McCowan v. McLay

• Decision Date: 03 June 1895
• Citation: 40 P. 602,16 Mont. 234
• Parties: McCOWAN v. McLAY.
• Court: Montana Supreme Court

40 P. 602

16 Mont. 234

McCOWAN v. McLAY.

Supreme Court of Montana

June 3, 1895

Appeal from district court, Meagher county; Frank Henry, Judge.

Action by Duncan McCowan against Edward McLay to determine adverse claims to mining premises. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

McConnell Clayberg & Gunn, for appellant.

Toole & Wallace, for respondent.

DE WITT, J.

The defendant applied for a United States patent for certain mining premises. The plaintiff filed his adverse claim in the United States land office, and commenced this action, which is commonly known as an "adverse suit." Davidson v. Bordeaux, 15 Mont. --, 38 P. 1075, and cases cited; Anthony v. Jillson, 83 Cal. 296, 23 P 419. A demurrer to plaintiff's complaint was sustained and judgment rendered and entered for defendant. Plaintiff appeals.

The plaintiff depended upon the location of the Yellow Jacket claim. He set out the location notice of this claim, and the affidavit verifying the same, in his complaint. One point raised by the demurrer was that the verification of the location notice was insufficient. Our statute requires that the notice of location of a mining claim shall be on oath. Gen. Laws, div. 5, § 1477. That this requirement of our statute is within the power of the state legislature was doubted in Wenner v. McNulty, 7 Mont. 30, 14 P. 643 but was fully affirmed in O'Donnell v. Glenn, 8 Mont. 248, 19 P. 302, which ruling was afterwards followed as the law of the case on the second appeal of O'Donnell v. Glenn, 9 Mont. 452, 23 P. 1018, and was followed as stare decisis in Metcalf v. Prescott, 10 Mont. 284 25 P. 1037. The Ninth circuit court of appeals of the United States recently encountered this question in Preston v. Hunter (not yet officially reported), 67 F. --, but passed it without an expression of opinion. We shall not now disturb the law of this jurisdiction in this respect.

The question then presents itself, was the verification of the Yellow Jacket notice of location insufficient? It is as follows: "Territory of Montana, County of Meagher --ss John C. O'Brien, James L. Neihart, and Samuel R. Harley, being duly and severally sworn, depose and say that they are of lawful age, and citizens of the United States; that they have heard read the above notice of location of fifteen hundred linear feet on the Yellow Jacket lode; that the description of said lode as therein given is true and correct; that they have in every respect fully complied with the requirements of chapter 6 of title 32 of the Revised Statutes of the United States, and the local customs and laws regulating mining locations, and that they are three of the within-named locators." (Subscribed and sworn to.) Does this affidavit verify the notice? Is the notice a declaratory statement upon oath? Gen. Laws, § 1477; Metcalf v. Prescott, supra. The notice is a declaratory statement, but the question is, do the locators, or any of them, make the statement under oath? We are of opinion that they do not. They make only one portion of it under oath, and that is that the description of the lode, as given in the notice, is true and correct. There is no oath that any portion of the location notice is true, except this one item, and therefore the location notice is not verified, except as to this one item, unless it can be held that the words, "description of the lode," include the whole notice. But we are of opinion that such construction of these words cannot obtain. The meaning of the words, "description of the lode," we think, is entirely clear, Webst. Int. Dict. defines the word "description" as follows: "A sketch or account of anything in words; a portraiture or representation in language." The same authority gives among the synonyms of this word: "Account"; "definition"; "recital"; "narration"; "explanation"; "representation." The Century Dictionary, among other definitions of the word, has the following: "Representation by visible lines, marks, colors, etc. The act of representing a thing by words or signs, or the account or writing containing such representation. A statement designed to make known the appearance, nature, attributes, accidents or incidents of anything, as a description of a house or battle." Furthermore, the word "description" in conveyances of real estate and in legal instruments in writing generally has an established meaning. It is the language which depicts the thing under consideration. See Anderson's Law Dictionary, under the word "Description." See, also, Black's Law Dictionary, under the same head, where the word "description" is defined as: "(1) A delineation or account of a particular subject by a recital of its characteristic accidents and qualities. (2) A written enumeration of items composing an estate, or of its condition, or of titles or documents; like an inventory, but with more particularity, and without involving the idea of an appraisement. (3) An exact written account of an article, mechanical device, or process which is the subject of an application for a patent. (4) A method of pointing out a particular person by referring to his relationship to some other person or his character, as an officer, trustee, executor, etc. (5) That part of a conveyance, advertisement of sale, etc., which identifies the land intended to be affected." We are therefore of opinion that the word "description," as used in the affidavit under consideration, meant the delineation or account of the Yellow Jacket mining claim by the recital of its metes and bounds, or courses and distances, and its geographical position. See definition from Black, Law Dict., supra. Counsel for appellant contend for a broader definition or use of the word "description" as it appears in the affidavit and in the statute (section 1477). They argue that the words, "description of the lode," refer to the whole location notice, and that when it is affirmed on oath that the "description" is correct it is thereby affirmed that the whole notice is true; that is to say, that the whole location notice is the description of the lode. We cannot consent to this construction. It does violence to all ideas of the meaning of the word "description." We are of opinion that the word is not used in section 1477 in the sense that counsel claims, but that it is employed by the lawmakers in its ordinary and well-known signification. Section 1477 provides that any person or persons "who shall hereafter discover any mining claim *** shall, within twenty days thereafter, make and file for record in the office of the recorder of the county in which said discovery or location is made, a declaratory statement thereof, in writing, on oath, *** describing said claim, in the manner provided by the laws of the United States." The locator, under this statute, was to file in the county in which said location is made a declaratory statement thereof. The word "thereof," as here used, means the declaratory statement of said discovery or location. The declaratory statement on oath must be of the discovery or location, and not simply of the description of the claim. This language seems to be clear, and the intent seems to be plain. A few lines further in the statute it is also provided that the declaratory statement shall also describe such claim in the manner provided by the laws of the United States. Therefore it appears that the declaratory statement shall be of the discovery or location, as well as the description of the claim, and it would be unreasonable to hold that a person taking oath that the description of a claim was correct was thereby taking oath that all other matters set up in the notice of location or declaratory statement were also true. It therefore follows that the location notice of Yellow Jacket lode, being verified as to only one of its items, was not a declaratory statement on an oath of the discovery or location of a claim. It is observed that the affidavit further states that the locators have fully complied with...