Snowy Peak Mining Co. v. Tamarack & Chesapeak Mining Co.

• Citation: 107 P. 60,17 Idaho 630
• Parties: SNOWY PEAK MINING COMPANY, Appellant, v. TAMARACK AND CHESAPEAK MINING COMPANY, Respondent
• Decision Date: 28 January 1910
• Court: United States State Supreme Court of Idaho

107 P. 60

17 Idaho 630

SNOWY PEAK MINING COMPANY, Appellant, v. TAMARACK AND CHESAPEAK MINING COMPANY, Respondent

Supreme Court of Idaho

January 28, 1910

MINING CLAIMS-NOTICE OF LOCATION-SUFFICIENCY-APPLICATION FOR PATENT-ADVERSE-PLEADINGS-AMENDMENT-FINDINGS.

1. Where application to amend a pleading to conform to the proof is made before the findings and decree are signed by the judge, such application is not too late, and should not for that reason be denied.

2. Where application to amend a pleading to conform to the proof is filed, it is not error for the trial court to disallow such proposed amendment where there is no proof to support the same.

3. A forfeiture of a mining claim does not occur by the mere failure to perform the assessment work for any particular year. To complete the forfeiture there must have been a relocation of such ground before a resumption of work. The right of the original location is terminated only by the entry of a new one, and resumption of work prior to the lawful inception of an intervening right prevents forfeiture.

4. In an adverse suit the plaintiff must recover upon the strength of his own title and not by reason of the weakness of the title of the applicant for patent; and the fact that a third person has made a subsequent location of all or a part of the territory covered by the location, for which patent is sought, will not avail the plaintiff in an adverse suit not based upon such subsequent location.

5. Evidence in this case examined and held to support the findings of the trial court.

6. If by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, such notice of location is sufficient.

(Syllabus by the court.)

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

An adverse suit upon application for patent. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

Henry P. Knight, and Franklin Pfirman, for Appellant.

This being an adverse suit, the burden to establish its case is upon the defendant the same as upon the plaintiff. (Rosenthal v. Ives, 2 Idaho 265, 12 P. 904, 15 Morr. Min. Rep. 324; Jackson v. Roby, 109 U.S. 440, 3 S.Ct. 301, 27 L. ed. 990; Murray Hill M. & M. Co. v Havenor, 24 Utah 73, 66 P. 762; Lee Doon v Tesh, 68 Cal. 43, 6 P. 97, 8 P. 621; McGinnis v Egbert, 8 Colo. 41, 5 P. 652; Schultz v. Allyn (Ariz.), 48 P. 960; Upton v. Santa Rita Min. Co. (N. M.), 89 P. 275.)

It is only where the ownership of contiguous claims is common that the work may be done upon one for the benefit of all so as to prevent a forfeiture. (U. S. Stat., sec. 2324; Martin's Min. Law, 174; Black Lead Lode Extension, 32 L.Ed. 595; Copper Glance Lode, 29 L. D. 542; Golden Crown Lode, 32 L. D. 217.)

Mining claims must be contiguous to allow work done on one to count for the other. (Gird v. Calif. Oil Co., 60 F. 531; Royston v. Miller, 76 F. 50; Chambers v. Harrington, 111 U.S. 350, 4 S.Ct. 428, 28 L. ed. 452; Copper Glance Lode, 29 L. D. 542.)

It is within the discretion of a court of equity to allow amendments of the pleadings at any stage of the case before the entry of a final decree. (Havlick v. Davidson, 15 Idaho 787, 100 P. 91, and cases cited.)

In actions to determine rights to the possession of land, one who is in possession under color of title or right may avail himself of an outstanding title as a defense, although he does not connect himself therewith. (15 Cyc. 65.) Weakness of plaintiff's title is a defense, as is also abandonment by plaintiff. (15 Cyc. 64.) In this character of action, each side is an actor, and defendant must show a clear right as against the government, and any evidence to show that he has not a right is admissible.

The court has found both the Monroe and Silent Friend to be valid claims. The question arises: How could the Silent Friend be a valid claim, if its discovery is within the limits of the Monroe? The findings would be and are absolutely contradictory. In such case it cannot be said that either finding is correct, or, at least, which is correct. (2 Spelling on New Trial, p. 601.)

John H. Wourms, and C. W. Beale, for Respondent.

Amendments after decision and before decree are not allowed. (Claflin v. Bennett, 51 F. 701; Blair v. Harrison, 57 F. 257, 6 C. C. A. 326.)

Mining claims are not open to relocation until the rights of a former locator have come to an end. (Belk v. Meagher, 104 U.S. 279, 26 L. ed. 735; Brown v. Gurney, 201 U.S. 184, 26 S.Ct. 509, 50 L. ed. 717; Farrell v. Lockhart, 210 U.S. 142, 28 S.Ct. 681, 52 L. ed. 994; Lockhart v. Rollins, 2 Idaho 540, 21 P. 413.)

The matter of the proposed amendment was immaterial and incompetent, in that the court was not authorized to and could not in this suit try out any conflict between the Monroe and the Indus lode. So far as this suit is concerned, all adverse claims are waived excepting the alleged conflict between the Silent Friend and the Monroe. (Lindley on Mines, sec. 742; Wight v. Dubois, 21 F. 693.)

Resumption of work at any time prior to the lawful inception of an intervening right prevents forfeiture. (Lindley on Mines, sec. 651; Oscamp v. Crystal River Mining Co., 58 F. 293, 7 C. C. A. 233.)

Where the witnesses appear and testify in a court of equity, and there is a substantial conflict in the evidence, the appellate court will not disturb the findings and judgment of the trial court. (Stuart v. Hauser, 9 Idaho 53, 72 P. 719; Commercial Bank v. Lieuallen, 5 Idaho 47, 46 P. 1020; Doe v. Vallejo, 29 Cal. 391; Silva v. Pickard, 14 Utah 254, 47 P. 144, and cases cited; Morrow v. Matthew, 10 Idaho 423, 79 P. 196.)

STEWART, J. Sullivan, C. J., concurs in conclusion, AILSHIE, J., concurring.

OPINION

STEWART, J.

On Mar. 14, 1907, the respondent, Tamarack and Chesapeak Min. Co., filed an application for patent in the local land office at Coeur d'Alene, Idaho, for the Monroe lode mining claim. Within the time prescribed by law the appellant filed an adverse suit pursuant to sec. 2326 of the Rev. Stat. of the United States, claiming title and the right to possession of the Silent Friend mining claim a portion of which it was claimed was in conflict with the Monroe mining claim. The cause was tried to the district court and findings and judgment entered in favor of the respondent. A motion for a new trial was made and overruled, and this appeal is from the judgment and from the order overruling appellant's motion for a new trial.

It appears from the record that the testimony was concluded on Nov. 13, 1908; that on June 21, 1909, the court announced in open court that he would find for the defendant, and on the following day a stipulation was entered into, upon which the court made an order extending plaintiff's time to ninety days from entry of judgment to prepare, serve and file a bill of exceptions, and to thirty days from and after judgment in which to serve and file affidavits to be used on motion for a new trial, and staying the judgment for a period of ninety days. Thereafter and on June 26, 1909, and before findings of fact and conclusions of law and the decree had been entered, the plaintiff filed a written motion for leave to amend its complaint to make the same conform, as claimed, to the evidence. The proposed amendment consisted in allegations alleging a forfeiture by the respondent of the Monroe lode mining claim by failing to perform the assessment work for the year 1898, and a relocation of the ground covered by the Monroe on Jan. 4, 1899, by one D. H. Brien as the Indus lode mining claim. The court declined to permit this proposed amendment and the ruling of the court is assigned as error upon this appeal.

Counsel for respondent contends that the court did not err in refusing to allow the amendment, first, for the reason that the amendment came too late; second, for the reason that as appellant contended that it was not necessary to plead a forfeiture, such amendment was immaterial; third, because it was immaterial whether the assessment work was done on the Monroe mining claim for the year 1898, because it appears that such assessment work was done and proof of labor filed for all years prior to 1898 and subsequent thereto; and fourth, for the reason that the location of the Silent Friend claim did not conflict with the Monroe claim; and fifth, if the Silent Friend claim did conflict with the Monroe claim at the time the Silent Friend was located, the Monroe claim was a valid, legal location and not subject to relocation as the Silent Friend, or any part of the Silent Friend, and that the failure to do the assessment work, even if not done on the Monroe claim for the year 1898, could not inure to the benefit of the Silent Friend, for the reason that the Silent Friend location being made subsequent to the Monroe was void as to that portion of the ground in conflict, because the same was not open to location at the time the Silent Friend location was made; and sixth, because any contest between the Monroe claim and the Indus claim could not be tried in an adverse suit filed by the appellant under the claim of title as the Silent Friend location.

The amendment proposed did not come too late, and should not for that reason have been disallowed. (Rev. Codes, sec. 4229; Harrison et al. v. Russell & Co., ante, p 196, 105 P. 48, and cases cited in that opinion.) We think, however, the court committed no error in disallowing such proposed amendment. It appears from the record that the Monroe mining claim was located Aug. 12, 1889, and that the Silent Friend mining claim was located Nov. 21, 1890; and even if it be conceded that the assessment work was not done on...