Ninemire v. Nelson

• Decision Date: 18 October 1926
• Docket Number: 19823.
• Citation: 140 Wash. 511,249 P. 990
• Parties: NINEMIRE et al. v. NELSON et al.
• Court: Washington Supreme Court

249 P. 990

140 Wash. 511

NINEMIRE et al. v. NELSON et al.

No. 19823.

Supreme Court of Washington

October 18, 1926

Department 1.

Appeal from Superior Court, Lewis County; Reynolds, Judge.

Action by G. W. Ninemire and another against C. O. Nelson, R. F Brown, and another to recover possession of an undivided one-half interest in a mining claim. Judgment for plaintiffs and defendants C. O. Nelson and R. F. Brown appeal. Affirmed.

W. W Beal, of Centralia, James A. Stinson, of Chehalis, and Hayden, Langhorne & Metzger, of Tacoma, for appellants.

William A. Gilmore and Winter S. Martin, both of Seattle, and Dysart & Ellsbury, of Centralia, for respondents.

ASKREN J.

This is an action brought to recover possession of an undivided one-half interest in a mining claim in Skamania county. From a judgment entered on a directed verdict in favor of plaintiffs, he defendants C. O. Nelson and R. F. Brown appeal.

In the summer of 1923 one J. J. Baxter discovered gold in the Nigger Head mining district of Skamania county. He posted notice, blazed lines, and set stakes to mark the boundaries. He then filed his notice of location in the office of the county auditor, naming his discovery the Gold Dollar claim. Thereafter he conveyed the whole thereof to the defendant McGlothlin, who in turn reconveyed to Baxter an undivided one-half interest. Baxter then conveyed this interest to Morgan and Ninemire, the respondents.

On December 15, 1923, the appellant Brown entered upon the premises included within the notice of the Gold Dollar location, and claims to have discovered gold at approximately the same point where Baxter made discovery. He thereupon posted a notice of location and established lines and monuments for a claim to be known as the La Rica. The lines of the claim were such as to carve out of the Gold Dollar claim the points of discovery (the only apparently valuable part thereof), the northwest and northeast corners being identical, and the claim proper running diagonally across the Gold Dollar in an easterly direction. The notice of relocation was filed with the county auditor. Brown, subsequent to the posting of the notice, but prior to its filing with the county auditor, conveyed an undivided one-half interest to McGlothlin. Thereafter Nelson became interested in the claim through Brown. McGlothlin, Nelson, and Brown took possession of the claim and have refused the respondents access to or any right therein. Upon trial the evidence disclosed that Brown, prior to his alleged discovery on December 15, 1923, had been upon the Gold Dollar claim in November and had observed the cut made thereon by Baxter, and had told Morgan that the claim was not properly located. The evidence shows that some one thereafter removed the markings made by Baxter and used some of the monuments by obliterating or chopping off the Baxter notice, and Brown produced at the time of trial the original notice of Baxter's discovery that had been placed in a can at the point of discovery. The record fully disclosed that any claimed discovery made by Brown was made after full knowledge of the location by Baxter, and of the monuments and marks delineating the same, and that any location made by him can only be upheld if the court can say that the notice of location by Baxter was clearly void. The evidence also shows that Brown's attempted location as being on forfeited or abandoned property did not refer to the forfeiture or abandonment of the owners of the Gold Dollar, for he never believed at any time that the Gold Dollar claim was either abandoned or forfeited, but thought defects in the notice would permit him to take possession thereof.

Bearing in mind that the law does not look with favor upon him who deliberately and knowingly seeks to appropriate to himself the fruits of another's labor, and that the policy of the law will always uphold an original discovery even though there be technical defects, if the location is made in good faith, and the notice is not such as misleads others, our inquiry must first be directed to the objections made to the sufficiency of Baxter's notice.

It must be admitted that the claim is not described with that degree of precision that might be wished for, and that the notice could hardly be used as a model for others; but that it is such that any one wishing to identify the location of the claim could reasonably do so cannot be doubted.

In Bismark Mountain Gold Mining Co. v. North Sunbeam Gold Co., 14 Idaho, 516, 95 P. 14, is found a clear statement of the purpose of the notice. The court said:

'It is the well-settled doctrine of all of the later decisions that location notices and records should receive a liberal construction, to the end of upholding a location made in good faith. In Londonderry M. Co. v. United G. M. Co., 38 Colo. 480, 88 P. 455, where the court was considering the sufficiency of a location notice, it is said: 'Every case where this question is raised must therefore depend upon its own circumstances. As previously stated, the purpose of such location certificate is to give notice to subsequent locators; and, if by reasonable construction the language descriptive of the situs of a claim, aided or unaided by testimony, aliunde, will do so, it is sufficient in this respect. In other words, the object of requiring a reference to a natural object or permanent monument is to furnish means by which to identify the claim, and whatever reference will accomplish this object

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