Lockhart v. Farrell

• Decision Date: 29 September 1906
• Docket Number: 1720
• Citation: 86 P. 1077,31 Utah 155
• Court: Utah Supreme Court
• Parties: LOCKHART v. FARRELL

86 P. 1077

31 Utah 155

LOCKHART v. FARRELL

No. 1720

Supreme Court of Utah

September 29, 1906

Appeal from District Court, Summit County; T. D. Lewis, Judge.

Action by James M. Lockhart, administrator of John G. Rhodin deceased, against James Farrell. From a judgment for defendant, plaintiff appeals.

REVERSED AND REMANDED.

Snyder & Snyder for appellant.

APPELLANT'S POINTS.

The South Mountain was located August 21, 1900, and the owners were not required to do any assessment work thereon, until 1901, and had the whole of that year in which to do it. (R S. U.S., 2324; Act June 22, 1880, 21 Stat. L., p. 61.) It was not, therefore, open to location until the prior claim was extinguished, and any attempt to so locate would be wholly nugatory and void. (Belk v. Meagher, 104 U.S. 279; Book v. Justice M. Co., 58 F. 106-28; Malone v Jackson, 137 F. 878; Hall v. Hale, 8 Colo. 351, 8 P. 580; Shattuck v. Costello, 68 P. 529; Slavonian M. Co. v. Perasich, 7 F. 331.)

"No location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim." (R. S. U.S., sec. 2320; Mining Co. v. Allman, 23 Utah 410-18; Harrington v. Chambers, 3 Utah 94; Hayes v. Lavignino, 17 Utah 185, 190-97; King v. Amy, etc., Co., 152 U.S. 225; Erhardt v. Boaro, 113 U.S. 527; 1 Lindl., Mines, sec. 335 and cases; Perigo v. Erwin [Utah], 85 F. 904.)

"A mining claim perfected under the law is property in the highest sense of that term." (Forbes v. Gracey, 94 U.S. 767; Belk v. Meagher, 104 U.S. 279.)

"The location of a mining claim is void when its discovery point is placed within an existing valid claim." (Watson v. Mayberry, 15 Utah 265; Reynolds v. Pascoe, 24 Id. 219; Eilers v. Boatman, 3 Id. 159; Belk v. Meagher, 104 U.S. 279; Gwillim v. Donnellan, 115 U.S. 45; Upton v. Larkin, 7 Mont. 449, 17 P. 728; Perigo v. Erwin, 85 F. 904.)

No legal right can be created which depends for its validity upon a trespass. (Atherton v. Fowler, 96 U.S. 513; Eilers v. Boatman, 3 Utah 159.)

"Before there can be a relocation there must be a forfeiture." (Belk v. Meagher, 104 U.S. 279; Lindl., Mines, secs. 363, 402, 408; Barringer & Adams, Mines, p. 306.) Before there can be a relocation there must be an ending of the previous claim. (Zerris v. Vanina, 134 F. 610, 614; Omar v. Soper, 18 P. 448; Little Gunnel M. Co. v. Kimber, 1 Morr. M. R. 536; Lakin v. Sierra Buttes Co., 25 F. 337; Beals v. Cone, 62 P. 948; Lacey v. Woodward, 25 P. 785; McKay v. McDougall, 64 P. 669; North Noonday M. Co. v. Orient M. Co., 1 F. 522.) This court agrees with this. (Klopenstein v. Hays, 20 Utah 45; Justice M. Co. v. Barclay, 82 F. 554.)

Dey & Stevens for respondent.

STRAUP, J. BARTCH, C. J., concurs in the judgment. McCARTY, J., concurs.

OPINION

STRAUP, J.

The respondent applied for patent to the Cliff lode mining claim located by him August 1, 1901. The appellant adversed the application, claiming the right to the possession of the same ground as owner and claimant of the Divide lode mining claim located by his intestate January 2, 1903. This action was brought pursuant to section 2326, Rev. St. U.S. [U.S. Comp. St. 1901, p. 1430], to adjudicate these adverse claims. Upon findings made by the trial court a judgment was entered for the respondent, decreeing to him the possession of the ground. On the trial, the appellant offered evidence tending to prove that at the time of the location of the Cliff claim the ground so located and in controversy was covered by a prior valid and subsisting location called the "South Mountain," located by W. I. Snyder and Thomas Roscamp on August 21, 1900, but which became forfeited December 31, 1901, for nonperformance of the annual labor and development work required by law; and that no adverse claim was filed in behalf of the South Mountain against the application for patent. This evidence was received by the court subject to the objection that it "was incompetent, irrelevant, and immaterial, and that no adverse claim was filed on behalf of the South Mountain." The court specifically found "that the said Cliff, Divide, and South Mountain claims, as located, cover substantially the same ground, and that the place of discovery of said Cliff lode mining claim was within the boundaries of said alleged South Mountain mining claim."

There being no adverse filed on behalf of the South Mountain claim, the decisive question is whether the appellant, as owner of the Divide Claim, who, as such, adversed the application for patent, is in position to show and assert that at the time of the location of the Cliff claim the ground located was covered by the South Mountain, a then valid and subsisting claim; that the discovery point of the Cliff was within the boundaries of the South Mountain; and that, therefore, the locator of the Cliff did not discover a vein or lode on, or make a valid location of, unappropriated and unoccupied mineral lands of the United States, and because thereof his location is and was void not only against the locators of the South Mountain, but all the world. The following propositions may be said to be well established and generally recognized: (1) That a discovery of a vein or lode on unoccupied and unappropriated mineral lands of the United States is a prerequisite to a valid location of a mining claim. (2) That a location based upon a discovery within the limits of an existing and valid location is void. (3) That what has been located once under the law shall not be relocated until the first location has expired, until the rights of the former owner or locator have come to an end, and until in law he has forfeited or abandoned his claim and left the property open for another to take up. Until such abandonment or forfeiture the ground is not subject to relocation, for it is essential that at the time of the location the ground located should be a part of the public domain. Hence, a relocation on lands actually covered at the time by another valid and subsisting location is void; and this not only against the prior locator, but all the world, because the law allows no such thing to be done. (4) That when a forfeiture has been occasioned the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs or assigns, or legal representatives, have not resumed work upon the claims after failure and before such location. (5) that a location to be good must be good when made, and that each claimant must stand on his own location and can take only what it will give him under the law. These propositions are readily deducible from sections 2319, 2320, 2322, and 2324, Rev. St. U.S. [U.S. Comp. St. 1901, pp. 1424 to 1427], and are supported by decisions from both federal and state courts, and by the text-writers. Among them may be noticed the following: Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735; Gwillim v. Donnellan, 115 U.S. 45, 5 S.Ct. 1110, 29 L.Ed. 348; Zerres v. Vanina (C. C.), 134 F. 610; Book v. Justice Min. Co. (C. C.), 58 F. 106; Perigo v. Erwin (C. C.), 85 F. 904; Sullivan v. Sharp (Colo. Sup.), 80 P. 1054; Kirk v. Meldrum, 28 Colo. 453, 66 P. 633; Kirk v. Meldrum, 28 Colo. 453, 65 P. 633; Tuolumne Consol. M. Co. v. Maier, 134 Cal. 583, 66 P. 863; Quigley v. Gillett, 101 Cal. 462, 35 P. 1040; Wilson v. Freeman, 29 Mont. 470, 75 P. 84, 68 L.R.A. 833, and notes; Upton v. Larkin, 7 Mont. 449, 17 P. 728; Shattuck v. Costello (Ariz.), 68 P. 529; Jordan v. Duke (Ariz.), 53 P. 197; Beals v. Cone (Colo. Sup.), 62 P. 948; Watson v. Mayberry, 15 Utah 265, 49 P. 479; Reynolds v. Pascoe, 24 Utah 219, 66 P. 1064; 1 Snyder on Mines, sec. 572, 573; 1 Lindley on Mines (2 Ed.), secs. 337, 363.

It however, in effect, is urged by the respondent that the above propositions, if true, would apply only in a contest between the owners of the South Mountain and the Cliff, had the former not forfeited their claim, and had they adversed the application for patent. In other words, the assertion is made that under such circumstances the location of the Cliff would be invalid as to the owners of the South Mountain claim, but by their failure to adverse the application for patent the Cliff location is valid as to all the world because of an alleged indisputable presumption that no area in conflict between the South Mountain and the Cliff claims ever existed, or, if it existed, whatever paramount rights possessed by the owners of the South Mountain, in effect, inured to the benefit of the owner of the Cliff. Hence it is argued that the owner of the Divide is not in position to show or assert that the Cliff, when located, was upon ground then covered by the South Mountain, a then valid and subsisting claim, or that the discovery point of the Cliff was within the boundaries of the South Mountain. In support of this contention the case of Lavagnino v. Uhlig, 198 U.S. 443, 25 S.Ct. 716, 49 L.Ed. 1119, is cited and relied on. We think that case does not decide the question here presented, and does not support the contention of the respondent. There the court dealt with the question of a mere conflict area, a case of overlapping claims between a senior and a junior location predicated on the hypothesis that both were valid locations. The statement of facts on which the opinion was based are, that Uhlig and McKernan applied for patent to mining lode claims known as the "Uhlig No. 1" and "Uhlig No. 2," located by them January 1, 1899. Lavagnino filed an adverse claim on behalf of the Yes You Do mining claim, located by Smith, a deputy mineral surveyor, who thereafter assigned the claim to Lavagnino. It was alleged that the Uhlig claims overlapped the Yes You Do, and that the area in conflict, as to Uhlig ...