Appeal
from district court, Silver Bow county; John J. McHatton
Judge.
Action
by James P. Mattingly and others against Leonard Lewisohn to
determine the right of possession to a quartz lode mining
claim. From a judgment for plaintiffs, and an order denying a
new trial, defendant appeals. Affirmed.
Statement
of the case by HARWOOD, J.:
Among
other assignments, appellant's counsel criticise as
eroneous certain instructions, numbered 1, 3, 4, 5, and 6
given by the court to the jury, as follows: "(1) A
location of a quartz lode claim is made by complying with the
requirements of the laws of the United States and of the
territory or state of Montana, and such requirements are as
follows, to wit: There must be discovered within the limits
of the claim located a vein or crevice of quartz or other
rock in place, bearing gold, silver, or other precious
metals, and the vein, or crevice must have at least one
well-defined wall rock. The location must be so well and
distinctly marked on the ground that its boundaries can be
readily traced. And within twenty days after making the
location the locator or locators must file and have recorded
in the office of the county recorder of the county in which
the claim is situated, a declaratory statement, on oath
containing the names of the locators, the date of the
location, and such a description of the claim located, with
reference to such natural objects or permanent monuments, as
will identify the claim. The claim located may equal, but
cannot exceed, 1,500 feet in length along the vein, and 300
feet in width on each side of the center of the vein. The
locator or locators must be citizens of the United States, or
must have declared their intention to become such."
"(3) It is not alleged or pleaded, on the part of the
defendant, that the plaintiffs have forfeited the ground in
controversy in this action by reason of a failure to perform
the labor or make the improvements required by law, and there
is no necessity for plaintiffs to prove such representation;
but if you find the ground in controversy herein was on the
1st day of January, 1885, vacant and unappropriaterd ground,
and that the plaintiffs, or those under whom the plaintiffs
claim, located the same according to the law as given you in
the instruction herein, then you will inquire no further, but
will find a verdict for the plaintiffs. (4) The plaintiffs in
this action deny the location of the Miners' Union lode
claim, and also allege that the said claim, if it ever was
located, has been forfeited by a failure on the part of the
defendants and their predecessors in interest to perform the
labor or make the improvements required by law during the
year 1884; and if the jury find from the evidence, either
that there was no location of the Miners' Union lode
claim, or that the same was forfeited for failure to perform
the labor or make the improvements required by law, then, in
either case, the ground would be subject to location, and if
the plaintiffs complied with the requirements of the law, as
hereinbefore given, in making their location, then the jury
are instructed to find for the plaintiffs. (5) If you find
from the evidence that, although Fisher may have made a valid
location of the said Miners' Union claim, but he or his
successors in interest failed to do one hundred dollars'
worth of improvements, on the said claim in the year of 1884,
the ground was subject to relocation on the 1st day of
January, 1885. It is claimed, and there is no dispute, that
seventy-five dollars' worth of work was done on the said
claim by Jacobs, and the controversy between the respective
parties is as to whether or not Carroll, or either of them,
did the other twenty-five dollars' worth of work, upon
which point there is a conflict of testimony, and you will be
the exclusive judges of the weight to be given to the
testimony of the respective witnesses, and their credibility,
as well as their means of knowledge; and that if you find
that there was not twenty-five dollars' worth of work
done by the said Carroll, or, in other words, if you find
that there was not one hundred dollars' worth of work
done by all the claimants of the said Miners' Union lode
claim, you will find that the said claimants forfeited all
right and title to the same, and the said ground was on the
1st day of January, 1885, subject to relocation, and if there
was any amount less than one hundred dollars' worth done,
in the eye of the law, it occupies the same position, and
their claim was forfeited, as much so as if they had done
none at all, for the law says that there shall be one hundred
dollars' worth of work done, or improvements made, on a
claim, for each year. (6) In determining the amount of work
done upon a claim, or improvements put thereon for the
purpose of representation, the test is as to the reasonable
value of the said work or improvements, not what was paid for
it, or what the contract price was, but it depends entirely
upon whether or not the said work or improvements were
reasonably worth the said sum of one hundred dollars."
The other facts are stated in the opinion.
HARWOOD
J.
This
action was instituted pursuant to the provisions of section
2326, Rev. St. U.S., to determine the right of possession to
a certain quartz lode mining claim, situate in Silver Bow
county, Mont., as between appellant, who was applicant for a
patent thereto under the name of "Miners' Union Lode
Mining Claim," and the respondents, who were the adverse
claimants, with others, of said ground, under a location
known as the "Great Eastern Quartz Lode Mining
Claim." The case has been pending since 1886, and the
present appeal is from the judgment rendered as the result of
a second trial, wherein it was determined, for the second
time, that appellant, Lewisohn, failed to establish title and
right of possession to said ground, and also an appeal from
an order overruling his motion for new trial.
The
first and most important question presented on this appeal is
as to the effect of the first trial, the judgment, and
reversal of that judgment by the supreme court on
a former appeal. The report of the consideration and
determination of the case on the former appeal is found in 8
Mont. 259, 19 P. 310, and, as there shown, the first trial
resulted in findings to the effect that neither party had
established a title to the ground in dispute, and judgment
was pronounced accordingly. Defendant prosecuted an appeal
from the whole of said judgment, assigning certain errors
alleged to have been committed by the court below in the
trial, by way of ruling out certain evidence offered by
defendant, and also assigning and urging the proposition that
the complaint, as originally filed, failed to state facts
sufficient to constitute a cause of action, which last
objection was also raised in the court below by demurrer to
the complaint. The supreme court considered, as appears from
the opinion cited supra, but one question on that appeal,
namely, whether or not the complaint was sufficient, and held
that it was not. And thereupon reversed the judgment and
remanded the case, with direction to the trial court to
sustain the demurrer to the complaint. Thereafter, on return
of remittitur, plaintiffs filed an amended...
