Metcalf v. Prescott
| Decision Date | 07 January 1891 |
| Citation | 25 P. 1037,10 Mont. 283 |
| Parties | METCALF et al. v. PRESCOTT et al. |
| Court | Montana Supreme Court |
Appeal from district court, Jefferson county; THOMAS J. GALBRAITH Judge.
The action is a contest between claimants of mining ground on the public domain of the United States. The plaintiffs below respondents here, relied upon their claims of the Ida May and Corbett lodes. They were contested by the defendants appellants here, with their New Brunswick and Crucible lodes. The gist of the case was reached by the partial sustaining of a demurrer to the answer, and a motion to strike out a portion of the same. Therein the court settled propositions hereinafter stated, and the trial following was pro forma. Four points are argued by counsel, and the facts upon which they are presented are:
(1) The location notice of the Crucible lode states, among other things, '. As to this description the defendants plead, in their answer: "That the corner No. 4 of said survey No. 889, referred to in the said Crucible notice of location as being about a mile distant therefrom, lies wholly within the said county of Jefferson, is a fixed, definite and permanent monument, and, taking the said notice of location, and starting at the initial point named, from the calls of said notice, one would of necessity, and without uncertainty, find the said claim in the county of Jefferson." It further appears from the answer that the notice of location was duly filed in the office of the county recorder of Jefferson county, and not of Lewis and Clarke. The court held that this location notice was not competent as not entitled to record in Jefferson county, by reason of the statement in the notice that the claim was situated in Lewis and Clarke county; and also that the allegation and proposed proof that said corner No. 4 shows the claim to be in Jefferson county was incompetent. This is assigned as error.
(2) The location notice of the New Brunswick shows these facts: The notice itself is signed by the locators. Then appears an unsigned affidavit, as follows: Said Charles K. Cole was one of the locators, as appears upon the notice. The notice was recorded in Jefferson county. It further appears by a verment of the answer "that said Charles K. Cole, the person named as affiant in the affidavit attached to said notice of location, in truth and in fact swore to the same before a notary public (Edgerton) therein named prior to the record thereof, and subsequent to Jan. 2, 1885." The district court held that this notice, not being sworn to, was not entitled to record, and defendants could not claim title there-under. This conclusion must have been reached by taking the face of the affidavit alone, and disregarding the aliunde matter pleaded in the answer. This is assigned as error.
(3) The New Brunswick was located January 2, 1885, and recorded February 5, 1885. The record was more than 20 days after the location. But it appears "that between January 2, 1885, and February 5, 1885, no person whomsoever occupied, possessed, or endeavored to assume to occupy or possess the claim or any part or portion of the said New Brunswick lode, other than the said locators above named." Was the record, under these circumstances, made in time?
(4) The Ida May location notice states: The Corbett location notice states: "This lode is situated in Frowner unorganized mining district, Jefferson county, territory of Montana; and the adjoining claim is the Leslie on the north." The point is made that these descriptions are not "by reference to some natural object or permanent monument as will identify the claim." Rev. St. U.S. § 2324. An opinion upon these two last points is not required for decision of the case; but they will be treated, for the reason set forth in the opinion below.
Toole & Wallace, for appellants.
Comley & Foote and Shober & Rowe, for respondents.
DE WITT, J., (after stating the facts as above.)
We will discuss the points in the order outlined in the foregoing statement of the case.
1. The Crucible claim was situated in Jefferson county. Its notice of location was recorded in Jefferson county. Its location description names corner No. 4 of the survey No. 889, which corner defendant alleges lies wholly within Jefferson county and further alleges that the described courses and distances, when run by reference to this survey corner No. 4, locate the claim wholly in Jefferson county. It is not for the court to say, from an inspection of the location notice, whether or not this survey corner was a permanent monument. This is a matter for proof. Russell v. Chumasero, 4 Mont. 317, 1 P. 713; O'Donnell v. Glenn, 8 Mont. 248, 19 P. 302. Then, if defendants had been allowed to attempt to prove this as they had the right to do, and had succeeded, they would have been in this position: They would have shown where their claim was by reference to a permanent monument. They would have shown thereby that it was in Jefferson county, the county in which they had properly made their record. Are they to lose their claim because they stated in their notice that the premises were in Lewis and Clarke county? The statement of the county, in the notice, is not required by law; nor does it appear that it was required by any rules of miners consistent with the laws of the United States or the then territory; nor is it necessary in this case, in order to find or identify the claim. It was surplusage. Does this surplusage vitiate an otherwise good description, and a legal recording? Falsa demonstratio non nocet. See cases in 2 Pars. Cont. (5th Ed.) 555 note d., and page 514. The rule applies the more forcibly in a case, as that before us, where the false description is surplusage. "So much of the description as is false is rejected, and the instrument will take effect, if a sufficient description remains to ascertain its application." 1 Greenl. Ev.§ 301, and cases cited; also Wade, Notice, §§ 184, 185; Partridge v. Smith, 2 Biss. 183; Worthington v. Hylyer, 4 Mass. 196; Jackson v. Loomis, 18 Johns. 81; Reamer v. Nesmith, 34 Cal. 624. There can be no doubt that, if defendants be successful in proving what they allege to be the fact as to a permanent monument, the description is sufficient, and the error in stating the county, under the circumstances of this case, is harmless. We are satisfied that the district court erred. The notice of location is competent, and proof whether the corner No. 4 of survey No. 889 be a permanent monument is competent. Upon the subject of description of mining claims, see Gamer v. Glenn, 8 Mont. 371, 20 P. 654; Flavin v. Mattingly, 8 Mont. 246, 19 P. 384; Upton v. Larkin, 7 Mont. 449, 17 P. 728; ...
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