Leveridge v. Hennessy

• Decision Date: 06 October 1913
• Citation: 135 P. 906,48 Mont. 58
• Parties: LEVERIDGE ET AL. v. HENNESSY ET AL.
• Court: Montana Supreme Court

135 P. 906

48 Mont. 58

LEVERIDGE ET AL. v. HENNESSY ET AL.

Supreme Court of Montana

October 6, 1913

Appeal from District Court, Granite County; Geo. B. Winston, Judge.

Action by R. S. Leveridge and another against Tom Hennessy and another. From an order granting a new trial, plaintiffs appeal. Reversed.

D. M Durfee, of Philipsburg, and Wm. E. Moore, of Missoula, for appellants.

Wm Meyer, of Butte, for respondents.

SANNER J.

Action by appellants to quiet title to a portion of the East Brooklyn lode, Granite county, Mont., which is in apparent conflict with a prior location of the Speculator lode claimed by respondents. The trial was to the court, Hon. Geo. B. Winston presiding without a jury, and he made findings of fact and conclusions of law in favor of appellants. Thereafter respondents, having filed their notice of intention to move for a new trial and having caused their bill of exceptions to be signed and settled by Judge Winston, filed an affidavit disqualifying him from further proceeding with the motion. Thereupon the Honorable J. Miller Smith, of the First judicial district, was called in to hear and determine the motion, and the same, having been submitted to him, was granted. From the order granting respondents' motion for new trial, this appeal is taken.

Much space is give in the briefs to a discussion of the question whether the ruling of a judge called in to pass upon a motion for new trial is to be tested by exactly the same standards of discretion as would be applied to that of the judge who tried the case if he had ruled thereon. The question is an interesting one and unsettled in this state; but we do not deem the present case an opportune one for its consideration for reasons which will presently appear.

The contention of appellants is: (1) That the markings of the Speculator as now claimed by the respondents are not the same as originally made upon the ground, and therefore the respondents abandoned their claim; and (2) if the markings of the Speculator as now claimed by the respondents are the original markings upon the ground, then the location was void ab initio because of a substantial departure from the calls of the declaratory statement. The subjoined drawing will illustrate the situation; the > representing the point of discovery; the double line representing the Speculator as now claimed by the respondents; the single line representing the Speculator as originally marked upon the ground, according to appellants; and the broken line representing the claim as it would appear if in literal conformity to the calls of the declaratory statement.

As to whether the Speculator was ever marked upon the ground in the manner asserted by appellants (shown by the single line), there is a sharp conflict in the evidence, but no good purpose would be served by reciting the testimony at length, for the reason that the trial court did not specifically find upon the subject. The finding, so far as it touched upon the asserted claims of respondents, is that they "never have been and are not now the owners of the alleged Speculator quartz lode mining claim * * * and are not and have not been at any time the owners of the area in conflict between the said East Brooklyn quartz lode mining claim and the said alleged Speculator quartz lode mining claim." As we read this finding, it proceeds upon the theory that the location of the Speculator was void and is inconsistent with a valid claim subsequently lost by abandonment.

Whether the location of the Speculator was void must be determined by the only criterion upon which it is assailed, viz., a fatal divergence between the declaratory statement as filed and the markings of the claim upon the ground.

The statute in force when the Speculator location was made (section 3612, Pol. Code 1895, as amended by Laws 1901, p 141) did not require, as it did before and has since, that the declaratory statement contain a description of the corners with the markings thereon, but it was required of the locator (section 3611) that, within 30 days after posting his preliminary notice of location, he "define the boundaries of his claim by marking a tree or rock in place or by setting a post or stone at each corner or angle of the claim," and that, within 60 days after posting his preliminary notice of location, he file a declaratory statement containing, among other things, "the number of feet claimed in length along the course of the vein each way from the point of discovery, with the width on each side of...