McKirahan v. Gold King Mining Co.

• Citation: 39 S.D. 535,165 N.W. 542
• Decision Date: 13 December 1917
• Docket Number: 4170
• Parties: ANDERSON McKIRAHAN, Plaintiff and appellant, v. GOLD KING MINING COMPANY, Defendant and Respondent.
• Court: South Dakota Supreme Court

39 S.D. 535

165 N.W. 542

ANDERSON McKIRAHAN, Plaintiff and appellant,

v.

GOLD KING MINING COMPANY, Defendant and Respondent. South Dakota Supreme Court Appeal from Circuit Court, Pennington County, SD Hon. Levi McGee, Judge #4170--Affirmed Schrader & Lewis Attorneys for Appellant. Buell & Denu Attorneys for Respondent. Opinion filed December 13, 1917

POLLEY, J.

This action was brought to quiet title to a group of six unpatented mining claims, known as the Gordelia group of claims, and situated in Pennington county. During the year 1914, and for some time prior thereto, respondent was in possession of said mining ground, claiming to be the owner thereof. In 1915, appellant, claiming that the assessment work required by section 4620, U. S. Comp. Stat. 1916 (section 2324, Rev. Stat. U. S. 1878, had not been done for the year 1914, went upon and attempted to relocate said mining ground under the names of the Giant No. 1, 2, 3, and 4 lodes. He thereupon brought this action against the respondent to quiet the title to the said Giant claims in himself. The cause was tried without a jury, and at the termination of the trial the court found as a fact that the said Gordelia group or claims were valid subsisting mining locations, that defendant is the owner thereof, that a sufficient amount of assessment work had been performed thereon during the year 1914, and that the attempted relocation of said ground by the appellant was null and void. Decree was entered accordingly, and from said decree, and an order overruling his motion for a new trial, plaintiff appeals.

Appellant's motion for a new trial is based upon three grounds: First, insufficiency of the evidence to show performance of the assessment work for the year 1914; second, irregularity and abuse of discretion upon the part of the trial court in making and filing its decision and decree; and, third, newly discovered evidence.

The evidence on the part of respondent relative to the assessment work of 1914 tends to show that said work was performed in a shaft situated on one of the Gordelia claims, that said shaft was about 7x10 feet in size, that the word consisted in sinking said shaft 20 feet, and that the sinking thereof was worth $35 to $60 per foot. On the other hand, the testimony oh bhalf of appellant was to the effect that said work was not worth more than $15 to $25 per foot. Upon this evidence the trial court found the reasonable value of said work to be $35 per foot, aggregating $700 worth of work for the six claims. This finding of fact by the trial court, based upon conflicting evidence, as it is, will not b disturbed by this court, unless it appears that said finding is clearly against the weight of the evidence.

To show that the work was not worth as much as it was found to be by the court, appellant introduced evidence showing the number of men that had been employed to do said work, the length of time they were engaged, the amount of wages they received, and the amount and cost of material, etc., that was used. By adopting this method of computing value, appellant showed that the work performed by respondent did not amount to more than $77.11 per claim for the year 1914. But this is not the correct method of computing the value of assessment work on a mining claim. The true test is the actual value of the improvement to the mine. Evidence of the cost of labor, material, etc., is competent as tending to show the good faith of the party making the expenditure, but it is not conclusive upon the question of the value of such improvement. Stolp v. Treasury Gold Mn. Co., 38 Wash. 619, 80 Pac. 817; Lindley on Mines (3d. Ed.) 635; McCormick v. Parriott, 33 Colo. 382, 80 Pac. 1044.

But it is contended by appellant that, conceding the above method of computing the value of assessment work is correct, the evidence does not show the work to be sufficient, for the reason that respondent owned other adjoining claims upon which said assessment work must be apportioned, and that when so apportioned, said work, at the value placed thereon by the court, did not equal $100 for each of the said claims. It appears from the evidence that respondent owns two groups of claims—one known as the Gordelia, and the other as the Standard, group. The Gordelia group consists of a compact tract of ground 1,500 feet in width by 3,000 feet in length. Two of the Standard claims adjoin the Gordelia group on the east, but it does not follow as a matter of law from such fact that,...