Murray v. White
| Decision Date | 16 January 1911 |
| Citation | 113 P. 754,42 Mont. 423 |
| Parties | MURRAY v. WHITE et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.
Suit by James A. Murray against Robeson T. White and another. From a decree in favor of plaintiff, defendants appeal. Affirmed.
Kirk Bourquin & Kirk and W. T. Pigott, for appellants.
Roote & Murray, for respondent.
This suit was brought by Murray to enforce the specific performance of a contract to convey real estate. From a decree in favor of plaintiff and from an order denying them a new trial, the defendants have appealed.
In his complaint the plaintiff alleges that in July, 1898, he and the defendant White each had an application before the Land Department of the United States, to enter the S. 1/2 S.E 1/4, and the S.E. 1/4 S.W. 1/4 of section 17, township 3 N., range 7 W., in Silver Bow county; that the parties were claiming the land adversely, and, for the purpose of affecting a compromise and facilitating the issuance of patent, they entered into a contract by the terms of which Murray agreed to relinquish his claim to the S.E. 1/4 S.W. 1/4, hereinafter called the west forty, and the S.W. 1/4 S.E. 1/4, hereinafter called the middle forty, and not hinder or obstruct the issuance of patent therefor to White; and White agreed to relinquish his claim to the S.E. 1/4 S.E. 1/4, hereinafter called the east forty, and not thereafter hinder Murray in securing patent to that portion of the land; that White further agreed to procure the right to make, and make, a soldier's additional homestead entry, or other scrip entry, upon the west and middle forties, procure patent therefor, and, as soon as patent should be issued, transfer the middle forty to Murray, upon Murray's paying one-half the expense of such patent proceedings. It is then alleged that pursuant to the agreement the respective relinquishments were made; that White procured patent to the west and middle forties; that Murray paid a part of the expense and offered to pay the balance, if any, of the one-half of such expense, and has otherwise performed his part of the agreement, but that White refuses to render any account of the expense of procuring patent, and refuses to convey the middle forty as he agreed to do. It is alleged that defendant Lloyd claims some interest in the land in controversy, but that any claim which he may have was acquired subsequently to the date of the agreement between Murray and White, and with full knowledge of Murray's rights. A copy of the agreement is attached to, and made a part of, the complaint. The answer of the defendant Lloyd alleges that his only claim to the land is subordinate to the claim of White, and depends for its validity upon a successful defense by White. The answer of the defendant White does not deny any allegation of the complaint, but contains four separate affirmative defenses. The material allegations of these defenses were denied in a reply. Upon the trial the defendants assumed the burden of proof. The trial court found against them as to every one of their defenses, and the contention now is that the evidence preponderates against the findings made.
First Defense. It is alleged that the contract was procured by fraud, misrepresentation, and unfair practices on the part of Murray, in this: That all the lands were agricultural lands of the United States; that White had a bona fide application before the United States Land Department to enter such lands under the homstead laws; that Murray claimed that all of the lands contained valuable deposits of placer gold, and was claiming them under a pretended location thereof as a placer mining claim, whereas, in truth and in fact, said lands did not contain any deposits of placer gold and were nonmineral in character, all of which facts were well known to Murray but unknown to White; that in fact Murray did not have any claim to the lands; had prior thereto relinquished his pretended claim to the east forty altogether, and permitted others to locate the same; that, for the purpose of deceiving White and inducing him to enter into the contract in question, Murray misrepresented the character of his pretended claim to the west and middle forties, and concealed from White the fact that he had no claim whatever to the east forty; that Murray represented that he had a good and valid placer location upon the lands and would contest and litigate with White for the lands; that, relying on, and believing in, Murray's representations as to the character of his claim, and to avoid the threatened litigation, and not otherwise, White entered into the agreement.
(a) Appellants attack Murray's placer location as being fraudulent. They insist that the evidence shows that Murray knew that the ground was nonmineral in character, and that his representation to White that he had a valid placer location was false, and made with intent to deceive White and induce him to enter into the contract. It is true that the evidence as to the presence of minerals in the ground is very slight, and that Murray had maintained his location for several years without developing a paying placer, and without demonstrating that the ground was in fact valuable for the minerals it contained. But there is some evidence that placer gold had been discovered in the ground, the surface of which is decomposed granite and other rock washed down from the nearby mountains. All the other portions of section 17 have been patented as placer locations. The ground is situated near the great quartz mines of Butte, and along the same stream, and not far from producing placers. The general character of the soil and the location of the ground are such as to indicate the presence of placer gold. Witnesses expressed the opinion that the ground could be mined profitably by dredging. Under these circumstances we do not think that it can be said that the evidence shows such a degree of poverty in the placer claim that Murray's assertion of that claim should be held to be fraudulent. Neither the federal nor state statutes require that, to constitute a placer, the ground shall yield any specific quantity of precious metals. Neither is it required that the deposits of mineral shall be sufficiently extensive to pay operating expenses, in order to locate and maintain a valid placer claim.
It has long been the settled rule that, to constitute a discovery, within the meaning of that term as used in mining law, it is sufficient that precious metals be found in the ground in quantity which justifies the locator in spending his time and money in prosecuting development work, with the reasonable hope or expectation of finding mineral in payment quantities. Harrington v. Chambers, 3 Utah, 94, 1 P. 362; Book v. Mining Co. (C. C.) 58 F. 106; Nevada Sierra Oil Co. v. Home Oil Co. (C. C.) 98 F. 676; 27 Cyc. 556; Snyder on Mines, §§ 349, 360; Shreve v. Copper Bell M. Co., 11 Mont. 309, 28 P. 315; McShane v. Kenkle, 18 Mont. 208, 44 P. 979, 33 L. R. A. 851, 56 Am. St. Rep. 579; Noyes v. Clifford, 37 Mont. 138, 94 P. 842. The precious metals are not evenly distributed throughout veins or placer ground. A claim may be barren in one part, poor in another, rich in another, and withal very valuable as a whole, so that the failure of the locator to develop a paying property within any given time is not conclusive against the validity of his claim. It is a part of the history of this mining region that, even in the case of a placer claim, much time and labor must be expended and considerable expense incurred in developing a paying claim, when bed rock is covered with great quantities of débris, as is the case in the present instance. The evidence shows that Murray is a man of experience in mining operations, and that he evidenced his faith in the validity of his claim by the expenditure of considerable money in sinking shafts in attempts to reach bed rock, where he expected to find placer gold. Furthermore, White had an equal opportunity with Murray to examine the soil, determine its character, and decide for himself whether Murray's contention that the land was mineral in character had any foundation in fact. While there are facts and circumstances which tend to discredit Murray's claim, we are not satisfied that the evidence preponderates against the trial court's finding.
(b) It is further insisted that Murray perpetrated a fraud on White in concealing the fact that he had already relinquished his claim to the east forty. The defendants, having the burden of proof, were compelled to show (1) that the fact concealed was a material one, and (2) that but for the concealment, White would not have entered into the agreement. White testified that some time in the early part of 1898, before the contract with Murray was entered into, he discovered that the east forty contained brick clay; that he called this fact to the attention of his attorney, and was advised that the Land Department might hold that forty subject to mineral entry and because of this advice he did not attach so much value to his homestead application for that forty; that he was of the opinion that the Land Department had classified the middle and west forties as agricultural land; that he knew the east forty was clay placer, and that he had little hope of success in contesting with Murray. Furthermore, White testified that his negotiations with Murray commenced in May or June, 1898; that Murray then asserted his claim, and that he could secure proof necessary to procure patent as a placer; that at their first meeting Murray suggested the terms of the compromise, and he agreed to them; that he knew in a general way that the surrounding lands had been taken up as mineral claims, and that he signed a relinquishment...
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