Richen v. Davis

• Decision Date: 25 May 1915
• Citation: 148 P. 1130,76 Or. 311
• Parties: RICHEN ET AL. v. DAVIS.
• Court: Oregon Supreme Court

148 P. 1130

76 Or. 311

RICHEN ET AL. v. DAVIS.

Supreme Court of Oregon

May 25, 1915

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Suit to quiet title by D. E. Richen and another against Titus E Davis. Decree for plaintiffs, and defendant appeals. Affirmed.

This is a suit to quiet title to an unpatented mining claim covering the S.E. 1/4 of the S.E. 1/4 of the S.W. 1/4 of section 29 township 9 south, range 37 east, W. M., containing approximately 10 acres of placer ground near Sumpter, Or. The circuit court rendered a decree in favor of the plaintiffs and the defendant appeals.

John L. Rand, of Baker, for appellant. William Smith and M. D. Clifford, both of Baker (Geo. E. Allen, of Sumpter, on the brief), for respondents.

BEAN J.

The plaintiffs base their claim to the mining ground upon a location made April 27, 1905, by plaintiff D. E. Richen and one Wm. H. Kitchen, under the name of the Kentucky Placer Mining Claim; a proper record having been made afterward. The rights of Kitchen under the location have since been acquired and are now held by plaintiff Haley. The defendant claims the ground under a location as a placer claim made by him June 26, 1914, notice of which was duly recorded. The answer admits the location made in 1905, under which the plaintiffs claim. It is the contention of defendant Davis that no work in assistance of extracting the mineral from the ground was done upon the property by Richen and Kitchen between 1905 and 1914, when it was located by him. He states that no work was done "to my satisfaction." In his behalf it is asserted that the clearing of brush and timber on the premises during 1913 was for the purpose of obtaining firewood, and that the only use made of the land was residing upon it and using it for pasture. All parties admit it to be placer ground and valuable for mining purposes. The main question for determination is: Was the land unappropriated or open to relocation when Davis attempted to relocate it June 26, 1914 or had the claim of plaintiffs been kept alive by the proper amount of assessment work being done during the year 1913 or before defendant posted and recorded his notice?

Placer mining claims are subject to entry and patent under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims; but, where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands. Section 2329, U.S. R. S. (Comp. St. 1913, § 4628). Local rules and regulations of miners and state statutes are recognized as controlling when not in conflict with laws of the United States, subject to certain requirements, among which are the following: The location must be distinctly marked on the ground so that its boundaries can be readily traced. On each claim, until a patent has been issued therefor, not less than $100 worth of labor shall be performed, or improvements made during each year. Upon failure to comply with the conditions required--

"the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location." Section 2324, U.S. R. S. (Comp. St. 1913, § 4620).

It is claimed that, in fulfillment of the requirements of the last-named section, the plaintiffs performed the requisite amount of labor during the year 1913, and were at work upon the claim at the time Davis attempted to make his entry. The proof submitted fairly substantiates this claim of plaintiffs. It seems that, for several years after the location in 1905, interest in mining was at a low ebb, and but little work was done on the claim. In recent years the Powder River Dredge Company has been operating a dredge in the immediate vicinity of the premises in controversy. The officers of the company drilled seven holes to bedrock near the line of this ground in order to prospect the same, and imparted to Mrs. Richen, who appears to be the moving spirit on the plaintiffs' side, the information that, to dredge the claim and obtain the gold, it would be necessary, first, to clear away the timber, brush, and coarse débris thereon. The land is comparatively level, having a fall of only 1 per cent.; too flat for successful hydraulic mining. The evidence shows that plaintiffs had peaceable possession, and that the following work was done in good faith by them during the year 1913:

William Baker worked 14 days, for which he received .. $ 42 00

Fitchner worked in April and May ....................... 20 00

Fitchner worked 16 days in the fall .................... 40 00

Mose Smith, December 31st ............................... 3 00

Mrs. Richen, 24 1/2 days and some nights at $1.25 ...... 30 70

_______

Making a total shown by the evidence.................. $135 70

The above was for the purpose of preparing the ground for dredging and extracting the mineral. Considerable labor was also performed by them during the early part of 1914, before defendant initiated his claim. It is shown that the work performed in 1913 was worth more than the estimated cost; that about 1 1/2 acres of the land was cleared; and that the same was worth from $125 to $175 per acre. Some land in that district, somewhat similar, has been cleared at an expense of $200 per acre. Defendant does not deny that work was done on the claim during the time mentioned, but asserts that it was not mining work. This allegation he has failed to establish. On the other hand, the evidence preponderates in favor of the fact that the more profitable and practical way of extracting the mineral is by means of a dredge, and that, in order to do so, it is absolutely necessary to clear off the brush and timber. It appears that a portion of the land was covered with a thick growth of brush, some larger timber, and considerable débris which had been deposited by the river during high water. In his evidence defendant pictures the open land, and minimizes the brush, timber, and débris formerly on the claim. He asserts that the brush was only cut away to make room for the ax in cutting the timber for firewood, but the evidence shows otherwise. What we deem a fair statement comes from one of the defendant's witnesses, Mr. S. S. Terrill, to the effect that 4 1/2 or 5 acres, about half of the tract, were originally in brush, and now only 1 or 1 1/2 acres; that they cut the brush "tolerable clean" during the last few years. It is evident that more than $100 worth of labor has been bestowed in reducing the acreage of brush and timber.

Davis undertook to make a relocation of the claim, and it devolves upon him to show that the rights of the prior locators, Mrs. Richen and the assignee of Kitchen, have expired by abandonment, forfeiture, or for other causes. 27 Cyc. 601. This burden he assumed in this case, but failed to support his claim by proof.

It is shown on the part of plaintiffs that the ground was appropriated on June 26, 1914. Mrs. Richen and Haley being at work on the claim at that time, the land was not then subject to relocation. Bishop v. Baisley, 28 Or. 119, 41 P. 936, and cases there cited.

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