National Mill. & Min. Co. v. Piccolo

• Decision Date: 25 September 1909
• Citation: 104 P. 128,54 Wash. 617
• Court: Washington Supreme Court
• Parties: NATIONAL MILL. & MIN. CO. v. PICCOLO.

104 P. 128

54 Wash. 617

NATIONAL MILL. & MIN. CO. v. PICCOLO.

Supreme Court of Washington, En Banc.

September 25, 1909

Appeal from Superior Court, Snohomish County; W. W. Black, Judge.

Action by the National Milling & Mining Company against James Piccolo. Judgment for plaintiff, and defendant appeals. Affirmed.

Kirkpatrick & Doty and Morris, Southard & Shipley for appellant.

J. H Naylor and Merrick & Mills, for respondent.

FULLERTON J.

In this action the respondent seeks to recover from the appellant the possession of a part of two certain mining claims situated in the Silver Creek mining district in Snohomish county, Wash. The claims in question were originally located by the respondent's predecessors in interest as early as August 1887, and from that time until January, 1906, were held and possessed by such predecessors and the respondent without let or hindrance from any one. During this period the possessors ran tunnels, sank shafts, and erected buildings on the property, tending towards its development as a mine, at a cost of upwards of $10,000. In January, 1906 the appellant entered upon the territory covered by the respondent's claims, and attempted to locate a new mineral claim. As marked upon the ground, his attempted location did not follow the lines of either of the respondent's claims, but crossed the same diagonally, covering a part of the ground of both, but it did include all of the tunnels, shafts, buildings, and other works the respondent had put thereon in the way of development; in fact, the notice of location was posted at the mouth of the principal tunnel run upon the claims. Later on in the season he procured a large door by which he closed the mouth of this tunnel, locking the same and excluding the respondent therefrom. Thereafter this action was begun to recover possession as above stated. In its complaint the respondent alleged title, possession, and right of possession, and the wrongful entry of the appellant thereon. The defendant admitted the entry, but sought to justify by averring that the ground at the time of his entry was vacant public mineral land subject to location under the mineral land laws of the United States, and that he had located the same as a mineral claim under such laws; further averring that the respondent had forfeited all of its rights to the same, if any it ever had, by failing to do its assessment work thereon for the year 1905. The affirmative allegations of the answer were denied in the reply. On the issues so made a trial was had before the court sitting without a jury, and resulted in findings to the effect that there had been no forfeiture of respondent's location, and consequently the appellant's location was invalid. From the judgment entered on the findings, this appeal is taken.

The appellant first contends that the complaint does not state facts sufficient to constitute a cause of action. It is argued that a plaintiff in an action to recover possession of a mineral claim must allege and prove all of the facts necessary to show a lawful and valid location of the claim by some person entitled under the laws to make a mineral location, such as the due marking of the boundaries of the claim on the ground, the posting of the notice of location, its recording, and that the locator was qualified under the laws of the United States to make a location. But in an action to recover possession of a mining claim the complaint need not be different from that required in possessory actions generally. It is sufficient to allege ownership and right of possession, and that the defendant wrongfully entered thereon. Such an averment carries with it all of the facts essential to establish ownership. The means by which the possessor is entitled to the possession are matters of evidence. Protective Mining Company v. Forest City Mining Company, 51 Wash. 643, 99 P. 1033; Rev. St. U.S. § 910 (U. S. Comp. St. 1901, p. 679); 27 Cyc. 644; Fulkerson v. Chisna Min. & Imp. Co., 122 F. 782, 58 C. C. A. 582. The complaint in this action was thus definite, and we hold it sufficient.

It is contended, further, that the description of the claim was insufficient both in the complaint and in the notices of location. Without, however, entering into detail concerning the description, we think the descriptions sufficient when aided by the respondent's long continued possession. Moreover, it is manifest that the appellant was not deceived or misled by any false or deficient description. It plainly appears that he knew the boundaries of the claims and entered within them for the purpose of acquiring for himself the benefit of the respondent's labor and expenditures, believing that the respondent had forfeited its rights, not in ignorance of such rights, nor for want of a sufficient description of the property in the location notices. The purpose of description is to give notice, and, since the appellant had notice, it would seem that he was not in a position to complain of technical defects which in no way affected his rights.

It is next contended there is a variance between the pleading and the proofs. On the trial of the cause the respondent introduced an amended notice of location filed in 1890, which the appellant contends contained a description differing from that set out in the complaint and contained in the original notice. But the variation, if any was not material. The claims were marked out on the ground, and the boundaries were well known to the appellant. His entry was upon territory plainly defined in both locations. It might be that a...