Law v. Fowler

• Decision Date: 18 October 1927
• Docket Number: 4709
• Citation: 261 P. 667,45 Idaho 1
• Parties: ELIZABETH LAW, Appellant, v. W. P. FOWLER and H. J. KOONCE, Respondents
• Court: Idaho Supreme Court

261 P. 667

45 Idaho 1

ELIZABETH LAW, Appellant, v. W. P. FOWLER and H. J. KOONCE, Respondents

No. 4709

Supreme Court of Idaho

October 18, 1927

MINES AND MINERALS-PLEADING-UNPATENTED MINING CLAIM-APPEAL AND ERROR-MOOT QUESTION-NONSUIT-LOCATION NOTICE, REQUIREMENT OF-BURDEN OF SHOWING CLAIMS-PERMANENT MONUMENT-SUFFICIENCY OF RECORD TITLE-STATUTORY RULE-RIGHT TO POSSESSION OF CLAIM.

1. Defenses to action to recover unpatented mining claim, that the location notice was invalid because failing to tie the claim to a permanent monument, and that plaintiff failed to perform annual assessment work and thereby forfeited her rights to the claim, are not so inconsistent that both may not be pleaded, under C. S., sec. 6698, permitting a defendant to set forth as many defenses as he has, the facts of the two defenses not being inconsistent or contradictory.

2. Any error in denying jury trial, the court having stated that he would treat the jury which was impaneled as acting in an advisory capacity only, is a moot question, the court having properly granted nonsuit.

3. Under Act Cong. May 10, 1872, sec. 5 (30 U.S. C. A., sec 28), in conformity to the provisions of which the Idaho statute in force at the time of a location of a mining claim (Laws 1879, Ter. Sess., p. 29), required it to be made mining claims could be referred to as permanent monuments in the location notice.

4. The presumption is that mining claims, referred to as permanent monuments in a location notice, exist, and the burden of showing they do not is on the party attacking the notice.

5. Whether mine referred to in location notice as two miles north was a permanent monument, and whether notice as a whole was sufficient to apprise prospectors of the precise location of the lode sought to be located, held to be for jury to determine.

6. Person suing for possession of unpatented mining claim fails to show record title by mere conveyances from persons not shown to be connected with the original location under which claim is made.

7. While under Rev. St. U.S. , sec. 2332 (30 U.S. C. A., sec 38), actual possession and working of unpatented mining claim for period required by local statute of limitations for adverse possession of mining claims dispenses with proof as to notice of location, it is still necessary to make proof of mineral discovery, performance of annual assessment work keeping of boundaries marked on ground, and occupancy during subsequent period when others initiated rights by locating a claim.

8. If one shows herself entitled to possession of an unpatented mining claim by virtue of a valid location or by adverse possession for statutory period, mere failure to perform annual assessment work, in absence of valid subsequent location of part or all of the ground, will not work a forfeiture.

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

Action in ejectment. From judgment of nonsuit, plaintiff appeals. Affirmed.

Judgment affirmed, with costs to respondents. Petition for rehearing denied.

J. G. Hedrick, for Appellant.

If the defendants relied upon the defense that the Montezuma had been forfeited for failure to do the assessment work or abandoned, then they must concede that the former location was valid, as there must have been a valid location before there could have been a forfeiture. (Martin on Mining Rights, p. 153; Shattuck v. Costello, 8 Ariz. 22, 68 P. 529; Cunningham v. Pirrung, 9 Ariz. 288, 80 P. 329.)

There can be no question but that this is a jury case and the plaintiff would be entitled to a trial by jury. The only question at issue is the right of possession of the ground and damages for the wrongful taking of the ore under the second cause of action. (Burke v. McDonald, 2 Idaho (310), 339, 13 P. 351; Taylor v. Middleton, 67 Cal. 656, 8 P. 594; Tripp v. Silver Dyke Min. Co., 70 Mont. 120, 224 P. 274; C. S., sec. 6837; Lively v. Butler, 108 Okla. 225, 236 P. 18.)

This is not an action to quiet title but a mere action of ejectment, and the plaintiff is only required to prove, first, the right of possession in the plaintiff; second, possession in the plaintiff; and, third, ouster of the plaintiff by the defendants. (McMasters v. Torsen, 5 Idaho 536, 51 P. 100.)

The original location notice, made in 1880, described the boundaries of the claim with certainty, and also referred to a particular object or mine which undoubtedly was a wellknown object at that time, and, from the lapse of time, it must be presumed that the original location was valid. In the absence of evidence to the contrary it will be presumed that the description is sufficient to identify the claim. (Lindley on Mines, sec. 383.)

As the evidence in this case shows conclusively that the plaintiff in this action and her predecessors in interest had been in open, adverse and notorious possession of this ground for more than five years immediately preceding the ouster by the defendants, she was relieved from the necessity of making proof of the recording of the notice of location. (Humphreys v. Idaho Gold Mines etc. Co., 21 Idaho 126, 120 P. 823, 40 L. R. A., N. S., 817.)

The adverse statutes of this state apply to mining claims, and adverse possession of a mining claim for a period of five years is sufficient under our statutes to maintain an action of ejectment. (Bradley v. Johnson, 11 Idaho 698, 83 P. 927; Humphreys v. Idaho Gold Mines etc. Co., supra; 9 Cal. Jur. 982, 986.)

Actual physical possession of a mining claim is not necessary, but compliance with the laws of the United States and this state is sufficient possession. (Sutherland, Code Pleading, sec. 6361.)

This being a motion for a nonsuit it admits the truth of all of the evidence submitted for and on behalf of the plaintiff and every inference of fact that may legitimately be drawn therefrom. (McCornick & Co., Bankers, v. Tolmie Bros., 42 Idaho 1, 243 P. 355; Moody v. Morris-Roberts Co., 38 Idaho 414, 226 P. 278.)

And it should have been denied unless there was no evidence material to the plaintiff on any question of fact about which reasonable minds might differ, which if found in favor of the plaintiff would have supported a judgment in her favor. (Pocatello Security Trust Co. v. Henry, 35 Idaho 321, 27 A. L. R. 337, 206 P. 175.)

The mere failure to do the assessment work does not break the continuity of possession as the right to resume work any time before a valid location is made on the ground still exists. (Morrison on Mining Rights, p. 128.)

Plaintiff, according to the testimony in the case, never forfeited her rights, as there is no evidence in the case to show that the defendants ever made a valid location on the ground; and until the defendants show that they have a valid location on the ground they have no right to question the sufficiency of the work done by the plaintiff. (Snowy Peak Min. Co. v. Tamarack & Chesapeak Min. Co., 17 Idaho 630, 107 P. 60; Knutson v. Fredlund, 56 Wash. 634, 106 P. 200; Lindley on Mines, sec. 405.)

A forfeiture of a mining claim for failure to do the assessment work is never presumed and it must be clearly established by clear and convincing proof, and every doubt will be resolved in favor of the validity of a mining claim as against one asserting a forfeiture. (Thornton v. Kaufman, 40 Mont. 282, 135 Am. St. 618, 106 P. 361; Strattan v. Raine, 45 Nev. 10, 197 P. 694, 200 P. 533.)

J. J. McFadden and Proctor K. Perkins, for Respondents.

Inconsistent defenses are permitted. (Harshbarger v. Eby, 28 Idaho 753, Ann. Cas. 1917C, 753, 156 P. 619; Pomeroy, Remedies and Remedial Rights, sec. 722; Bell v. Brown, 22 Cal. 671; Buhne v. Corbett, 43 Cal. 264.)

Equitable features should first be disposed of without the intervention of a jury (Cassin v. Nicholson, 154 Cal. 497, 98 P. 190; Penninger Lateral Co., Ltd., v. Clark, 22 Idaho 397, 126 P. 524.)

Plaintiff's rights were lost because of insufficient ties and failure to perform the necessary annual labor. (Brown v. Levan, 4 Idaho 801, 46 P. 661; Morrison v. Regan, 8 Idaho 291, 67 P. 955; 2 Lindley on Mines, 3d ed., secs. 623, 634; Kramer v. Settle, 1 Idaho 485; Garvey v. Elder, 21 S.D. 77, 130 Am. St. 704, 109 N.W. 508; Lockhart v. Wills, 9 N.M. 344, 54 P. 336.)

"The defendants are permitted to set forth as many defenses and counterclaims as they might have; and the same might, to a certain extent, be inconsistent with each other; yet they must not be so inconsistent that the proof of one defense would necessarily disprove the other." (Harshbarger v. Eby, supra.)

"Assuming that the defenses are utterly inconsistent, the rule is established by an overwhelming weight of judicial authority that unless expressly prohibited by the statutes they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defenses, nor can evidence in favor of either be excluded from the trial on the ground of inconsistency." (Pomeroy, Remedies and Remedial Rights, sec. 722.)

The court did not err in sustaining the motion for nonsuit and in entering judgment for the defendants. (Brown v. Levan, 4 Idaho 794, 46 P. 661; Morrison v. Regan, 8 Idaho 291, 67 P. 955.)

"A failure to perform the necessary work required by local rules or customs amounted to an abandonment of the claim and thereupon it might be occupied and appropriated by another." (2 Lindley, 3d ed., 623; Kramer v. Settle, 1 Idaho 485.)

"A locator cannot be deprived of his inchoate rights by the tortious acts of others, but there must be a bona fide effort to perform the work." (2 Lindley, 3d ed., sec. 634, p. 1577; Garvey v. Elder, supra.)

"The plaintiff can recover only upon the strength of his own title; and if he fails to show title to the claim, it is...