McKay v. McDougall
| Decision Date | 15 April 1901 |
| Parties | McKAY v. McDOUGALL. |
| Court | Montana Supreme Court |
Appeal from district court, Madison county;M. H. Parker, Judge.
Action by Alexander McKay against William J. McDougall. From a judgment in favor of defendant, plaintiff appeals. Reversed.
Lew L Callaway, for appellant.
W. A Clark, for respondent.
Action by plaintiff for damages for alleged trespasses upon the Shoo Fly Gulch placer claim, situate in Madison county, for a perpetual injunction restraining defendant from further trespassing thereon, and for a decree quieting plaintiff's title. The defendant denies plaintiff's title, sets up a counterclaim alleging title in himself, and demands judgment for damages and for injunction. The opinion rendered on a former appeal, reversing a judgment in favor of the defendant herein and remanding the cause, is reported in 19 Mont., at page 488, 48 P. 988. The pleadings having been amended to conform to the suggestions made by this court in that opinion, a trial was had upon the merits, resulting in a verdict for the defendant for $1,800. Judgment was entered for this amount and for costs, and also perpetually enjoining the plaintiff from asserting any claim to the ground in controversy. From this judgment and an order denying a motion for a new trial, plaintiff has appealed.
At the trial the plaintiff rested his claim of title upon a location of the ground in controversy as the Shoo Fly Gulch placer claim, made by himself and one Thurgood in July, 1877. A notice or declaratory statement of this location was filed for record with the clerk of Madison county on July 22d. It was signed by both locators, but was not verified. Plaintiff thereafter, by mesne conveyances, acquired Thurgood's interest. The defendant, denying any title in plaintiff claimed title under a location called the "Humbug Placer," made on July 22, 1893, a notice of which was recorded on August 9, 1893, and an amended location made on September 1, 1894. The three contentions made at the trial were upon the questions whether the ground in controversy was subject to location at the time plaintiff's location was made, whether the plaintiff had failed to represent the Shoo Fly Gulch claim during the year 1892, and whether the plaintiff resumed work before defendant located the ground as the Humbug Placer, either by what he did on the ground in 1893, or by his amended location made in 1894. All these questions were fairly within the issues made by the pleadings, as appears from a synopsis of them set out in the statement preceding the opinion on the former appeal, and the integrity of the judgment of the district court turns upon the correctness of the instructions submitted to the jury upon these issues.
1. Evidence was introduced tending to show that the ground in controversy was located as a placer claim by one Sholes and others in June, 1876. Sholes himself, who testified in the case, stated that he saw the plaintiff upon the ground early in 1877, but that as his time had not expired he was not uneasy. In another place in his testimony he says that while he and his associates worked in the neighboring gulches until 1880, when he sold out, they never did any work upon the ground claimed by plaintiff in the way of mining, except "to represent the gulch." From other evidence in the case it appeared that there was not water enough in the gulch for mining purposes, and that all the work done there subsequently was by means of water brought in from other sources. There was also some evidence from which it might be inferred that work had been done upon the ground in 1869, but that none had been done thereafter until plaintiff made his location. There is no other evidence in the record that Sholes and his associates did any work upon the claim at any time after the date of their location. Upon this evidence the court, after stating correctly to the jury the steps necessary to make a valid location of a placer claim in 1876 instructed them as follows: "And if you find from the evidence that the said Clark M. Sholes and his associates in June, 1876, did make a discovery of placer gold on the unoccupied lands of the United States, and on the premises in controversy, and did make a location thereof, and mark the boundaries thereof so that they could be readily traced, then the court instructs you that as a matter of law the said Sholes and his associates were the owners of and entitled to the possession of said claim against all the world, and were in law in possession thereof, so long as they complied with the laws of the United States; and any location placed thereon or attempted to be put upon said premises by the plaintiff while such prior location was valid and subsisting was a nullity and conferred no rights upon plaintiff, and he would be a trespasser, under the law, unless you further believe from the evidence that the said Clark M. Sholes and his associates abandoned said placer claim and left the same without any intention of returning thereto prior to July, 1877, when the plaintiff, McKay, claims to have made his location thereof." Upon the facts in evidence before the jury upon this branch of the case, this instruction was clearly misleading. For, while failure to represent a mining claim, with other facts showing intention, may leave room for an inference of abandonment by the locator, there may be a forfeiture of all right by the mere failure where the intention to abandon does not exist. Abandonment, as applied to mining claims held by location merely, takes place only when the locator voluntarily leaves his claim to be appropriated by the next comer, without any intention to retake or claim it again, and regardless of what may become of it in the future. A forfeiture takes place by operation of law, without regard to the intention of the appropriator, whenever he neglects to preserve his right by complying with the conditions imposed by law; that is, to make the required annual expenditure upon the claim within the time allowed. The former involves an inquiry of fact as to the intention as well as the act. In regard to the latter the inquiry is, has the required expenditure been made as the law commands? We are of the opinion that while there is, perhaps, sufficient evidence upon which to base an inference that Sholes and his associates had abandoned their claim at the time plaintiff's location was made, the question whether they had forfeited their rights by failure to represent the claim before that time was also fairly presented, and should have been submitted to the jury under proper instructions. The paragraph quoted is correct upon the question of abandonment, this term being clearly defined in a following paragraph; but it should have gone further, and submitted, also, the question of forfeiture. The logical effect of it is to exclude this question from the consideration of the jury altogether. In this connection the court should also have laid down the correct rule as to the time within which Sholes and his associates were obliged to do their annual representation work in order to save a forfeiture. Under the act of congress of May, 10, 1872 (17 Stat. 92, § 5), the year within which the required expenditure must be made upon all claims theretofore or thereafter located was computed from the date of the respective locations. As to claims located prior to the passage of that act the rule was changed by acts of congress of March 1, 1873, and June 6, 1874, respectively (17 Stat. 483; 18 Stat. 61), so that after January 1, 1875, the year was computed from the 1st day of January in each year. As to claims located after May 10, 1872, the rule remained as provided in the act of that date until the act of congress of January 22, 1880 (21 Stat. 61), which so amended the act of May 10, 1872, as to permit the time of representation to be computed from the 1st day of January "succeeding the date of location," and the provision was made applicable to all claims, whether located before or after the amending act. Lindl. Mines, §...
To continue reading
Request your trial