Lockhart v. Rollins

• Decision Date: 11 March 1889
• Parties: LOCKHART ET AL. v. ROLLINS
• Court: Idaho Supreme Court

21 P. 413

2 Idaho 540

LOCKHART ET AL. v. ROLLINS

Supreme Court of Idaho

March 11, 1889

EXCEPTIONS-STIPULATION EXTENDING TIME-WAIVER.-When exceptions to evidence are taken during the trial, but such exceptions are not settled until two months after the trial, and more than a month after filing decision the appellant then having prepared a case embodying a bill of exceptions, in which bill the exceptions taken during the trial are included, and the case containing such bills allowed, and settled without objection in the presence of the attorneys for the respective parties, held that such exceptions are not waived; held, also, that by the failure to object at the settlement the party is deemed to have agreed to the extension of time under section 2426 of the Revised Statutes of Idaho.

LOCAL CUSTOM OF MINERS AS TO TRANSFERS.-Evidence of local customs of miners, as to the manner of transfers of interests in mining claims, previous to July 26, 1866, is admissible.

VERBAL TRANSFERS-CHANGE OF POSSESSION.-Verbal transfers, if followed by change of possession, are valid as transferring claimant's interest.

LABOR OF WATCHMAN-WORK DONE ON MINE.-Where mining works are idle time and labor of a watchman and custodian on the property in taking care of it is labor done on the claim.

RELOCATION-OWNERS' RIGHTS.-A party cannot make a valid relocation of lands legally possessed by another, until the owners' rights have been abandoned, forfeited or otherwise ended.

AGENT OF NONRESIDENT OWNERS.-The undertaking by one on the ground to procure a purchaser for a mining claim, the owner being nonresident of the territory and having no other agents in the territory to look after the claim, constitutes a fiduciary relation of such persons in relation to such property.

AGENT RELOCATING FOR HIMSELF.-A person sustaining such fiduciary relation in respect to a mining claim cannot defeat the rights of his principal by relocating it for himself.

SAME.-If he so do relocate it, and benefit accrue from such act, the benefit accrues to the owner, and not to the relocator.

(Syllabus by the court.)

APPEAL from District Court, Alturas County.

This action is for the recovery of possession of a certain mining claim situate on Bear creek, Alturas county, Idaho, known as the "Ada Elmore Lode and Mining Claim." The complaint alleges that the plaintiffs have a "legal right to occupy and possess" the claim by virtue of compliance with all the requirements of law and rules of miners, and of actual prior occupancy of it as a mining claim; also that the defendant, on the fourth day of January 1886, while in the employ of the plaintiffs as their agent and as such agent in the actual occupancy of said property, made a relocation of the property adverse to the rights of the plaintiffs, intending the same to be for his benefit; that the defendant ever since such act wrongfully withheld possession from the plaintiffs, to their damage, etc.; and prays judgment for the possession of the premises, with damages for detention; and closes with a general prayer for relief. The answer is a general denial, but avers, among other things, that "the said alleged original locations on said Ada Elmore lode" consisted of several mining claims located thereon, by the discoverers thereof, in 1863, extending twelve hundred feet in length, along said lode, and no more, "with a width of one hundred feet; that prior to the nineteenth day of June, 1878, said Pittsburgh and Idaho Gold Mining Company had or claimed an interest in, or right of possession of, seven hundred feet undivided of said twelve hundred feet of said premises; that on that day the plaintiff, Charles Lockhart, as assignee of one Newton, a judgment creditor of said company, and purchaser of said interest of said company, under a sheriff's sale thereof, succeeded, by sheriff's deed, to whatever interest," etc., said company had in said premises; that thereafter, and until the defendant's discharge, in August, 1885, the defendant acted as agent for said Lockhart, in the care and supervision of said mining claim and business, and improvements connected therewith; that in 1883 the plaintiff Lockhart contracted with defendant to pay defendant for his services as such agent $ 500 a year, beginning January 1, 1883, in consideration of which the defendant "agreed to take and keep the care and supervision of said property, business, and improvements; prevent waste thereon; preserve the possession thereof; attend to the payment of taxes and hire of laborers to perform the requisite annual labor, to be paid out of funds to be furnished by the said Lockhart." Alleges performance of such duties until his discharge, in August, 1885. Alleges payment of such salary for 1883 and 1884, and claims such salary as unpaid for 1885, up to July 31st of that year; and alleges that the assessment work for 1885 was not done, whereby, and "by force of the law," the claim "became forfeited and relegated to the body of public mineral lands"; and on the fourth day of January, 1886, he "located a claim as the 'Ada Elmore,' including said premises, of twelve hundred feet long, and one hundred feet wide, enlarging the location to fifteen hundred feet in length by six hundred feet in width; claiming such relocation for his benefit; and closing with prayer for judgment against said plaintiffs for the right of possession of his said Ada Elmore lode, and for costs, and that the judgment "be certified to the register of the land office," etc. The case was tried by the court without a jury, at the October term, 1887. Findings were filed December 10, 1887, and judgment for plaintiffs on such findings of fact and law was entered on that day. The findings and judgment affirm the right of the plaintiffs to all the lands described in the defendant's location of January 4, 1886. This part of the judgment is based mainly on the following findings of fact and conclusions of law: "The court finds as a fact that on the fourth day of January, 1886, a fiduciary relation existed between the plaintiffs and defendant, by reason of the employment of the defendant to procure for the plaintiffs a purchaser for the property included in the defendant's location of January 4, 1886, for a percentage of the proceeds of such sale as his commission," and as conclusion of law that the defendant, sustaining such fiduciary relation in respect to this property, acquired no rights by his relocation--the lands so affected by this finding extending beyond the original claim in length two hundred and fifty feet, and on each side two hundred and fifty feet, the point of location at which defendant placed his notice being at the point of plaintiffs' shaft in the Ada Elmore lode claim. As to whether this finding of fact is sustained by the evidence, it was further found that, during the year 1885, the annual labor required by law (U. S. Rev. Stats., sec. 2324) was performed by plaintiffs on said Ada Elmore lode claim by caring for and maintaining the buildings and improvements thereon; and hence that the claim was not on the fourth day of January, 1886, subject to relocation. We shall consider these findings hereafter.

Order denying a new trial sustained, and judgment affirmed.

J. B. Rosborough, for Appellant.

It was error to admit oral testimony to show the location of a mining claim and transfers of interest therein, contrary to the statute of frauds. (Hopkins v. Noyes, 4 Mont. 550, 2 P. 280.) The admission of sheriff's deed, without showing a valid judgment as a predicate, was error. (Freeman on Judgments, sec. 350; People v. Doe, 31 Cal. 220, 221; Lanning v. London, 4 Wash. C. C. 513, Fed. Cas. No. 8076.) In proceedings to determine adverse claims to locations of mineral lands, it is incumbent upon the plaintiff to show a location which entitles him to possession against the United States, as well as against the other claimant. (Gwillim v. Donnellan, 115 U.S. 45, 5 S.Ct. 1110.) A valid location of a claim is not made by taking possession alone; and merely working mineral land gives no right of possession against a locator who complies with the regulations prescribed by law. (Horswell v. Ruiz, 67 Cal. 111, 7 P. 197.) The right of possession is acquired only by such compliance. (Belk v. Meagher, 104 U.S. 279; Hopkins v. Noyes, 4 Mont. 550, 2 P. 280.) Expenses of money and time in traveling about matters connected with a mining claim are in no sense labor performed on the claim. (Du Pratt v. James, 65 Cal. 555, 4 P. 562; Russell v. Brosseau, 65 Cal. 605, 4 P. 643.) 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. (Belk v. Meagher, 104 U.S. 284; Garthe v. Hart, 73 Cal. 541, 15 P. 93.)

Lyttleton Price and Richard Z. Johnson, for Respondents.

Mining locations and transfers of mining property prior to 1866 may be proved by parol. Conveyances of claims prior to 1866 may be made by parol. (Kinney v. Mining Co., 4 Saw. 382 Fed. Cas. No. 7827; Mining Co. v. Taylor, 100 U.S. 37.) Color of title, even under a void and worthless deed, has always been received in evidence that the person in possession claims for himself, and, of course, adversely to all the world. (Pillow v. Roberts, 13 How. 477; Kennebec Purchase v. Laboree, 2 Me. 275, 11 Am. Dec. 79.) A location may be made by an agent. (Schultz v. Keeler, ante, p. 333, 13 P. 481; Gore v. McBrayer, 18 Cal. 582-588; Morton v. Mining Co., 26 Cal. 534; Murley v. Ennis, 2 Colo. 300; Thompson v. Spray, 72 Cal. 528, 14 P. 182.) A trustee or agent cannot deal with the subject of the trust or agency for himself. Equity will declare any act of the agent to be for the benefit of his principal....