Matlock v. Stone

• Decision Date: 02 December 1905
• Citation: 91 S.W. 553,77 Ark. 195
• Parties: MATLOCK v. STONE
• Court: Arkansas Supreme Court

91 S.W. 553

77 Ark. 195

MATLOCK v. STONE

Supreme Court of Arkansas

December 2, 1905

Appeal from Marion Chancery Court; T. H. HUMPHREYS, Chancellor affirmed.

STATEMENT BY THE COURT.

This action arose under section 2326, Rev. Stat. U.S. over conflicting claims to a tract of mining land, and was begun in the Marion Chancery Court upon an adverse claim duly filed in the United States Land Office at Harrison, Arkansas, and the complaint, in substance, contained the following allegations:

That on the 1st day of January, 1899, one E. F. LeMarchal and others being in possession of the following lands in Marion County Arkansas, viz., N. E. 1/4 of Sec. 18, Tp. 17 N., R. 15 W made mineral location No. , Rush Creek Mining District of Marion County, Arkansas, on said lands, and known as the "Barney Gulch" placer mining claim. That said location was made by V. Jacquemin, F. Jacquemin, E. Jacquemin, E. F. LeMarchal, C. A. LeMarchal, and E. Keys in manner and form required by law, whereby they located and set up claim to said land as a placer mining claim, said land being valuable for the mineral thereon, and mineral having been discovered thereon. That each of said locators were citizens of the United States, and qualified to make the location. That the land was subject to location, being a part of the unappropriated public domain. That notice of the location was recorded on the 1st day of January, 1899, in the office of the recorder of the Rush Creek Mining District, in Marion County, Arkansas. That by reason of such location the locators became the owners of the possessory right and title to the land, which entitled them to hold same against all subsequent locators. The complaint then sets forth the title of appellee from alleged original locators, and alleges possession since January 1st, 1899, and the right to the exclusive possession and control of the land. It alleges compliance on the part of plaintiff and his grantors with the laws requiring the doing of assessment work. The complaint then sets forth that C. E. Matlock attempted to locate the land after the location under which plaintiff claims; alleges that she had failed to do the assessment work which the law requires; sets up the application by appellant Matlock to the land office for patent, the adverse claim by appellee, and the suspension of the application for patent until this adverse claim by appellee could be determined in the chancery court. It then alleges that the location which appellant relies on was void and a cloud upon appellees title. The prayer was that appellants location be canceled, and that appellant's title be quieted, and for all proper relief, etc.

The answer of appellant denies that appellee's grantors had placed a valid location notice on the land; alleges that notice of the location through which appellee claims was posted December 31, 1898, and not on January 1, 1899, as claimed in appellee's complaint. It denies that appellee or his grantors had been in possession of the land, and that they had done the assessment work which the law requires. The answer sets up in detail the alleged location made by herself and others on the 1st day of January, 1899; that they were citizens of the United States, and qualified to make the location; that the land was mineral land and subject to location; that appellant and other locators went into possession under their location, and had been in possession ever since, and had done the assessment work required by law, and were entitled to apply for and to purchase patent; that appellant had acquired the right and title of the other locators, and had applied for patent; that an adverse claim had been set up by appellee; that application for patent had been suspended, and the matter referred to the Marion Chancery Court to determine who was entitled to purchase patent. The prayer was that appellant's location be declared valid, and that her right and title to the possession of the land in controversy be quieted, etc. The decree recites that the cause was submitted upon the pleadings and exhibits, the depositions, and certain admissions of record, to the effect that appellee was a citizen of the United States, and had been at all times since he purchased the lands in controversy, and that one Luke Matlock was the agent of his wife, C. E. Matlock, in making the location, and in doing the assessment work. The decree recites that the depositions in the cause were those of Luke Matlock, J. F. Dudley, Henry Shepherd, and Z. Shepherd. The court found that the land in controversy "was located by the plaintiff's grantors as a placer mining claim on the 1st day of January, 1899, in manner and form required by law, and that each of said locators was a citizen of the United States, and that the plaintiff is in possession of said lands, holding the same as a placer mining claim, by conveyances from said locators and their grantees, that said location relied on by plaintiff had not been forfeited when the location relied on by defendant was made, and that the location relied upon by defendant was a cloud upon plaintiff's possessory title under his mineral location." The court decreed that the mining claim location of appellant be cancelled as a cloud upon appellee's possessory title, and that appellee have possession of the lands in controversy, for mining purposes.

Decree affirmed.

G. H. Perry, for appellant.

1. In order to make a valid location of a mineral claim on the public domain, each locator must be a citizen of the United States, and this fact must be alleged and proved. Barringer & Adams, 385-6; 1 Snyder on Mines, § 727; 6 Sawy. 299; 1 F. 522; 9 Mor. Rep. 529. Marking the boundaries of the location is essential to its validity. 72 Ark. 215.

2. Having held possession for three years and performed the assessment work required by law, appellant's possessory right is established. Kirby's Digest, § 5363; 70 Ark. 525.

Horton & South, and Seawel & Seawel, for appellee.

1. Where the transcript shows that it does not contain all the evidence on which the cause was heard, the court will presume that the evidence was sufficient to sustain the findings and decree of the chancellor. 58 Ark. 134; 44 Ark. 74; 54 Ark 159; 79 S.W. 761; 45 Ark. 240; 43 Ark. 451.

2. Proof of citizenship of appellee's grantors was made, and, though not brought into the transcript, it was a part of the record. 36 Ark. 484; 38 Ark. 477. Even if they were not citizens, only the United States could take advantage of that fact. Barringer & Adams, 202; 51 F. 338; 152 U.S. 505. Proof of citizenship of appellee was all that was necessary. 1 Snyder on Mines, p. 222. Proof that one has performed acts of citizenship is sufficient. 1 Snyder on Mines, § 256 and authorities cited. Marriage of one of the locators to a citizen was sufficient to establish her citizenship. Kirby's Digest, § 12; 54 F. 617; 50 F. 310.

3. In the absence of a statute regulating the manner of locating mining claims, this court will look to the requirements of the U. S. statutes as to what acts are necessary to constitute an appropriation of...