Seidler v. Lafave.

• Decision Date: 29 January 1889
• Citation: 20 P. 789,5 N.M. 44
• Parties: SEIDLERv.LAFAVE.
• Court: New Mexico Supreme Court

5 N.M. 44

20 P. 789

SEIDLER

v.LAFAVE.

Supreme Court of the Territory of New Mexico.

Jan. 29, 1889.

Appeal from district court, Sierra county; HENDERSON, Judge.

Ejectment by Charles Seidler against Amwood Lafave. Verdict and judgment for defendant, and plaintiff appeals.

In an action of ejectment to recover possession of a mining claim, where the location notice refers to certain natural objects and monuments with sufficient certainty to identify the claim, but it does not appear from the notice whether such objects and monuments are of a permanent nature, the notice is sufficient, and it was error to exclude it; and parol evidence is admissible to show that the natural objects and monuments referred to in the notice are in fact permanent, within the meaning of section 2324, Revised Statutes, United States, requiring that the location notice of a mining claim shall contain such description of the claim located, by reference to some natural object or permanent monument, as will identify the claim, and the court below also erred in refusing to admit it.

Elliott, Pickett & Elliott, for appellant.

Masterson & Woodward, for appellee.

BRINKER, J.

This was an action of ejectment to recover the possession of a certain mining claim known as the “Miner's Dream.” On the trial, the plaintiff offered in evidence the location notice, which is in these words:

“NOTICE.

“NOV. 10TH, 1880.

“We, the undersigned, have this day located and claim 1,500 feet along this lead, and 300 feet on each side of the center. This claim commences at the north-east corner of the Iron King mine, and extends along the eastern boundary of the Iron King claim, in a southerly direction to the south-east corner of the Iron King Mine; thence 600 feet, in a neasterly direction, to a monument of stone; thence 1500 feet, in a northerly direction, to a monument of stone; thence 600 feet, in a westerly direction, to the point of beginning.

“This notice is placed in a monument of stones, built at the point of discovery, about 400 feet south from the north end center monument of the claim. This claim is situated on the eastern slope of the Black range, about 12 miles west of Hillsborough, on a branch of the Las Puercas river. It joins the Iron King on the east, and the Mountain Chief on the south, district unnamed, county supposed to be Grant, territory of New Mexico. This claim shall be known as the ‘Miner's Dream.’

“Locators:

E. L. DOHENY.

D. S. MILLER.

THOMAS GRADY.

TIMOTHY CORCORAN.

JAMES DELANY.”

“ Territory of New Mexico, County of Grant-ss.: Field for record in my office, Nov. 23d, 1880, at 1 P. M., recorded in Book 3, Mining Locations, pages 245 and 246. R. V. NEWSHAM, Probate Clerk.

“By E. COSGROVE, Deputy.”

To its introduction the defendant objected, for the following reasons: “ First, because it is void for insufficiency as a location, and that it fails to properly describe a mining claim; second, because it is not made in accordance with section 2320 of the Revised Statutes of the United States; third, because said location notice fails to designate either natural objects or permanent monuments, so that the location claim can be accurately determined and located; fourth, because said location is not made in accordance with section 1566 of the Compiled Laws of New Mexico, in this: that it fails to distinctly mark the location of said mining claim on the ground, so that its boundaries may be readily traced by reference to some natural object or permanent monument that will identify the property attempted to be located in said notice.”

The court sustained the objection, and excluded the notice, and the plaintiff excepted.

The plaintiff then offered to prove in connection with the notice, by parol testimony, that the north-east and south-east corners of the Iron King mine, referred to in the notice, were monumented when the Miner's Dream was located, and the notice posted on the claim. To this the defendant objected, for the reason that the location notice should stand on its own merits, and could not be modified or changed by parol testimony. The objection was sustained, and the plaintiff excepted.

No further testimony being offered, the court directed a verdict for the defendant. A verdict was accordingly returned, and judgment rendered for defendant. A motion for a new trial was made and denied, and the case comes here by appeal.

The only question for our determination is the propriety of the rulings of the court in excluding the location notice, and the parol testimony offered, in connection with it, to show that the corners of the Iron King mine, referred to in the notice, were monuments when this claim was located. The notice offered in evidence in this case is called in the United States Statutes a record. In order to make a valid record under the statute, it is necessary that it contain the name or names of the locator or locators; the date of the location; and such description of the claim located, by reference to some natural object or permanent monument, as will identify the claim. Rev. St. U. S. § 2324; North Noonday Min. Co. v. Orient Min. Co., 6 Sawy. 311, 1 Fed. Rep. 522; Jupiter Min. Co. v. Bodie Con. Min. Co., 7 Sawy. 96, 11 Fed. Rep. 666. A natural object is well understood, and includes trees, prominent buttes or hills, the confluence of streams, the point of intersection of well-known gulches, roads, and ravines. Wade, Min. 113; Quimby v. Boyd, 6 Pac. Rep. 462. But what will be sufficient to meet the statutory requisite of a permanent monument, in all cases, has not been definitely settled. This question has been considered in the following cases:

In North Noonday Co. v. Orient Co., 6 Sawy. 311; 1 Fed. Rep. 522, it was said that the monument need not be on the claim, although it might be, and it might consist of a prominent post or stake firmly planted in the ground, or of a shaft sunk in the ground. This was reiterated in Jupiter Min. Co. v. Bodie Con. Min. Co., 7 Sawy. 96, 11 Fed. Rep. 666. In Quimby v. Boyd, supra, it is said that natural objects and permanent monuments are general terms, susceptible of different shades of meaning, depending largely upon their application. The reference in the notice in this case was to a tree, and the court held it good, as a natural object, and declined to follow a decision of the commissioner of the general office that a tree was not sufficient.

In Cross, etc., Min. Co. v. Europa Min. Co., 15 Nev. 383, the notice called for stone monuments at each corner of the claim, and described it as bounded by four other claims. This was held sufficient in itself. Whether the monuments mentioned in the notice were designated in it as “permanent” monuments does not appear from the decision.

In Faxon v. Barnard, 2 McCrary, 45, 4 Fed. Rep. 702, the notice contained no reference whatever to a natural object or permanent monument, and it was held insufficient.

In Mining Co. v. Patterson, 3 Pac. Rep. 741, (decided by this court in 1884,) the description in the notice was: “Situated on Baxter mountain, west of Baxter gulch, bounded on the west by Homestake lead, on the south end by Silver Cliff claim, on the north end by Rip Van Winkle claim.” The court held this notice insufficient, and sustained the court below in excluding evidence offered to show that the claims referred to in the notice had upon their boundary lines lasting and permanent monuments.

The statute requires a reference in the record to a permanent monument, but it does not indicate what that monument shall be, nor where it shall be, located, whether on or off the claim, nor whether at the point of beginning in the description, or any intermediate point. The only essentials are that it be a monument permanent in its character, and referred to in such manner as will identify the claim; that is, the monument must be of such character as to permanence, and the reference to it in the notice must be so definitely made, that a prospector, or other person looking for mineral deposits, could, with the aid of the notice, find the...