Sellers v. Taylor

• Decision Date: 26 July 1929
• Docket Number: 4865
• Citation: 279 P. 617,48 Idaho 116
• Parties: DAVE SELLERS and WILLIAM SELLERS, Appellants, v. W. A. TAYLOR, Respondent
• Court: Idaho Supreme Court

279 P. 617

48 Idaho 116

DAVE SELLERS and WILLIAM SELLERS, Appellants, v. W. A. TAYLOR, Respondent

No. 4865

Supreme Court of Idaho

July 26, 1929

MINES AND MINERALS-ASSESSMENT WORK-FAILURE TO PERFORM-RELOCATION NOTICES-SUFFICIENCY-PLEADING-PARTIES.

1. Where defendant, in possession of disputed mineral property filed new locations in order to make lines conform to vein of ore rather than to avoid doing annual labor, locations were not rendered invalid by reason of failure to perform required assessment work for preceding year, in view of general rule in mining states under Rev. Stats. U.S. , sec. 2324 (30 U.S C. A., sec. 28), that locator of lode mining claim who allows his location to lapse by failure to perform the required assessment work may make a new location covering the same ground.

2. Plaintiffs who made locations of mining claims with actual knowledge that ground had been claimed by defendant could not assert priority on ground that defendant's location notices were defective under C. S., sec. 5521.

3. In action to quiet title to mining claims, other interested persons not brought into litigation were not indispensable and failure to join them did not affect judgment, where it was not claimed that any of the parties were prejudiced by failure to join them.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Albert H. Featherstone, Judge.

Suit to quiet title to mining property. Affirmed.

Judgment affirmed. Costs to respondent.

Walter H. Hanson and Therrett Towles, for Appellants.

Respondent's location notices are void because they do not tie the location monuments to any natural object or permanent monument. (C. S., sec. 5521; Independence Placer Min. Co., Ltd., v. Knauss, 32 Idaho 269, 181 P. 701; Buckeye Min. Co. v. Powers, 43 Idaho 532, 257 P. 833; Upton v. Santa Rita Min. Co., 14 N.M. 96, 89 P. 275; Clearwater Short Line Ry. v. San Garde, 7 Idaho 106, 61 P. 137; Bismark Mountain Gold Min. Co. v. North Sunbeam Gold Co., 14 Idaho 516, 95 P. 14; Morrison v. Regan, 8 Idaho 291, 67 P. 955.)

The respondent's locations made on the 1st of July, 1922, are void, because he cannot lawfully abandon mining ground by failing to do the annual assessment work for the sole purpose of relocating it and thus evade the doing of the annual labor required by law to be done in order to hold the same. (2 Lindley on Mines, 3d ed., sec. 405; Costigan on Mining Law, sec. 96, p. 327; Lehman v. Sutter, 60 Mont. 97, 198 P. 1000. Contra: Rohn v. Iron Chief Min. Co., 186 Cal. 703, 200 P. 644.)

Respondent's co-owners were necessary parties to a full determination of this action. (C. S., sec. 6657; Murray Hill Min. Co. v. Paragon Min. Co., 43 Idaho 20, 248 P. 446.)

H. J. Hull, for Respondent.

This court held in Bismark Mountain Gold Min. Co. v. North Sunbeam Co., 14 Idaho 516, 95 P. 14:

"The object of the law in requiring the locations of mining claims to be made with reference to some natural object or permanent monument is for the purpose of directing attention in a general way to the vicinity or locality in which the mining claim was to be found.

"While there has been some diversity of opinion in some states as to the definiteness and certainty required by the provisions of said section, the more recent decisions are more liberal in the construction of said provisions; and we think the correct rule is stated in Farmington Gold & Copper Co. v. Rhymney Gold & Copper Co., 20 Utah 363, 77 Am. St. 913, 58 P. 832, where it is said, 'If by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient.'"

It is the general rule that when the court cannot say from an inspection of the notices that the description is an impossible or an uncertain one, it may be admitted in evidence; and its sufficiency will then be presumed until the contrary is shown by competent evidence. (Eilers v. Boatman, 111 U.S. 356, 4 S.Ct. 432, 28 L.Ed. 454; Dillon v. Bayliss, 11 Mont. 171, 27 P. 725; Smith v. Cascaden, 148 F. 792, 78 C. C. A. 458; Hammer v. Garfield M. & M. Co., 130 U.S. 291, 95 S.Ct. 548, 32 L.Ed. 964.)

The supreme court of California in the recent case of Rohn v. Iron Chief Min. Co., 186 Cal. 703, 200 P. 644, goes to the extent of holding that the locator may relocate his own ground, even though it be for the purpose of evading annual assessment work.

The supreme court of California in that case, the supreme court of Utah in Warnock v. DeWitt, 11 Utah 324, 40 P. 205, and the supreme court of Washington in Legoe v. Chicago Fishing Co., 24 Wash. 175, 64 P. 141, have all discussed the rule laid down by Mr. Lindley at length, and with very clear logic have refused to follow his reasoning and have upheld the procedure followed by respondent.

WM. E. LEE, J. Budge, C. J., and Givens, T. Bailey Lee and Varian, JJ., concur.

OPINION

WM. E. LEE, J.

This action was begun by appellants, plaintiffs below, to quiet their possessory rights to certain mining claims known as the "Clarke," "Larson" and "Featherwood," located by them on August 12, 1922, in the Eagle Mining District of Shoshone county. Defendant denied the material allegations of the complaint and, by way of cross-complaint, alleged his prior valid location of three claims which embraced the same ground. It appears that respondent, defendant below, has been in possession of the disputed ground and has performed assessment work thereon practically every year since 1906. He claims that in 1921, while doing assessment work, he found that the "vein turned and crossed the side line" of one of his claims. In view of the discovery he permitted his locations to lapse by failing to perform the assessment work and, on July 1, 1922, filed the locations in question, the "Lost Compass," "Prospect" and "Tunnel Site," to conform to the course of the vein. Appellants were acquainted with respondent and the fact of his former locations. Under the impression that he had abandoned his claims, they had the ground, covered by his claims, pointed out to them and made their locations thereon. From a judgment for defendant, this appeal is prosecuted.

Appellants argue that respondent's locations "are void, because he could not lawfully abandon mining ground by failing to do the annual assessment work for the sole purpose of relocating it and thus evade the doing of the annual labor required by law to be done in order to hold the same," relying on 2 Lindley on Mines, 3d ed., sec. 405, Costigan on Mining Law sec. 96, p. 327, and Lehman v. Sutter, 60 Mont. 97, 198 P. 1100. The texts cited may be said to support appellant. The Montana decision holds that under sec. 2289 of the Revised Codes of that state, one may relocate his mining claim for any purpose except to avoid the doing of the annual assessment work. None of the courts, it seems, has followed the two text-writers. On the contrary, it is the general rule in the mining states, under sec. 2324 of the United States Revised Statutes, that the locator of a lode mining claim, who allows his location to lapse by failure to perform the...