Ralph v. Cole

• Decision Date: 08 March 1918
• Docket Number: 2952,2953.
• Citation: 249 F. 81
• Parties: RALPH v. COLE et al. (two cases).
• Court: U.S. Court of Appeals — Ninth Circuit

249 F. 81

RALPH v. COLE et al. (two cases).

Nos. 2952, 2953.

United States Court of Appeals, Ninth Circuit.

March 8, 1918

Rehearing Denied May 13, 1918.

Gilbert Circuit Judge, dissenting.

(1) That ever since the . . . day of September, 1913, plaintiffs and their predecessors in interest were the owners of and in the actual possession and occupancy of the Guy Davis placer mining claim, 1,500 feet in length by 600 feet in width, said claim being situated in the Battle Mountain mining district county of Lander, state of Nevada, and plaintiffs and their predecessors in interest ever since have been and now are the owners of and entitled to the possession of said mining claim.

(2) That plaintiffs are the owners of and entitled to the possession of said Guy Davis placer mining claim by virtue of a full compliance with the local laws, rules, and customs of miners in said mining district, the laws of the United States, and the state of Nevada relating to mining claims, and by actual prior possession, location, and discovery thereof by these plaintiffs, their grantors, and predecessors in interest.

(3) That on or about August 1, 1914, the defendant wrongfully and without right entered certain portions of said Guy Davis placer mining claim, and on or about said day said defendant filed in the United States land office at Elko, Nev., diagram and field notes of the Salt Lake No. 3 lode, and also the John John and other lodes, and filed therewith an application for patent of the United States for said Salt Lake No. 3 lode, said application being designated as 'M.A. No 01544, Min. Sur. No. 4175,' and caused the register of said land office to give notice of said application for patent by publication, as required by law, in the Battle Mountain Scout, a newspaper published in said mining district at Battle Mountain, Nev., the first publication thereof being made on the 1st day of August, 1914, and in said application said defendant did apply for patent of all of said Salt Lake No. 3 lode, and more particularly described as follows (giving specific description); that by said application for patent, and by said wrongful entry aforesaid, defendant wrongfully and without right entered said Guy Davis placer, and practically all of that part of the Guy Davis placer which is intersected by the exterior lines of said 'Sur. No. 4175,' as shown by plat marked 'Exhibit B,' filed on the 24th day of September, 1914, in the land office of the United States at Elko, Nev., with the adverse claim of the present defendants in error against an entry of said 'Min. Sur. Co. 4175, Mineral Application No. 01544' for patent, said ground so intersected being described as follows (giving specific description), containing 19.86 acres.

(4) That said adverse claim was filed in the said land office within the period of 60 days of notice of said application for patent to said Salt Lake No. 3 lode, and that the present action was commenced before the expiration of 30 days after the filing of the said adverse claim, and is brought in support thereof.

The prayer of the complaint is for judgment against the defendant to the action, for the recovery of the possession of said Guy Davis placer claim, and for a decree that the plaintiffs are the owners, in the possession, and entitled to the possession, of said placer claim, and for the sum of $500 alleged to have been expended in the preparation of said adverse claim, and for the sum of $500 as damages.

In his answer the defendant to the action denies that the plaintiffs, or either of them, or that their predecessors in interest, are or ever were the owners of, or in actual possession of, or entitled to the possession of, any portion of the 'so-called' Guy Davis placer mining claim, or to any of the ground embraced with its side lines, by virtue of a full compliance with local laws, rules, or customs of miners in said mining district, or the laws of the United States or the laws of Nevada, relating to mining claims, or by actual prior possession, location, or discovery by plaintiffs, their grantors, or predecessors in interest, or any one, or at all.

The defendant further denies that on the 1st day of August, 1914, or at any other time, or at all, he or his predecessors in interest, or any one on his behalf, wrongfully and without right entered certain portions of said 'so-called' Guy Davis placer mining claim, but admitted that on said date he filed in the United States land office at Elko, Nev., an application for patent to the said Salt Lake No. 3 lode claim, together with a like application for patents to the John John and other lodes, and with a diagram and notes of the surveys, and caused the register of the said land office to give the required notice of such applications, and admitted that the first publication thereof was made on the 1st day of August, 1914, and admitted that such application covered all of the ground embraced within the side lines of said Salt Lake No. 3 lode as alleged in the complaint, but denied that any of the said acts were without right, but, on the contrary, alleged that all of them were rightful and in accordance with law.

The defendant further denies that by his said application for patent, or by said entry, or in any other way, he wrongfully or without right entered upon any of the portion of the 'so-called' Guy Davis placer, as set forth in the complaint, but, on the contrary, alleges that he is and at all the times mentioned was the owner of and entitled to the possession of all of the ground covered by the adverse claim of the plaintiffs. And by his answer the defendant as a further defense alleges:

(1) That the plaintiffs and each of them are and were at all the times mentioned in the complaint residents and citizens of the state of Nevada, and the defendant a resident and citizen of the state of Utah, and over the age of 21 years.

(2) That the amount involved in the action is over $3,000, exclusive of interest and costs.

(3) That on or about February 2, 1897, the grantors of the defendant, then being citizens of the United States and over the age of 21 years, were, and ever since that date the defendant and his said grantors have been, the owners, in the actual possession of, and entitled to the possession of, the said Salt Lake No. 3 lode mining claim.

(4) That he has and claims the legal right to occupy and possess said Salt Lake No. 3 lode mining claim, by virtue of a full compliance with the local laws, rules, and customs of miners in said mining district, the laws of the United States, and of said state of Nevada, by pre-emption, purchase, and subsequent transfer, and by actual prior possession as a lode mining claim located upon the public domain of the United States.

(5) That on or about February 2, 1897, the grantors and predecessors in interest of the defendant, being then citizens of the United States, entered upon its then unappropriated public domain and located the Salt Lake No. 3 lode mining claim, by then and there marking the boundaries thereof as required by law, and ever since said date the defendant and his grantors were, until September 5, 1913, in the quiet and undisputed possession of said lode mining claim, and during all of said time, and for more than 16 years, the defendant and his grantors and predecessors in interest were in the open, notorious, adverse, and undisputed possession of said mining claim, holding, working, and living thereon; that on or about September 6, 1913, while said claim was so being held, owned, occupied, and possessed by the defendant, his grantors, and predecessors, and with full knowledge, the plaintiffs and their grantors wrongfully and without authority entered upon said lode mining claim, without the knowledge or consent of the said defendant or his grantors, and attempted to locate upon the ground embraced within the said Salt Lake No. 3 lode the Guy Davis placer claim; that by reason of the premises alleged the defendant has become and is now the owner and holder of the said ground and the whole thereof, and that the said attempted location of the plaintiffs and their grantors was and is wholly void and of no effect.

The prayer of the answer is that the plaintiffs take nothing upon their complaint, that judgment be given defendant for the possession of said Salt Lake No. 3 lode mining claim, and for costs of suit.

The reply of the plaintiffs put in issue the affirmative allegations of the answer.

In the second of the suits above entitled, being No. 2953, the pleadings are in all respects similar, except as to the property in controversy. In that action the patents applied for by the defendant to the action were for two lode claims, named, respectively, Midas and Evening Star, across the surface of which the plaintiffs and their predecessors in interest located a placer mining claim called Homestake placer, based upon which claim they filed in the land office a protest against the application of the defendant to the action and asserted their adverse claim to such placer, and in pursuance of which they filed the complaint in the district court of the state of Nevada, in and for Lander county, involved in the second of the actions above entitled.

As illustrative of the respective claims of the parties, the following diagram is inserted, together with some representations found in the record of the character of the surrounding ground (Image Omitted) (Image Omitted) (Image Omitted) The two actions were by stipulation of the respective parties thereto consolidated and tried together in the court below upon the same evidence, and resulted in a general verdict in each case in favor of the plaintiffs, together with a special verdict to the effect that there was no valid discovery of mineral within...