Slothower v. Hunter

• Decision Date: 18 December 1906
• Citation: 15 Wyo. 189,88 P. 36
• Parties: SLOTHOWER v. HUNTER ET AL
• Court: Wyoming Supreme Court

88 P. 36

15 Wyo. 189

SLOTHOWER v. HUNTER ET AL

Supreme Court of Wyoming

December 18, 1906

ERROR to the District Court, Carbon County, HON. DAVID H. CRAIG Judge.

Aaron Slothower having applied through the United States Land office for a patent to a mining claim, an adverse claim was filed by F. E. Hunter, R. F. Jones, H. L. Kuykendall and A M. Woodruff, and they brought suit in support of such adverse claim. From a judgment awarding the plaintiffs a portion of the ground, the defendant prosecuted error. The facts are stated in the opinion.

Case remanded.

Charles E. Winter, for plaintiff in error.

The judgment is erroneous in adjudging title in Woodruff jointly with the others in the absence of evidence showing that he ever had an interest either by location, discovery or purchase in two of the claims upon which the adverse was based. The evidence fails to support the judgment as to the boundaries of the contested claims. A locator does not lose his rights through the removal of the stakes by others marking the boundaries of his claim. (Lindley on Mines, 375.)

It was error to admit in evidence the location certificate of the Adelaide lode, since it failed to comply with the statute in the matter of description. The land had been surveyed, and hence the section or quarter section corners should have been referred to. State laws not repugnant to the Federal Statute are to be complied with in making mining locations. (Lindley on Mines, 329, and cases cited.)

An unpatented mining claim--a mere prospect with but little work done upon it--is worthless as a monument for reference in describing another claim. The cases holding that a mining claim is not a sufficient permanent monument for purposes of description show the better reasoning and should be followed. (Morrison's Min. Rights (10th Ed.), 49; Baxter v Patterson, 3 P. 741; Drummond v. Long, 13 P 543; Gilpin Co. v. Drake, 8 Colo. 586; Brown v. Levan, 46 P. 661.) Moreover, the description in the Adelaide certificate is indefinite even by the reference, since it contains nothing as to dstance from the mines named. (Brown v. Levan, supra; Upton v. Larkin, 17 P. 728; Metcalf v. Prescott, 25 P. 1037; Gamer v. Glenn, 20 P. 658; Duncan v. Felton, 61 Pa. 244; Riste v. Morton, 49 P. 656; Kinney v. Fleming, 56 P. 723; Morrison v. Regan, 67 P. 955; McCann v. McMillan, 62 P. 33; Seidler v. Lafave, 20 P. 789.) The "Little Joe" certificate was clearly inadmissible, for want of sufficient description. The record of the deed from plaintiff in error was inadmissible. It did not appear that the record had any reference to the ground in controversy. The burden of showing its relevancy was upon the party offering it. (17 Cyc., 1111.) Had the plaintiff in error transferred his title pending the proceedings, it would not have interfered with the suit in any way. The validity of such transfers is recognized by the Land Department. They do not deprive parties of their right to patent.

McMicken & Blydenburgh, for defendants in error.

The evidence was clear that the four plaintiffs owned the adverse claims, and that a mining partnership existed between them. The oral testimony by which these facts were established may not have been the best evidence, but it was received without objection and cannot now be complained of as incompetent or inadmissible. (Sentman v. Gamble, 69 Md. 304; Spencer v. Pearce, 10 Gill & J., 294; Slingluff v. Volk, &c., Co., 43 A. 759; Blowers v. Ry. Co., 50 S.E. 19; Ashe v. R. Co., 65 S. C., 134; Webb v. Sweeney, 69 N.Y. 200; Rapson v. Leighton, 73 N.E. 540; Damon v. Carroll, 163 Mass. 404; Boyle v. Columbian, &c., Co., 182 Mass. 93; Allen v. Fuller, id., 202; Brighton v. Buffington, 184 id., 401; 5 Curr. L., 1370, and cases cited; Columbian Min. Co. v. Dutchess Min. Co., 13 Wyo. 244.)

The fact that a location certificate is not recorded within the statutory time does not render it void where no intervening rights have accrued. (Preston v. Hunter, 67 F. 996; Zerres v. Vanine, 134 F. 610; Min. Co. v. Min. Co., 13 Wyo. 244.) Mineral ground cannot be considered as upon surveyed ground prior to the approval of the survey, and until such approval it would be unsafe to describe a claim by reference to such survey. Reference to section corners in such case is, therefore, not required. A description of a claim by reference to another known mine is sufficient. A mine will be considered a permanent monument until the contrary appears. (Morrison v. Regan, 67 P. 956; Seidler v. Lafave, 20 P. 789; Kinney v. Fleming, 56 P. 723; Branlett v. Flick, 57 P. 869; Wells v. Davis, 62 P. 3; Min. Co. v. Old S. Co., 63 P. 587; Book v. Min. Co., 58 F. 106; Min. Co. v. Min. Co., 80 P. 736; Rista v. Morton, 49 P. 656; M. Co. v. Hammer, 8 P. 153; Hammer v. M. Co., 130 U.S. ___; Smelting Co. v. Min. Co., 95 F. 911; Talmadge v. St. John, 62 P. 79; Min. Co. v. Min. Co. , 13 Wyo. 244.) In suits in support of adverse claims it is not only necessary for the plaintiff to sustain his contentions by preponderance of evidence, but the defendant must also prove his own title, as the government is also a party to the case.

The admission of the record of defendant's deed even if erroneous does not constitute prejudicial error, since it was evidently not considered in the disposition of the case. The evidence fully justifies the judgment rendered by the trial court upon every controverted point.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

The plaintiff in error made application at the United States Land Office for a patent to the Big Divide lode mining claim. The defendants in error filed an adverse to such application, setting up that the mineral survey of the Big Divide lode took in certain portions of the Little Joe, Adelaide and Little Wonder lode claims, of which they claimed to be the owners, and within the time prescribed by statute brought this suit in support of their adverse claim in the District Court of Carbon County. To prove his record title, the plaintiff in error introduced in evidence a certificate of location of the Great Divide lode mining claim dated August 5, 1897, and recorded November 3, 1897; an amended certificate of location by himself and E. A. Rust of the same claim dated November 1, 1899, and recorded November 6 of the same year; a certificate of location by L. S. Neice, F. A. Neice and Guy Neice of the Big Divide lode, which is said to be a re-location of the Great Divide, dated January 1, 1903, and recorded February 18, 1903. The rights acquired under the location by the Neices were acquired by purchase as appears from the deeds introduced in evidence conveying their interests to plaintiff in error. To prove record title in them the defendants in error introduced in evidence the original location certificates respectively of the Little Joe, Adelaide and Little Wonder. For convenience, reference is here made to the plat, defendants in error's exhibit "D," which was admitted in evidence and is a part of the record.

[SEE PLAT IN ORIGINAL]

1. It is urged and assigned as error that the judgment is contrary to law. It is claimed by plaintiff in error that the corners designated H, G, E and A were originally located at the points 1, 2, 3 and 4, respectively, and marked the boundary of the Great Divide as originally located.

Assuming that the original and amended location certificates of the Great Divide were in accordance with the requirements of the statute, the application is to patent the Big Divide, a claim which had no existence until January 1, 1903, the date of its location. The certificate of location of the Big Divide by the Neices recites, "Beginning at corner No. 1, the 'Big Divide' claim is a re-location of the Great Divide claim (abandoned), said Big Divide lode claim using and appropriating stakes and original survey of the Great Divide lode claim (abandoned)." It appears that this location is of an abandoned claim and not an amendatory certificate to correct imperfections in the record title of a claim already in existence. Indeed, the Neices, so far as the record shows, were prior to their location of the Big Divide strangers to the title to the ground embraced within the limits of the Great Divide. By electing to patent the Big Divide, Slothower adopted its location certificate as the basis of and as the inception of his title. The introduction in evidence of the location certificates of the Great Divide was competent as showing the boundaries of the Big Divide by reference, but could not establish title to the ground in controversy antedating the location of the latter. The possessory title initiated by the Neices by their location of the Big Divide was what they conveyed to Slothower, and the title so conveyed was antagonistic to and destructive of any former title which was held by the latter. The recital in their certificate of location to the effect that it "is a re-location of the Great Divide (abandoned)" was an admission that the latter claim had once a legal existence for there could be no abandonment when there was nothing to abandon. (Blain v. Wills, 5 N.M. 238, 20 P. 798.) The purchase of the outstanding title of the Neices would quiet the title, if any, which Slothower had in and to the Great Divide upon proceedings to patent the latter and the only theory upon which the Neices' re-location can be valid for any other purpose is that Slothower and his joint re-locator, Rust, had abandoned the Great Divide. It cannot be contended upon the record that the Neices could upon application for a patent for the Big Divide have claimed any rights, antedating their re-location, based upon a title which they had destroyed by such re-location. (Cheeseman v. Shreeve, 40 F. 787.) And Slothower, their grantee, having...