Oscamp v. Crystal River Min. Co., 212.
| Decision Date | 02 October 1893 |
| Docket Number | 212. |
| Citation | 58 F. 293 |
| Parties | OSCAMP v. CRYSTAL RIVER MIN. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
L. C Rockwell, for plaintiff in error.
Charles J. Hughes, Jr., for defendant in error.
Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.
The question presented by this record appears to be one of first impression, and arises out of the following facts: The plaintiff in error is the owner of an undivided one-third part of the Excelsior No. 1 lode mining claim, hereafter called the 'Excelsior Claim,' situated in the Elk Mountain mining district, Gunnison county, Colo. The defendant in error is the owner of the Black Queen lode mining claim, hereafter termed the 'Black Queen,' which is situated in the same district, county, and state. Of these claims the Excelsior is founded upon the earlier location. Both claims are rectangular in shape, and, as originally laid upon the surface of the earth, the north side line of the Black Queen runs diagonally across the southwest corner of the Excelsior claim, and cuts off from the latter claim a small, triangular piece of ground having an area, as it is said, of about three-quarters of an acre. A suit was brought by the plaintiff in error on July 7, 1890, against the defendant in error in the circuit court for the district of Colorado, to recover the triangular parcel of land aforesaid, on the ground that the owners of the Excelsior claim had the superior title thereto by reason of their older location, and that they had been wrongfully ousted from the possession thereof by the defendant in error. On the trial in the circuit court it appeared from an admission made by counsel for the plaintiff that after the Excelsior claim was located the requisite amount of development work under section 2324 of the Revised Statutes of the United States (to wit, $100 worth of work per year, the claim having been located after May 10, 1872) was done during each of the years 1882 and 1883, that no work was done on the claim during the year 1884, but that the owners reentered and resumed development work in 1885. When this admission was made, the circuit court charged, in substance, that the failure of the owners of the Excelsior claim to do any development work thereon during the year 1884 made the Black Queen location good as to all of the lands within its side lines and end lines, including the triangular piece heretofore mentioned notwithstanding the fact that the owners of the Excelsior claim had originally had the superior title to the triangle in question by virtue of their older location. The theory of the circuit court seems to have been that, as the owners of the Black Queen continued in possession and at work on their claim during and after the year 1884, while operations on the Excelsior claim were suspended, and that as the two claims conflicted and overlapped in the manner before indicated, the failure of the owners of the Excelsior claim to do any work during the year 1884 was an abandonment of their superior right to the space where the claims overlapped, and that as to such territory the title of the Black Queen became paramount without any affirmative action on the part of its owners, from and after January 1, 1885, and that the relative status was not altered when the Excelsior claimants resumed work during that year. The soundness of that view is challenged by the plaintiff in error, and the action of the circuit court in enforcing it in its charge is the error that we have to review.
In Belk v. Meagher, 104 U.S. 279, 283, it was held, after much consideration, that a mining location, when perfected according to the statutes of the United States and local laws and regulations, 'is property in the highest sense of that term, which may be brought, sold, and conveyed, and will pass by descent,' and that there is nothing in the law under which such property is acquired 'which makes actual possession any more necessary for the protection of the title acquired to such a claim by a valid location than it is for the protection of any other grant from the United States.' It was furthermore held in that case that a failure to do the requisite amount of annual development work on a claim under section 2324 of the Revised Statutes of the United States simply renders the claim subject to relocation by third parties, after the lapse of the year, and not before, and that such right of relocation is itself lost, and the original owner is restored to all of his rights, if he enters without force, and resumes work, before a relocation is perfected by any third party.
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