Nicholls v. Lewis & Clark Mining Co.

• Decision Date: 14 May 1910
• Citation: 109 P. 846,18 Idaho 224
• Court: Idaho Supreme Court
• Parties: WILLIAM F. NICHOLLS and WILLIAM GRIBBLE, Respondents, v. LEWIS & CLARK MINING COMPANY, Appellant

109 P. 846

18 Idaho 224

WILLIAM F. NICHOLLS and WILLIAM GRIBBLE, Respondents, v. LEWIS & CLARK MINING COMPANY, Appellant

Supreme Court of Idaho

May 14, 1910

MINERAL LOCATION-EXCESSIVE AREA-FRAUDULENT LOCATION.

(Syllabus by the court.)

1. Where an excessive mineral location has been made through mistake, while the locator was acting in good faith, the location will be void only as to the excess; but where the locator has purposely included within his exterior boundaries an excessive area with the fraudulent intent of holding the entire area under one location, such location is void; or if made so large that the location cannot be deemed the result of innocent error or mistake, fraud may be presumed.

2. Where the exterior boundaries of a mineral location include such an unreasonably excessive area that such boundary lines cannot be said to impart notice to a prospector of a mineral location or discovery within the reasonable distance of a lawful claim as located under the statute such location will be held void on the ground that the boundaries of the claim have never been marked and established as required by law.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.

Action by plaintiffs in support of an adverse claim to establish the title to a certain mining claim called the "Senator." Judgment for the plaintiffs and the defendant appealed. Reversed.

Reversed and remanded. Costs in favor of appellant.

Gray &amp Knight, Wm. K. Shissler, and Therrett Towles, for Appellant.

The locations of the respondents were so excessive in size as to be void. Where four locations as in this case are so excessive that they include within their exterior boundaries an area that is more than the law allows for nine full claims, the same are certainly void under the decisions of this court, and under the spirit and the letter of the mining law. (Howeth v. Sullenger, 113 Cal. 547, 45 P. 841; Hauswirth v. Butcher, 4 Mont. 299, 1 P. 714; Leggatt v. Stewart, 5 Mont. 107, 2 P. 320; Burke v. McDonald, 2 Idaho 683, 33 P. 49; Stemwinder Min. Co v. Emma etc. Min. Co., 2 Idaho 456, 21 P. 1040.)

The object of a location notice is to guide a subsequent locator and to afford him information as to the extent of a prior location. Whatever does this fairly and reasonably should be held to be a good notice. (Londonderry Min. Co. v. United Gold Mines Co., 38 Colo. 480, 88 P. 457; Kinney v. Fleming, 6 Ariz. 263, 56 P. 723; Morrison v. Regan, 8 Idaho 291, 67 P. 955; Atkins v. Hendree, 1 Idaho 100; Lindley on Mines, sec. 362; Snyder on Mines, 397, 398.)

Kerns & Ryan, for Respondents.

"The general rule is that the location of a claim excessive in size will only be void as to the excess, if the excess is not attributable to a fraudulent act of the locator but to an innocent mistake." (27 Cyc. 561; Howeth v. Sullenger, 113 Cal. 547, 45 P. 841; Gohres v. Illinois etc. Co., 40 Ore. 516, 67 P. 666; Richmond Min. Co. v. Rose, 114 U.S. 579, 5 S.Ct. 1055, 29 L.Ed. 273; Lindley on Mines, sec. 362; McIntosh v. Price, 121 F. 716, 58 C. C. A. 136; Hansen v. Fletcher, 10 Utah 266, 37 P. 480; Taylor v. Parenteau, 23 Colo. 368, 48 P. 505; Jupiter Min. Co. v. Bodie C. M. Co. (Cal.), 11 F. 666; Atkins v. Hendree, 1 Idaho 95; Stemwinder Min. Co. v. Emma & Lost Chance Con. M. Co., 2 Idaho 456, 21 P. 1040.)

AILSHIE, J., SULLIVAN, C. J. Sullivan, C. J., Stewart, J., and Ailshie, J., concurring.

OPINION

AILSHIE, J.

This is an adverse suit which was commenced by the respondents claiming to be the owners of the Senator lode claim, with which it was alleged the Louis and Clark lode claims conflicted. On September 4, 1905, W. Z. Pepper, a prospector and the predecessor in interest of the appellant corporation, discovered a vein of mineral-bearing rock in the Hunter mining district, Shoshone county, and thereupon posted two notices of location, one for the Louis and the other for the Clark claim. The validity of the discovery is not questioned. At the time of making the discovery and posting the notices, Pepper met the respondent Gribble, who informed him that he (Gribble) owned certain claims which embraced the ground Pepper was about to locate. It seems that he then stated that he owned ground embraced in four claims in a compact body, being 3,000 feet in length by 1,800 feet in width. These claims were named, respectively, the Senator, Lost Booze, Prize and Princess. The claim with which it is urged that Pepper's locations conflicted was the so-called "Senator."

At the time of Pepper's discovery and location he did not know of the existence of the Senator claim except what Gribble told him. Gribble did not, and apparently could not, show Pepper the stakes to the Senator claim. Pepper testifies that Gribble did not point out or show him any of the stakes or corners or the discovery on the Senator, but that, on the contrary, Gribble told him that the stakes had either been removed or burned down. Gribble, however, testifies that he pointed out the stake at the southeast corner of the Senator and also the east center end stake. He says: "I told him [Pepper] where they were,--two or three of the corners. Only one of them stakes I told him at the southeast corner of the Senator and the center post. I didn't know where the others was; I couldn't find any." After this conversation, Pepper went to the county recorder's office at Wallace and ascertained from the records the names and descriptions of the claims that Gribble had located in that locality. He found that the location notice of the Senator described that claim as adjoining the Lost Booze on the north and the Princess on the east. He also found that these various location notices claimed ground to the extent of 600 feet in width and 1,500 feet in length for every claim. He thereupon returned to the ground, taking with him a 100-foot tape measure, found the discovery cut or shaft on the Lost Booze claim, measured 900 feet north from this discovery, which allowed 300 feet for the north half of the Lost Booze and a full width of 600 feet for the Senator. He there established the south line of the Lewis claim. He thereupon staked his claim and also located to the east of that claim the Clark lode. These claims as then located and staked on the ground contained substantially the same area and practically identical lines with the same claims as surveyed for patent.

The evidence on the part of the appellant shows that Pepper and his associates and those who worked for him were unable to find any of the stakes on the Senator claim except one tree that was squared and on which there were no markings, and on which Pepper testified that Nicholls marked as the east center end of the Senator subsequent to Pepper's location of the Louis. It is conceded by all parties that there was no location notice posted on the Senator at the time of the Louis location.

The testimony of the respondents, Nicholls and Gribble, and their witnesses shows that the Lost Booze claim was located in 1901 and the Prize, Princess and Senator were located in 1903. The Lost Booze, the Senator and the conflict with the Louis and Clark claims are shown by the following diagram made from the surveyor's notes:

[SEE DIAGRAM IN ORIGINAL]

The Prize claim adjoins the Lost Booze on the west and the Princess adjoins the Prize on the north and the Senator on the west. These two claims, however, are not involved in this case, and only appear as two of the group of claims which the respondents were attempting to hold at the time of the location by Pepper of the Louis and Clark claims.

On about the 18th of September, 1906, the respondents employed an engineer to make a survey of these four claims. It was ascertained from that survey that the ground covered by the four locations comprised a compact area of about 4,649 feet in length by 2,075 feet in width; whereas it could lawfully have embraced in the four locations only an area of 1,200 feet in width by 3,000 feet in length. It was also shown by that survey that the Senator claim had an average width of about 1,065 feet by an average length of about 2,067 feet. In other words, this claim embraced an area equal to more than two and one-third full claims. The respondents therefore had actual knowledge from September, 1906, of the area and extent of the Senator claim as they insist that it was staked on the ground. They made no effort, however, toward drawing in their lines or making an amended location until after the appellant had applied for patent and after the respondents had filed their adverse suit. Their lines were not readjusted until March 31, 1908, on which latter date the surveyor made an amended location and they staked the ground to conform with the amended location which covers the ground in conflict in this action.

It is contended by the appellant in this case that respondents' locations of the Senator, the Lost Booze, the Prize and Princess are so excessive in area as to render the locations void. While counsel for appellant do not place their reliance in so many words on failure of the locators to properly mark the boundaries of their claims by establishing at each corner thereof and at any angle in the side lines a monument marked with the name of the claim and corner, etc., as required by the statute (sec. 3206, Rev. Codes), still the argument leads to that conclusion and results in that position. It is said in the brief that the location is a fraudulent location by reason of the excessive area embraced within the pretended external boundaries, and that this fraud is further emphasized and established by the fact that although the locators had positive proof in September 1906, when the survey was made, of the excessive size of the...