Morrison v. Regan

• Decision Date: 04 February 1902
• Citation: 67 P. 955,8 Idaho 291
• Parties: MORRISON v. REGAN
• Court: Idaho Supreme Court

67 P. 955

8 Idaho 291

MORRISON v. REGAN

Supreme Court of Idaho

February 4, 1902

MINING CLAIM - NATURAL OBJECT-PERMANENT MONUMENT.-A description in the notice of location of a mining claim is sufficient, under section 2324 of the Revised Statutes of the United States and section 3102 of the Revised Statutes of Idaho, which describes the claim as located a certain number of feet from another mine, giving the direction, as a mine is a natural object or permanent monument within the meaning of those terms as used in said statutes.

SUFFICIENCY OF LOCATION CERTIFICATE.-A location certificate containing the following description held sufficient under the provisions of said sections 2324 of the Revised Statutes of the United States, and 3102 of the Revised Statutes of Idaho to wit: That the locators "have located six hundred linear feet along this lode or vein of quartz, by three hundred feet on each side of the middle of the vein or lode making six hundred feet in length. This claim, so located, is named the Bullion mine, and is situated in French mining district, Owyhee county, Idaho territory, and is described as follows: Commencing at this stake and notice, which is situated about three hundred feet in a northwesterly direction from the Minnesota mine. This is an extension of the Red Jacket mine, and running thence along the vein or lode in a southerly direction to a similar stake and notice. We, the undersigned, claim six hundred linear feet in a southerly direction from this stake and notice to a similar stake and notice. This claim is six hundred linear feet long."

REJECTION OF LOCATION CERTIFICATE.-It is only where the location certificate fails to make reference to natural objects or permanent monuments sufficient to identify the claim that a court may reject it on that ground.

SUFFICIENCY OF LOCATION NOTICE.-Where it is shown that a mining claim has been located in good faith, if by any reasonable construction the language used in the notice in the description and in referring to natural objects and permanent monuments will impart notice to a subsequent locator, it is sufficient.

LIBERAL CONSTRUCTION.-A liberal construction should be given to descriptions of mining claims and references to natural objects in location certificates.

AMENDMENT OF LOCATION CERTIFICATE.-Erroneous or defective location certificates may be amended under the provisions of section 5 of an act entitled "An act to define the manner of locating lode, quartz and placer claims." (Sess. Laws 1899, p 237.)

EFFECT OF AMENDED LOCATION.-Such amended location relates back to the date of the original location, provided it does not interfere with the existing rights of others at the time when such amendment is made.

APPLICATION OF PROVISO.-The proviso to said section does not apply to amended locations where, by the amendment, the surface boundaries are not changed, or where there is no part of an overlapping claim which has been abandoned taken in by such amended location. Said proviso only applies where the boundaries are changed, or where part of an overlapping claim which has been abandoned is taken in.

AUTHORITY TO MAKE AMENDED LOCATION.-The agent, or anyone authorized to do so, can make an amended or additional location. Such authority is not required to be in writing.

EVIDENCE.-On the trial of an action like the one at bar, all evidence tending to show the right of the plaintiff to the possession of the land in controversy is competent evidence and should be admitted.

(Syllabus by the court.)

APPEAL from District Court, Owyhee County.

Reversed and remanded. Costs of the appeal awarded to the appellants.

J. G. Watts and M. A. Folsom, for Appellant.

It is only where the insufficiency of the location certificate in its failure to mention natural objects or permanent landmarks is apparent upon its face that the court may reject it. (Dillon v. Bayliss, 11 Mont. 171, 27 P. 725; Darger v. Le Sieur, 8 Utah 160, 30 P. 363; Hammer v. Garfield M. & M. Co., 130 U.S. 291, 9 S.Ct. 548, 32 L. ed., 964; Russell v. Chumasero, 4 Mont. 309, 1 P. 713; Clearwater Short Line Ry. Co. v. San Guarde, 7 Idaho 106, 61 P. 137; Farmington Gold Min. Co. v. Rhymney Gold etc. Co., 20 Utah 363, 77 Am. St. Rep. 913, 58 P. 832; Flavin v. Mattingly, 8 Mont. 242, 19 P. 384.) A liberal rather than a technical construction should be given to location certificates, and their sufficiency with reference to natural objects or permanent monuments has been generally held to be a question of fact. (Brown v. Levan, 4 Idaho 794, 46 P. 661; Fissure Min. Co. v. Old Susan Min. Co., 22 Utah 438, 63 P. 587.) And where the record contains a reference to some landmark, the court should not, upon a mere inspection of the record, and in the absence of evidence, declare the description insufficient. (Russell v. Chumasero, 4 Mont. 309, 1 P. 713.) Absolute certainty is not required in the identification of a claim; it is only necessary that the description be sufficiently definite to identify the claim with reasonable certainty. This is the language of the statute, and the courts have so held. (Brady v. Husby, 21 Nev. 453, 33 P. 801.) Many objects have been enumerated by the courts as being such permanent and conspicuous landmarks as would satisfy the requirements of the statute, and among others it has been held repeatedly that a reference to well-known mining claims is a sufficient compliance with the law. (Duncan v. Fulton, 15 Colo. App. 140, 61 P. 244; Wells v. Davis, 22 Utah 322, 62 P. 3; Bramlett v. Flick, 23 Mont. 95, 57 P. 869; Kinney v. Fleming (Ariz.), 56 P. 723.) Can a void original location certificate be amended? (McEvoy v. Hyman, 25 F. 596; Van Zant v. Argentine Min. Co., 2 McCrary, 159, 8 F. 725; Strepey v. Stark, 7 Colo. 614, 5 P. 111; Frisholm v. Fitzgerald, 25 Colo. 290, 53 P. 1109; Duncan v. Fulton, 15 Colo. App. 140, 61 P. 244; McGinnis v. Egbert, 8 Colo. 41, 5 P. 652; Jordan v. Schuermann (Ariz.), 53 P. 579; Moyle v. Bullene, 7 Colo. App. 308, 44 P. 69.) The location of a mining claim may be made by an agent. (Schultz v. Keeler, 2 Idaho 568, 21 P. 418; Thompson v. Spray, 72 Cal. 528, 14 P. 182; Moore v. Hamerstag, 109 Cal. 122, 41 P. 805.) And the contract or agency need not be evidenced by writing. (Hirbour v. Reeding, 3 Mont. 15; Rush v. French, 1 Ariz. 99, 25 P. 816.) The law recognizes the possessory title of the occupant of mineral land as good against a mere trespasser. We should have been allowed to prove a possessory title, so as to put the defendant upon proof that he had a better title. Both parties rely upon simple possession alone; priority of possession gives the better right. (Campbell v. Rankin, 99 U.S. 261, 25 L. ed. 435; Faxon v. Bernard, 2 McCrary, 44, 4 F. 702; North Noonday Min. Co. v. Orient Min. Co., 11 F. 125; Armstrong v. Lower, 6 Colo. 581.) On appeal from judgment of nonsuit, the court will regard as proven whatever relevant facts plaintiff's evidence tended to prove. (Ferris v. Baker, 127 Cal. 120, 59 P. 937; Warner v. Darrow, 91 Cal. 309, 27 P. 737.) Where a party moves for a nonsuit, the ground of the motion must be precisely stated, and no other grounds than those stated can be considered by the trial court in granting or refusing the motion, or by the appellate court in reviewing the order. (Shain v. Forbes, 82 Cal. 577, 23 P. 198; Coffey v. Greenfield, 62 Cal. 602; Bronzan v. Drobaz, 93 Cal. 647, 29 P. 254.)

C. M. Hays, John F. Nugent and Johnson & Johnson, for Respondent.

The mining act of the territory of Idaho in force January 1 1887, when the location of the Bullion claim was attempted, provided that, among other things, the notice of location "shall also give such a description of the locality of the claim by reference to natural landmarks or fixed objects and contiguous claims, if there be any, as to render the situation of the same reasonably certain, from the letter of the notice itself." (Act of February 10, 1881, section 3 (11 Sess. Laws, 263), and subsequently enacted into section 3102 of the Revised Statutes.) By section 6 of the same act (Rev. Stats., sec. 3105), it is provided that: "The notice herein required to be recorded is a copy of the notice placed upon the claim, or substantially a copy of the same." (U. S. Rev. Stats., sec. 2324; Gleeson v. Martin White M. Co., 13 Nev. 466; Gilpin County M. Co. v. Drake, 8 Colo. 589, 9 P. 787; Drummond v. Long, 9 Colo. 538, 13 P. 543; Clearwater Short Line Ry. Co. v. San Garde, 7 Idaho 106, 61 P. 137, 138; Brown v. Levan, 4 Idaho 794, 46 P. 661.) The rule as to amended locations is well established by the decisions and approved by the text-writers; and the statute of our state only allows an amended location; "provided, that such amended location does not interfere with the existing rights of others at the time when such amendment is made." (5 Sess. Laws, p. 238, sec. 5.) The rule of law is thus stated in 1 Lindley on Mines, section 398, page 507; Barringer and Adams on Mines and Mining, page 251. Counsel in their complaint and at the trial below properly rested plaintiff's claim upon the notice of location of January 1, 1887, and it was absolutely essential for them to do so, for a valid location is the only method of acquiring title to the mineral lands of the United States. (Gwillim v. Donnellan, 115 U.S. 50, 5 S.Ct. 1110; Lalande v. McDonald, 2 Idaho 307, 13 P. 350.) Plaintiffs, without a valid location, could acquire no rights as against one who afterward peaceably locates a mining claim covering the same ground, and complies with the mining laws and regulations. And in the absence of evidence it will not be presumed that defendant has failed to do this. Whether he has done so or not in this instance is a question for the land department to decide before granting a patent. ...