Smith v. Newell

• Decision Date: 21 March 1898
• Docket Number: 191.
• Citation: 86 F. 56
• Parties: SMITH v. NEWELL et al.
• Court: U.S. District Court — District of Utah

86 F. 56

SMITH v. NEWELL et al.

No. 191.

United States Circuit Court, D. Utah.

March 21, 1898

Booth Lee & Gray and Morris L. Ritchie, for plaintiff.

Brown &amp Henderson and D. C. McLaughlin, for defendants.

MARSHALL District Judge.

This suit is brought in pursuance of an adverse claim filed in the land office under section 2326 of the Revised Statutes of the United States, by the plaintiff, who claims to own the Alta Belle mining claim, against the application of the defendants for a patent for the Dutchman lode. The plaintiff's claim was located on May 25, 1894; the defendants', on January 1, 1889. It is not contended that the Dutchman lode was abandoned, or subject to forfeiture for failure to do the required annual work thereon; but the right of the plaintiff to recover depends on the establishment of the original invalidity of the Dutchman location. That no valid location of the Dutchman was made is claimed on three grounds: (1) That the claim was not marked on the ground, so that its boundaries could be readily traced; (2) that the record of the claim did not contain such a description of it as to identify it; (3) that at the time of the location of the Dutchman the premises were not subject to the location, but constituted a part of the Black Rock No. 1 and the Black Rock No. 2 claims. These objections will be considered in their order.

1. The evidence shows that on January 1, 1889, the locators of the Dutchman placed at each corner of the claim substantial stakes, about 4 feet high and 4 inches in diameter. Similar stakes were also placed at the discovery point of the claim, and at a point on the northwest side line, and a point on the southeast side line thereof. The shape of the claim as marked, was approximately a parallelogram. On the discovery stake, and on a tree about 20 feet therefrom, were nailed notices of location, written on paper which contained the name of the claim, the date of location, the names of the locators, and an attempted description of the claim. The claim was on a ridge, and, while there were some trees on it the evidence does not show that they were thick, or that there was any difficulty in seeing the corner stakes. It is said that the stakes should have been marked with the name of the claim. This was not necessary, unless the boundaries could not have been readily traced without it. The relative positions of the stakes showed their connection, and indicated a parallelogram. The location notice, nailed on the discovery stake, and placed within this parallelogram, gave all of the information that marks on corner stakes would have given. I think the claim was sufficiently marked on the ground, within the most exacting decisions on the subject. Book v. Mining Co., 58 F. 106-113; Southern Cross Gold & Silver Min. Co. v. Europa Min. Co., 15 Nev. 383; Warnock v. De Witt, 11 Utah, 324, 40 P. 205. Having been once so marked, the right of the locators thereto would not be affected by the obliteration of the marks, or the removal of the notice without their fault. Jupiter Min. Co. v. Bodie Consol. Min. Co., 11 F. 666; Book v. Mining Co., 58 F. 106-114.

2. A more serious question is presented by the second objection to the location. The location was made while Utah was a territory, but there was no statute of the territory governing the locating or manner of recording. Under the authority given them by section 2324 of the Revised Statutes of the United States, the miners of Uintah mining district had made regulations on the subject, article 5 of which was as follows:

'In order to locate a claim of a ledge, lead, lode, or deposit of rock or ore supposed to contain mineral, the locator shall first conform to the United States laws regarding mineral lands, passed May 10, 1872, and shall place a written or printed notice of the same upon the ground so claimed a true copy of which shall be filed for record with the recorder of this district within ten (10) days of the date of such location, or such location shall be deemed void and of no effect.'

On January 1, 1889, the locators filed with the recorder of the district a true copy of the written notice of location placed by them on the ground located, and which was as follows:

'Notice is hereby given that the undersigned, having complied with the requirements of section 2324 of the Revised Statutes of the United States, and the local rules, customs, and regulations of this district, has located 1,500 feet in length by four hundred feet in width on this, the Dutchman lode, vein, or deposit, bearing gold, silver, and other precious metals, situated in the Uintah mining district, Summit county, Utah, the location being described and marked on the ground as follows, to wit: Commencing at the discovery, which is 100 feet southerly of the southeasterly end line and center of Toronto location, and 100 feet southerly of said discovery is placed post No. 1; thence 1,400 feet, to post No. 2; thence 4, to post No. 3; thence 1,400 feet in a northerly, to post No. 4; thence 100 feet northerly, to post No. 5; thence 400 feet southerly, joining with the southwesterly end line of the Toronto, to post No. 6; thence 100 feet southwesterly, to post No. 1, the place of beginning. The mining claim above described shall be known as the 'Dutchman.' Located this first day of January, 1889. Names of locators: D. C. McLaughlin, 375 feet; John Kennedy, 375 feet; Frank James, 375 feet; Henry Newell, 375 feet.'

The description of the claim as contained in the notice was incorrect in the following particulars: There was no southeasterly end line of the Toronto location, and the discovery was situated S., 44 deg. 21 min. W., 222.8 feet distant from the center point of the southwesterly end line of the Toronto location, instead of 100 feet southerly therefrom, as called for. From post 2 to post 3 was approximately 400 feet, while the call was '4.' From post 3 to post 4, and from post 4 to post 5, the call was 'northerly'; the true course, N., 56 deg. E. From post 5 to post 6, the call was 'southerly, joining with the southwesterly end line of the Toronto'; the true...