Sharkey v. Candiani

• Decision Date: 01 May 1906
• Citation: 85 P. 219,48 Or. 112
• Parties: SHARKEY et al. v. CANDIANI et al.
• Court: Oregon Supreme Court

85 P. 219

48 Or. 112

SHARKEY et al. v. CANDIANI et al.

Supreme Court of Oregon

May 1, 1906

Appeal from Circuit Court, Lane County; J.W. Hamilton, Judge.

Action by Frank C. Sharkey and others against C.F. Candiani and others. Decree for defendants, and plaintiffs appeal. Affirmed.

This cause having been reargued, the opinion heretofore announced which has not been published, will be changed to accord with the view now entertained. This is a suit by Frank C. Sharkey Louis Zimmerman, Fred E. Sharkey, and N.B. Standish, against C.F. Candiani, Caesar Marco, and J.J. Tyler, to determine the right of possession of certain mineral land. The complaint states that the defendants secured a survey of what they designated as the "Doctor" lode in the unorganized mineral district of Blue River, Lane county, and applied for a United States patent therefor, whereupon plaintiffs interposed an adverse claim to a part of the premises included in such survey, and instituted this suit, alleging inter alia, that they were in possession of the Louise and Lucky Boy No. 4 quartz mining claims, which were prior locations, the validity of which had been maintained detailing the manner thereof and showing wherein the Doctor lode conflicted with such claims. The answer having denied the material allegations of the complaint averred that plaintiffs had abandoned all interest in the premises inconsistent with the boundaries of the Doctor lode, and that by reason of their conduct they ought to be estopped to assert any claim thereto, setting out the facts which, it is asserted, constituted the alleged impediment which the law raises to preclude the maintenance of this suit. The allegations of new matter in the answer having been denied in the reply, the cause was referred, and from the testimony taken the court found that the defendants, by reason of plaintiffs' conduct, were entitled to the possession of the premises in dispute, and having rendered a decree in accordance therewith, the plaintiffs appeal.

Zera Snow, for appellants.

L. Bilyeu and C.A. Hardy, for respondents.

MOORE, J. (after stating the facts).

It is contended by plaintiffs' counsel that an error was committed in refusing to strike from the transcript much of the testimony given by defendants' witnesses, because it was taken out of the jurisdiction of the trial court, without an order to that effect. The statute authorizes a court, when a suit is at issue upon a question of fact, to refer the cause, and also to appoint a special referee for the purpose of taking testimony of witnesses residing more than 20 miles from the place of holding court. B. & C. Comp. § 827. This suit was begun and tried in Lane county, and the referee appointed therein, without an order of special reference went to Multnomah county, where, over objection and exception of plaintiffs' counsel, the testimony of defendants' witnesses was taken. These witnesses, however, were cross-examined before such referee by plaintiffs' counsel, who thereafter, in Lane county, offered testimony in rebuttal thereof. In Brush v. Mullany, 12 Abb. Prac. (N.Y.) 344, it was insisted that a referee appointed in one county in New York could not, without special appointment, take the testimony of witnesses in any other county of that state; the court holding that an objection interposed on that ground went to the jurisdiction of the referee, and intimating that it was doubtful whether or not an indictment of perjury would lie against any of the witnesses who were sworn before him outside the county in which he was appointed. In that case, however, a default by all the defendants having been entered, the cause was referred and the testimony taken in their absence, thus precluding the implication of a waiver. In Blevins v. Morledge, 5 Okl. 141, 47 P. 1068, an objection was interposed that a trial before referees was conducted outside the jurisdiction of the court, and it was held untenable where the point was not raised in the court below. It is fairly to be implied from the decision in that case that an objection to the taking of testimony by a referee, outside the jurisdiction of the court appointing him, could be waived by the parties. In New York a reference ordered by a court of special and limited jurisdiction requires the reference take the testimony within such jurisdiction. Bonner v. McPhail, 31 Barb. (N.Y.) 106. Where, however, attorneys stipulate that a referee appointed by a surrogate in a county of that state may take the testimony of witnesses in another county therein, and an order to that effect is entered, it cannot be subsequently attacked, on the ground of a want of jurisdiction, by a party who appeared before the referee in such other county and there participated in the proceeding had therein before such referee. In re Davenport (Sur.) 74 N.Y.Supp. 740. In the case at bar, though plaintiffs' counsel objected and excepted to the taking of the testimony by the referee in Multnomah county, they nevertheless participated therein by cross-examining the witnesses produced by the defendants. To strike from the transcript the testimony so taken would be to permit plaintiffs to speculate on securing a decree in their favor, but, failing in this respect, now to insist that an error was thereby by committed, would be allowing them to take advantage of an irregularity which, in our opinion, they voluntarily waived; the want of jurisdiction being only to the person.

Considering the case on its merits, the transcript shows that prior to November, 1899, the plaintiffs and J.W. Moore and G.A. Dyson, as tenants in common, were in possession of the Louise and Lucky Boy No. 4, and other quartz-mining claims in the Blue River district upon which improvements have been made of the value of about $40,000; the property being treated as one mine, which is known as the "Lucky Boy Group," and was under the supervision of the plaintiff Frank C. Sharkey as managing partner. A statement of the means adopted by plaintiffs to secure a title to their claims is not deemed essential, for a patent from the United States having been executed to them therefor, except as to the premises in conflict, is conclusive of all the facts necessary to establish the validity thereof as against a party claiming adverse rights. Anderson v. Bartels, 7 Colo. 256, 3 P. 225; Iron Silver Mining Co. v. Campbell, 17 Colo. 267, 29 P. 513; Uinta Tunnel Co. v. Creede Mill Co., 119 F. 164, 57 C.C.A. 200; Last Chance Mining Co. v. Bunker Hill, etc., Co., 131 F. 579, 66 C.C.A. 299; Smelting Co. v. Kemp, 104 U.S. 636, 26 L.Ed. 875; Calhoun Gold Mining Co. v. Ajax Gold Min. Co., 182 U.S. 499, 21 Sup.Ct. 885, 45 L.Ed. 1200. The defendant Candiani having been advised by Zimmerman to go to the Blue River mining district and secure a quartz claim, accepted from him a letter of introduction which, in November, 1899, he presented at the mines to Frank C. Sharkey, who showed him and his associate, one G.B. Perelli, every attention possible. After remaining plaintiffs' guests several days, Candiani and Perelli went to a tunnel on one of the claims, known as the "Gold Dollar," where they saw Dyson, who, in answer to their inquiry as to whether or not there was any mining property that could be secured in that vicinity, informed them that vacant public land could be found just above the place where he was working, showing them the northeast and northwest corners of the Gold Dollar claim. Perelli, going a few feet north of the boundary of such claim, prospected the ground, and returning to the tunnel wrote a location notice, calling the premises the "Doctor" claim. Dyson signed his name as a witness to the notice, which was posted on the stub of a tree on the claim selected. The day being very stormy, Dyson agreed to mark on the ground the boundaries of the Doctor claim, and Candiani and Perelli in a day of two thereafter left the mines without informing the superintendent of the locaton they had made. Candiani, on returning to Portland, however, told Zimmerman that he had established a claim joining the Gold Dollar. In the winter of 1899 or 1900, Dyson and Standish made some markings of the Doctor claim, for which service Candiani sent the former by Zimmerman $10 in payment thereof, but when this money was delivered, Zimmerman did not know that Dyson had indicated any line on the Doctor claim.

The statute of this state in force when Candiani attempted to establish the Doctor lode required the locator of a mine before the expiration of 90 days from the date of posting the notice of selection of mineral land, to sink a discovery shaft upon his claim to the depth of 10 feet, or deeper, if necessary, to show a vein of mineral deposit in place. Laws 1898, p. 17, § 3. No work having been done on the Doctor claim within the time prescribed, Candiani returned thereto and posted thereon another notice, of which the following is a copy, to wit: "Notice is hereby given that Charles F. Candiani, a citizen of the United States of America, conforming to the mining laws thereof, and of the state of Oregon, and the local rules, regulations and customs of miners, has located, and by this notice do relocate, claim known as the Doctor lode or mining claim, said claim being discovered on the 16th day of November, 1899, and do claim 960 feet on this lead, lode or vein, bearing mineral in place, by 600 feet in width, the same being 300 feet on each side of the center thereof, together with all dips, spurs and angles and all other veins or lodes the top or apex of which lie within said boundaries, situate in Blue River Mining District, county of Lane, state of Oregon, said location being described and marked on the ground as follows, to wit: From this notice of location running 300 feet in a westerly...