McIntosh v. Price

• Decision Date: 02 February 1903
• Docket Number: 856.
• Citation: 121 F. 716
• Parties: McINTOSH et al. v. PRICE et al.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F. 716

McINTOSH et al. v. PRICE et al.

No. 856.

United States Court of Appeals, Ninth Circuit.

February 2, 1903

Thompson Murane & Thompson and Chas. J. Pence, for plaintiffs in error.

Gordon Hall and Edward J. Hill, for defendants in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

This is an action of ejectment brought by the defendants in error to recover the possession of a strip of mining ground 18 feet wide at one end, 29 feet at the other, and 1,061 feet long. This land was located as a placer mining claim on August 27 1900, by E. G. gould, the grantor of the plaintiffs in error and was again located on October 26, 1901, by Gould and his grantees. The defendants in error asserted the right to possess said strip by virtue of a location made on May 29 1899, by Thorulf Kjelsberg, of a placer claim purporting to be, both by the notice of location and by the recorder's certificate, 1,820 feet in length and 660 feet in width, but which in fact was so staked upon the ground as to include a tract 1,061 feet long by 770 feet in width, and by virtue of a location made by Magnus Kjelsberg, the brother of Thorulf, on August 13, 1900, purporting by the notice and the recorded certificate to include a tract 1,320 feet long and 660 feet wide, but so staked upon the ground as to mark a tract 1,061 feet long and 671.9 feet wide at one end, and 689 feet wide at the other. These locations were attempted to be made under local mining rules and regulations, which prescribed that a placer location should be 1,320 feet in length by 660 feet in width. As marked upon the ground by the boundary stakes of the second location, the claim was wider than the prescribed 660 feet by about 18 feet at one end and 29 feet at the other. It was this excess over the prescribed width that the plaintiffs in error and their grantor subsequently located, claiming that as to that portion of the claim located by the Kjelsbergs their location was void. The case was tried before the court without a jury. The court made full findings of the facts, including therein the facts above cited, and in addition thereto found that both Thorulf and Magnus Kjelsberg duly staked their claim, and prior to August 17, 1900, made valuable discoveries of gold thereon, and that, at the time of the location made by E. G. Gould, Thorulf Kjelsberg, by his agents and associates, was actually engaged in working, excavating, digging, and rocking gold in that part of the Kjelsberg location which is within the boundaries of the ground in controversy. It is earnestly contended by the plaintiffs in error that this finding is unsupported by the evidence, but the fact so found was testified to by Magnus Kjelsberg, and the findings of the court upon the facts stand as the verdict of a jury when reviewed in an appellate court. Empire State-Idaho M. & D. Co. v. Bunker Hill & S.M. Co., 52 C.C.A. 219, 114 F. 417, and cases there cited.

The principal questions involved on the review of the case in this court are: First, was the Kjelsberg location void as to all ground therein included in excess of the width of 660 feet? And, second, if it was void as to such excess, could a subsequent locator enter upon that part of the claim of which the defendants in error were in the possession and from which they were actually engaged in extracting the gold, and make a valid location thereof? The local mining rules so referred to give to a locator of a placer claim 20 acres, but require that it be located 1,320 feet in length and 660 feet in width. Both Kjelsbergs by their locations professed to comply with this rule, but in fact deviated therefrom by staking a claim shorter and wider than the rule prescribed, but containing within the boundaries so marked less than the allotted 20 acres. Much of the discussion upon the review of the case in this court refers to the interesting question whether such a local mining rule is mandatory, and whether the failure to comply therewith as to the prescribed width renders the Kjelsberg location void as to the excess in width. We do not find it necessary to determine that question, as we are very clearly of the opinion that if any portion of the ground located by the Kjelsbergs was subject to relocation, as being in excess of the permitted width, the owners thereof in possession, under the circumstances found by the trial court, could not be deprived of the right to select the portion thereof which they would elect to hold and that another locator had no right to enter upon that portion of the claim in which they were working, and which was the valuable portion thereof, and oust them from...