo. 41-50; North Noonday Co. v. Orient Co., 6 Saw. 299; Belk v. Meagher, 104 U.S. 283; Jupiter Mining Co. v. Bodie Mining Co., 7 Saw. 96; 11 F. 666.

The work done upon the ground adjoining to and tending to develop the mine is work done upon the claim within the true meaning of the law requiring annual labor, see: Mt. Diablo Co. v. Callison, 9 Mining Reports, 616; Jupiter Co. v. Bodie, 11 F. 666; Bradley v. Law, 38 Cal. 362; Dennon v. Morrison, 83 Cal. 163.

When the evidence only tends to discredit or impeach an opposing witness it will not avail as a ground for a new trial. Lee v. Birmingham, 18 P. 218 (Kansas); Stoakes v. Monroe, 36 Cal. 383; Martin v. Ehrenfels, 24 Ill. 187; Grady v. The People, 125 Ill. 122; Brown v. Grove, 116 Ind. 84.

Findings of fact by the trial court will not be set aside unless so manifestly against the clear preponderance of the evidence or so erroneous as to demonstrate some oversight or mistake. See Hanneman v. Karrick, 9 Utah 236-239. (Affirmed by the Supreme Court of the United States.) Dooley Block v. Rapid Transit Co., 9 Utah 31; Whitesides v. Green, 13 Utah 341; Henderson v. Adams, 15 Utah 30; Watson v. Mayberry, 15 Utah 265, 266, Syllabus; Blish v. McCornick, 15 Utah 188; McKay v. Farr, 15 Utah 261.

MINER, J., delivered the opinion of the court. BARTCH, C. J., and BASKIN, J., concur.

OPINION

MINER, J.

STATEMENT OF FACTS.

This is an action brought by the plaintiff who claims to be the owner of the Jupiter lode mining claim, against the defendant, who claims to be the owner of the Juniper lode mining claim and to own plaintiff's title to the Jupiter by re-location. Plaintiff asks to have his title quieted and confirmed and for injunction. After a hearing on the merits, the court made its findings of fact and conclusions of law, which so far as material are as follows:

2. That on the 14th day of May, 1881, the Jupiter lode mining claim, in the West Mountain Mining District, Salt Lake County, Utah was located by Thomas E. Jones and Joseph Householder; that on the 23d day of April, 1883, Joseph Householder conveyed his one-half interest in the Jupiter claim to J. D. Lamb; that in 1885, Thomas E. Jones, through his attorney in fact, John Strickley, conveyed his one-half interest to plaintiff and one Herrick; that in 1889, plaintiff duly advertised out the interests of J. D. Lamb and said Herrick in said claim, for their failure to do their share of the assessment work on said claim in previous years.

3. That in 1881 and 1882, Thomas E. Jones, and Joseph Householder did some work upon the Jupiter claim.

5. That notice of location of said Jupiter claim was posted on the ground at the time of location of said claim, and that said claim was at the same time duly staked at the corners so that boundaries of said claim could be readily traced; that said stakes were standing in 1885, when this plaintiff acquired his first interest in said claim, and have been substantially maintained by this plaintiff from that date down to the present time.

6. That this plaintiff went into possession of all of said Jupiter lode mining claim on the 14th day of August, 1885, and that since said date this plaintiff Klopenstine, has done work upon said claim sufficient in value to satisfy the statutes and rules of the mining district where the claim is situated, being at least one hundred ($ 100) dollars worth of work for said claim in each year from 1885, down to the present time.

7. That in 1883, Joseph Householder, at the request of Thomas E. Jones, located a claim called the Juniper, under which location the defendant in this action now claims, which said location overlaps and conflicts with the Jupiter claim; that no work was done on said Juniper claim until 1885, when some work was done by House-holder; that from 1885 until 1892, no work was done on the Juniper claim.

And as conclusions of law, the court finds:

First: That the location of the Jupiter claim in 1881, was a valid and perfect location, made in accordance with the statutes of the United States, and the then Territory of Utah and the rules of West Mountain Mining District.

Second: That the Juniper location was never validated.

Third: That this plaintiff resumed work on said Jupiter claim after its location and before any other rights had intervened, in the month of August, 1885.

Fourth: That this plaintiff has maintained his possession of said claim ever since and has complied with the laws in respect to annual work.

Fifth: That this plaintiff is entitled to the ground covered by the Jupiter location, and is entitled to enter and patent the same."

After stating the facts, MINER, J., delivered the opinion of the court.

Subsequent to the signing and filing of the findings of fact, conclusions of law, decree and judgment, appellant made a motion for additional findings of fact, and alleges error on the refusal of the court to grant his motion.

We find no error in this refusal. The motion was not made until after the findings were filed and judgment entered.

In Clawson v. Wallace, 16 Utah 300, 52 P. 9, it was held not good practice after findings and judgment, for the court to supplement such findings and file additional findings at the request of either party while the judgment is allowed to stand.

In equity cases the appeal comes here upon both questions of law and fact, and it is made our duty to review both questions, when properly presented.

It appears that on December 10, 1883, after Jones and Householder had located the Jupiter in 1881, without doing all the assessment work for the years 1882 and 1883, that Joseph Householder at the request of Jones, located or re-located the Juniper on the same ground and original lode covered by the Jupiter, for the alleged reason that the ground had been abandoned. The notice states that a re-location was made. The court found, and the testimony shows that this location overlaps and conflicts with the Jupiter. No work was done on the Juniper after its location in 1883 until 1885, when Householder did a little work in cleaning out an old shaft, but not sufficient to cover the assessment work required by law, and from 1885 to 1892, very little, if any work was done on the Juniper. We are unable to find evidence that the Juniper was staked at the time of its location or re-location; nor was there any marking of the location on the ground so that its boundaries could be readily traced; but stakes were set some time after 1885, but before this action was brought.

It appears from the testimony that when the Jupiter was located its location was marked upon the ground so that its boundaries could be readily traced. The claim was staked on the day of its location on May 14, 1881, and at the same time monuments of rock were erected and notice of discovery was posted thereon. The witness said I put up the discovery stake, and one on each corner, making in all five stakes. I located the Jupiter and staked it on the day of location, and put up monuments of rock and a notice at the discovery....