Murray Hill Min. & Mill. Co. v. Havenor

• Decision Date: 23 November 1901
• Docket Number: 1299
• Citation: 24 Utah 73,66 P. 762
• Court: Utah Supreme Court
• Parties: THE MURRAY HILL MINING AND MILLING COMPANY, a Corporation, Respondent, v. WILLIAM HAVENOR and ALBERT HEUSTED, Appellants

66 P. 762

24 Utah 73

THE MURRAY HILL MINING AND MILLING COMPANY, a Corporation, Respondent, v. WILLIAM HAVENOR and ALBERT HEUSTED, Appellants

No. 1299

Supreme Court of Utah

November 23, 1901

Appeal from the Fifth District Court, Juab County.--Hon. E. V. Higgins, Judge.

The defendants, having applied in the United States land office for a patent of the Havenor mining claim, and the plaintiff company having filed a protest and adverse claim, this suit was instituted by the plaintiff to determine the right of possession of the premises. From a judgment in favor of the plaintiff, the defendants appealed.

AFFIRMED.

Messrs Powers, Straup & Lippman for appellants.

William A. Lee, Esq., A. C. Bishop, Esq., Messrs. Patterson & Moyer and S.W. Darke, Esq., for respondent.

BASKIN J. MINER, C. J., and BARTCH, J., concur.

OPINION

BASKIN, J.

The appellants, having applied in the United States land office at Salt Lake City for a patent of the Havenor mining claim, and the respondent having filed in said office a protest and adverse claim, this suit was instituted by the respondent, in pursuance of section 2326 of the Revised Statutes of the United States, to determine the question of the right of possession of the premises adversely claimed by respondent. The application of the appellants was for a patent of the Havenor, which was located on or about the fourteenth of February, 1899, and embraces a portion of the Murray Hill, Sego Lily, and Silver Dick, claimed by the respondent under the location and a conveyance by the locators thereof to it. The portion of the latter mines so embraced, and which is set out in the complaint, constitutes the premises in controversy, and by the decree was awarded to the respondent.

In the stipulation of the attorneys for the respective parties, which is set forth in the record, the appellants admit certain paragraphs of the complaint, among which are the second, fourth, and all of the fifth except the first five lines, and which are as follows: "(2) That George Naylor, John W. Meyers, and George H. Murray, and each of them, were at all the times herein mentioned, and now are, citizens of the United States of America, and duly qualified to enter upon and explore the unoccupied mineral lands of the United States, and did enter upon and explore the premises, and discovered and located the Murray Hill, Sego Lily, and Silver Dick lode mining claims, on the seventeenth, eighteenth, and nineteenth days of August, 1896, respectively, and that each of said lode mining claims had thereon at the time of such location, and has now, a vein or lode of rock in place, bearing gold, silver, and other precious metals. (4) That at the time of the location of each of the said claims, respectively, the said several claims were mineral lands of the public domain, and entirely vacant and unoccupied, and were not owned, held, or claimed by any person or persons as mining ground or otherwise; and that while the same were so vacant, unoccupied, and unclaimed as aforesaid they were located as aforesaid, in accordance with the requirements of the laws of the United States, and the local customs, regulations, and rules of the said Tintic mining district, and the laws of the State of Utah; and that notices of such locations were duly posted, as required by law, upon each of said claims; and that said notices were thereafter, on the seventeenth, twenty-first, and twenty-fourth days of August, 1896, respectively, duly filed for record, and recorded on pages 121, 130, and 136 of book U of the Tintic mining district, records of Juab county, State of Utah, now in the office of the county recorder of said Juab county, Utah. (5) That said locators remained continuously in possession of said claims, working upon the same, up to about April 10, 1897, and did perform work and labor upon each of said claims in the development thereof, to an amount exceeding in value the sum of one hundred dollars. That on or about the tenth day of April, 1897, the articles of agreement of the plaintiff company were duly executed by the respective incorporators thereof. That it was therein provided that the capital stock of said plaintiff company should be fixed at 250,000 shares of the par value of $ 1 per share, and that the same was fully paid up by the transfer to this plaintiff of the mining claims aforesaid as consideration for the organization of said corporation, and the issuance by it of its capital stock to the locators of said claims in amounts following, to-wit: to said George Naylor, 38,890 shares; to George H. Murray, 40,740 shares; and to John W. Meyers, 20,370 shares." Said stipulation, in addition to the foregoing admission of facts, contained the following provisions: "The said stipulation is intended to admit all facts in issue, as presented by the pleadings in said cause, except the following facts: (1) As to which of the said parties were in the actual possession of the property in dispute and during the times covered in the pleadings. (2) The question of the performance of work and labor and the development of said property in dispute, and the amounts thereof. That this stipulation of the said facts is made, nevertheless, subject to all objections that might be made as to relevancy, materiality, and competency of the admitted facts, the same as though proof were offered to prove the said admitted facts, and as though this stipulation had not been made." The locators of the Murray Hill, Sego Lily, and Silver Dick, and several other persons, were the incorporators of the respondent company. The articles of incorporation were signed by each of the incorporators, and duly acknowledged, and the oath required by law attached thereto. The articles contained the following provisions: "In consideration of the transfer and conveyance by said George Naylor, John W. Meyers, and George H. Murray to the corporation of the properties hereinafter described, the said conveyance having been procured and caused to be made to the corporators herein named, the shares of stock herein set forth as subscribed by parties hereto, respectively, and the entire capital stock of the corporation are taken and to be considered fully paid stock, and said conveyance and transfer shall be deemed taken and considered full payment for said stock." The property thereinafter described was the Murray Hill, Sego Lily, and Silver Dick. No evidence in writing of a conveyance to the respondent of said mining claims, other than the articles of incorporation, was introduced, and it is conceded that no other written evidence of the same exists. The trial court permitted the articles to be introduced over appellants' objection, which was that the same were incompetent, irrelevant, and immaterial. The admission of the articles is assigned as error.

The specific grounds of the objection urged by appellants' counsel in their brief to the admission of the articles are that that instrument was not a conveyance, and under it no title was acquired by respondent to the premises therein mentioned. The same point is raised by the assignment that the court erred in finding and decreeing that the respondent is the owner and entitled to the possession of the premises in dispute. As the foregoing assignments are intimately connected, they will be considered...