Lucky Five Min. Co. v. Central Idaho Placer Gold Min. Co.

• Decision Date: 26 July 1951
• Docket Number: No. 7706,7706
• Citation: 235 P.2d 319,71 Idaho 490
• Parties: LUCKY FIVE MINING CO. v. CENTRAL IDAHO PLACER GOLD MINING CO., LIMITED, et al.
• Court: Idaho Supreme Court

Page 319

235 P.2d 319

71 Idaho 490

LUCKY FIVE MINING CO. v. CENTRAL IDAHO PLACER GOLD MINING CO., LIMITED, et al.

No. 7706.

Supreme Court of Idaho.

July 26, 1951.

James G. Towles, Kellogg, Therrett Towles, Spokane, Wash, Morton H. Van Nuys, Seattle, Wash., for appellant.

Wilbur L. Campbell, Robert M. Robson, Grangeville, Earle W. Morgan, Lewiston, for respondents.

TAYLOR, Justice.

The appellant, plaintiff below, brought this action in 1943 to quiet its title to eight placer mining claims in Elk City and Orogrande mining districts in Idaho County Idaho. Due to delays, allegedly occasioned by World War II, the action did not come to trial until March 28, 1950. In the meantime, the complaint was amended to set forth a detailed metes and bounds description of two of the claims, the 'Relief Placer No. 2' and 'California Placer.' The amendment was made to conform the description in the pleading to amended location notices filed in 1947. The answer of the defendants Noon, Higgins and H. & H. Mines, a copartnership, was amended to meet the amendments of the complaint. Defendants Morgan and Sheppard filed answers and cross-complaints subsequent to the amendment of the complaint.

Following findings made, the court entered its decree quieting plaintiff's title in all of the claims, subject, however, to leases held by the defendants Noon, Higgins and H. & H. Mines. There are two leases, both dated October 6, 1939, executed by the plaintiff as lessor in favor of W. A. Noon as lessee. Defendants plead that Noon holds these leases for the benefit of himself, Higgins and H. & H. Mines. One conveys a leasehold estate in the 'Rock Pile Placer' and 'Rock Pile No. 2 Placer.' The other conveys a leasehold estate in the 'California,' 'Idaho,' 'Oregon,' and 'Relief Placer No. 2.' Through error of the draftsman, the decree was drawn to include in this last mentioned lease the 'Ophir Placer' and 'Ophir No. 2 Placer.' This error is assigned by appellant and acknowledged by respondents.

In its findings the trial court accepted the description of seven of the claims as set out in the complaint, but refused to accept plaintiff's description of Relief Placer No. 2. As to this claim, plaintiff's title was quieted 'as described and marked on the ground in the original location notice thereof and as described in plaintiff's Exhibit No. 3 and as shown on H. & H. Mines' Exhibit No. 2.

The ground described for this claim in the amendment to the complaint covers a large part of the ground described in the location notice of the 'Triangle Placer Claim,' title to which was quieted in the defendants Sheppard and Noon. It is contended by defendants and cross-complainants that the land described in the original location of the Relief Placer No. 2 does not constitute any part of the land described in the location of the Triangle Placer Claim; that is, there is actually no conflict between these two claims. While the plaintiff's position is that a greater part of the ground covered by the Triangle Claim is included within the bounds of the Relief Placer No. 2.

The sole question presented is the sufficiency of the evidence to support the findings and decree of the court quieting title to the disputed area in the defendants, Sheppard and Noon. Relief Placer No. 2 was located by J. J. Schoner, Charles Forman, W. F. Boettcher and George Satchan, October 5, 1918. In the notice the claim is described as follows:

'The Relief Placer no. 2 comences at this notice and discovery runing 600 feet East to North East corner stake, thance 1500 feet South to South east corner stake, thance 600 feet West to Southwest corner stake, thance 1500 feet north to North West corner stake and place of begining.

'This claim is 300 feet aboft mond of Relief Creek.

'The Mining Claim above described shall be known as the Relief Placer No. 2. Situated at Crooked River right hand Baar.'

It is agreed, and the court found, that plaintiff is the present owner of the rights acquired by this location. Defendants raised no question of forfeiture by failure to do the required assessment work. The proof shows that the claim was maintained valid in that respect.

J. J. Schoner, one of the original locators, was of German descent and spoke English brokenly. It is assumed that the location notice was drawn by him. In any event, the parties agree on the interpretation of the words used. That is, the words 'aboft mond of Relief Creek' are to be read, 'Above the mouth of Relief Creek' and 'Baar' means 'bar.' Through the area in question, Crooked River runs in a northerly direction. Relief Creek is a tributary flowing in from the east. Opposite the mouth of Relief Creek is a bar or island in the channel area. It is this bar which is believed to be valuable placer ground and is the area primarily desired by both parties. In the earlier part of the season this bar becomes an island, there being a channel on both the east and the west, both of which are occupied by the river at that season. During low water season the river is confined to the main channel, and flows around the easterly edge of the bar. This bar is described by some of the witnesses, including H. A. Heron, a licensed engineer and surveyor and who had been a commissioned United States Mineral Surveyor, as a 'right hand bar.' The witnesses for the defense, including Walter Hovey Hill, a surveyor and mining engineer licensed in Idaho, described it as a 'left hand bar.' There is no evidence of any other bar within 300 feet of the mouth of Relief Creek. The same conflict appears in the interpretation placed by the witnesses on the words, '300 feet above the mouth of Relief Creek,' the defense contending that this could mean 300 feet upstream on Crooked River, or 300 feet upstream on Relief Creek; while plaintiff's witness represented it as meaning 300 feet north of the mouth of Relief Creek; that is, to Schoner 'above' meant 'north.' At the time of the trial all of the original locators of Relief Placer No. 2 were dead. Plaintiff's witness Clinkenbeard testified that in 1927 (at the time plaintiff purchased the claim from the original locators) Schoner pointed out to Clinkenbeard the corner post No. 1 and discovery monument, corner No. 2 and corner No. 3, and that later during the same summer he, himself, found corner No. 4. He described these monuments and the discovery pit and testified that they were located on the ground at the points shown on the plat made by surveyor Heron, Sheppard's Exhibit No. 1.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

From this testimony it appears that the discovery and the staking of the claim on the ground conformed to the requirements of the law. In fact, nothing to the contrary is offered by the defense, except the negative testimony of the defense witnesses to the effect that at the time they located the Triangle Claim they looked for posts or monuments which might indicate the ground they were locating had been previously located, and found none. The Triangle Placer Claim was located by A. Anderson and R. M. Carrey on the 11th day of October, 1935, and their notice of location was filed October 25, 1935. The notice described the claim by metes and bounds as on H. & H. Mines' Exhibit No. 2, prepared by surveyor Hill. Thus, both of the claims as staked on the ground cover the bar in question.

In 1945, Mr. Clinkenbeard, who was an officer of plaintiff company, took a survey party on the ground to relocate the corners of Relief No. 2. This group included the surveyor Heron and witnesses Foss and Strack. These men and Mr. Clinkenbeard testified they found a caved in discovery pit, pointed out by Clinkenbeard, but no post or monument at that point; that they found corners No. 2 and No. 3 at points indicated by Clinkenbeard. These monuments bore ancient markings which were not readily legible. The engineer Heron testified he thought he could distinguish 'Relief' on corner monument No. 2, and that he ran his survey back from this monument to the pit where No. 1 was supposed to be and then commencing from there ran his survey around the claim. Post No. 4 was not located until the next day. The sidehill area where it was thought to be had been burned over. A burned-off stump, partly squared, was determined upon as the corner. The No. 1 post, with the location notice inserted in a split on the top of the post, was found lying down in some brush some distance from the site of No. 1 corner, and was restored to the point where Clinkenbeard had indicated it should be. It appears this post had been torn down and cast away. This, in brief, is the most important part of the evidence concerning the location on the ground of Relief No. 2.

On the part of the defense, engineer Hill, taking the words of the original notice of location to mean 300 feet upstream from the mouth of Relief Creek, testified that corner No. 1 would be some 50 feet north of the north line of Cleveland Placer, and running thence east 600 feet, south 1500 feet, west 600 feet, and north 1500 feet to beginning, the claim would take in the area east of the Cleveland and south of the California, as shown on his map, H. & H. Mines' Exhibit No. 2. There is no other evidence in the record to support the location thus assumed by Hill. No witness testified to any discovery work, stakes, posts or monuments upon this assumed location, nor that any assessment work or mining work had ever been done by anyone thereon. This area, commencing with the line marked the 'dredging limits,' rises sharply through the shaded area and levels off to the east to form a bench land. Hill said he would call it a 'bench,' but that Schoner might have called it a 'bar.' Heron testified it could not be regarded as a bar; that it has no value as placer ground; and that while he agreed 'above' ordinarily means upstream, 'it's ridiculous to think of a placer claim being staked...