Migeon v. Montana Cent. Ry. Co.

• Decision Date: 06 October 1896
• Docket Number: 276.
• Citation: 77 F. 249
• Parties: MIGEON et al. v. MONTANA CENT. RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

77 F. 249

MIGEON et al. v. MONTANA CENT. RY. CO.

No. 276.

United States Court of Appeals, Ninth Circuit.

October 6, 1896

George A. Clark, for appellants.

A. J Shores, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This is a suit in equity, brought by the appellee to determine the adverse claim of appellants to two certain tracts of land, or mining ground, in area 3.67 and 9.60 acres, respectively situated near Butte, in Silver Bow county, Mont. From the mass of testimony introduced by the respective parties we glean the following facts: On July 2, 1877, Charles Colbert located a quartz lode upon the premises in dispute, under the name of the 'Morning Star Lode Mining Claim,' containing 1,500 feet in length,-- 750 feet east and 750 feet west of the point of discovery,-- and 300 feet wide on each side of the center of the vein or lode. The discovery point was about 20 feet east of the east boundary of the Noyes placer claims, hereinafter mentioned. Upon the Morning Star a shaft was sunk at the discovery point in 1877, about 14 feet deep, which disclosed rock of a brown and green stained color, containing mineral, viz. gold silver, and copper. About 10 tons of ore was taken out from this shaft, and some of it still remains upon the surface. There is some conflict in the testimony as to the value of the ore found in this shaft, but the decided weight and preponderance of the evidence is to the effect that it was not of sufficient value at that time to justify exploitation and the expenditure of time, labor, and money. The ground embraced in the lode location was full of stratas and seams of rock; but, in the opinion of some of the witnesses, it would not be classified as a vein among mining men or prospectors. It was valuable for surface mining, and was profitably worked as placer ground. Another shaft was sunk in 1878, about 75 feet west of the discovery point, about 8 feet deep, which disclosed the same character of material as the discovery shaft. Sufficient work was done upon the claim to hold it for the years 1877 and 1878. In April, 1879, the claim was sold to Valentine Kropf. There is some uncertainty as to the date of the sale. Colbert testified: 'I would not exactly be certain when I sold it,-- whether it was in April, 1879, or 1880. ' Kropf said: 'If I remember, it was in the summer. I don't remember the year,-- '77 or '78. It might have been in '79.' Prior to the sale, the claim was jumped by other parties; but Colbert, the original locator, and the subsequent locators, divided their interests equally. Colbert sold his half interest to Kropf for $75. The other half was owned by H. McKinstry. The same year, and shortly after the sale, Kropf and McKinstry quit work on the claim, because there was too much water in the shaft, and have never done any more work thereon, and never bothered themselves with the claim any more. To quote from the testimony of Mr. Kropf:

'Q. After you had worked there several days, you quit? A. Yes, sir. Q. What was the reason for that? A. On account we could not get any further. There was too much water for us. Q. Did you ever do any work on that claim after that? A. No, sir. Q. And you never did any work on the second discovery hole? A. No, sir. * * * Q. What did you do with it afterwards? * * * A. I never bothered any more with it. * * * Q. Did you abandon it, or what? A. I guess we quit it. * * * Q. How long did you and he (McKinstry) remain in partnership after he and you quit work? A. Just when we quit work. We quit, and then I told him I would throw it up. * * * Q. Do you remember of ever having seen any one, after that, doing any work at either of these holes? A. No, sir. Q. Do you remember of ever having seen any location notice after that on this ground? A. No, sir; I never bothered myself about it.'

On October 15, 1878, John Noyes and others made a placer location in the vicinity of and including the west 730 feet of the Morning Star lode claim, and thereafter, on December 17, 1878, made application for a patent therefor. On July 25, 1880, a patent was issued for said claims. On January 1, 1882, H. McKinstry located the Childe Harold quartz lode claim at the discovery point of the Morning Star claim, extending 1,450 feet west and 50 feet east of said point, and 300 feet on each side of the center of the vein. Appellants acquired the interest of McKinstry in the Childe Harold location June 20, 1885, and claim to have ever since represented the claim as required by law. On July 25, 1887, appellee acquired the title to the two tracts of land in controversy in this suit from the grantees of John Noyes, the locator of the placer claims. On September 26, 1887, appellants made application for a patent to the Childe Harold lode. Appellee filed an adverse claim, and on December 10, 1887, commenced this suit in the territorial court, and under the provisions of the act of congress admitting Montana as a state, the suit was removed to the circuit court of the United States. The Noyes placer claims, mineral entry No. 511, and the Childe Harold lode claim embrace within their boundaries both tracts of land. The 9.60-acre tract is within the boundaries of the Noyes placer claim and the Morning Star lode claim.

From the foregoing facts it will readily be seen that the controlling question to be determined herein is whether there was a 'known lode' within the limits of the ground in controversy at the time the owners of the Noyes placer claims made application for a patent, on December 17, 1878, within the meaning of section 2333, Rev.St.U.S. In its decree the trial court found the following facts:

'That the plaintiff (appellee) is the owner of, in the possession of, and entitled to the possession of, all and singular the premises set out and described in the complaint herein; * * * that said premises constitute and are a portion of mineral entry No. 511, for which application for patent from the United States was duly made upon December 17, 1878, and for which a United States patent was duly issued to the applicants therefor on July 28, 1880; that at the time said application for patent there was no lode of quartz containing gold, silver, copper, or other metals known to exist within the exterior boundaries of said mineral entry No. 511; that all and singular the averments of plaintiff's (appellee's) complaint and replication herein are true, and that the averments of the answer of the defendants herein inconsistent therewith are not true; and that plaintiff is entitled to a decree as prayed for in its complaint herein.'

Upon these findings the court granted the relief prayed for in the complaint.

There are 31 distinct specifications of error presented by appellants. It is evident, by a brief reference thereto, that many of them cannot be reviewed by this court, and that it is unnecessary to specifically review others. There is a footnote in the transcript, which states that certain depositions were not read at the trial, and that there was an understanding between counsel and the court that exceptions would be allowed to the rulings that might be made upon the objections noticed in the deposition; but there is nothing in the record showing that any rulings were made upon any of these objections.

The specifications of error from No. 1 to 10, inclusive, are based upon imaginary rulings of the court upon the objections noted in the depositions; the assignments being that the court erred 'in rejecting, if it did reject it,' etc. Appellate courts are too busily engaged in answering questions which relate to material matters that are properly presented to waste any time in attempting to review irrelevant specifications of imaginary errors.

The specifications from No. 11 to 20, inclusive, refer to alleged errors committed by the court in admitting or excluding testimony at the trial against the objection of appellants. In the consideration of such specifications of error the general rule is that, in equity suits tried before the judge without a jury, the appellate court ought not to reverse the case merely upon the ground that the judge received irrelevant testimony, or that he rejected testimony that was admissible, where, upon all the facts and circumstances of the case, it is clearly apparent that the result would not have been different if the testimony objected to had been rejected in the one case or received in the other. Bank v. Greenhood (Mont.) 41 P. 251, 267, and authorities there cited; Scroggin v. Johnston, 45 Neb. 714, 64 N.W. 236, 238, and authorities there cited; Holmes v. State (Ala.) 18 So. 529. The controlling inquiry in such cases is whether there is sufficient competent evidence in the record to sustain the decree. Grayson v. Lynch, 163 U.S. 468, 476, 16 Sup.Ct. 1064, 1067. In Mammoth Min. Co. v. Salt Lake Foundry & Mach. Co., 151 U.S. 447, 451, 14 Sup.Ct. 384, 386, the court, in considering assignments of error in the admission of evidence, after quoting the language of the territorial court that: 'These errors are not available in a case in equity, for the chancellor is supposed only to act on proper evidence. There is no question of law involved; only questions of fact; and, if the proper evidence justifies the decree, the judgment ought to be affirmed, and we think it does,'-- said:

'In its assignment of errors here appellant specifies substantially the same exceptions to the admission of evidence, including the overruling of defendants' objections to questions. The evidence thus objected to was cumulative in its character, and not of controlling importance; and, if excluded, it is sufficiently clear that the result would not have been otherwise than it was. All the evidence is in the record, and we

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