Stemwinder Mining Co. v. Emma And Last Chance Consolidated Mining Co.

• Court: Idaho Supreme Court
• Writing for the Court: WEIR, C. J.
• Citation: Stemwinder Mining Co. v. Emma And Last Chance Consolidated Mining Co., 21 P. 1040, 2 Idaho 456 (Idaho 1889)
• Decision Date: 11 March 1889
• Parties: STEMWINDER MINING COMPANY v. EMMA AND LAST CHANCE CONSOLIDATED MINING COMPANY ET AL

21 P. 1040

2 Idaho 456

STEMWINDER MINING COMPANY v. EMMA AND LAST CHANCE CONSOLIDATED MINING COMPANY ET AL

Supreme Court of Idaho

March 11, 1889

MINING CLAIMS-DISPUTED AREA-EVIDENCE.-A certain area of mining ground was in dispute between the Stemwinder mining claim and the Emma claim. Each claimed to have made the first valid location to said area. The evidence was conflicting and presented a question of fact for the jury. Plaintiff excepted to certain evidence offered by defendant, in that it seeks to establish the location of a mining claim by parol. The court excluded the evidence. Held, the evidence should have been admitted, as it was not improper, and did not tend to prejudice the rights of plaintiff.

MEASUREMENTS OF MINING CLAIMS-VOID AS TO EXCESS.-If it is found, upon a survey of a mining claim, that the measurements of the locator are in excess of the area allowed by law, the claim is only void as to the excess.

APPEAL from District Court, Shoshone County.

Judgment affirmed with costs.

Frank Ganahl and Albert Hagan, for Appellant.

A location of a claim upon mineral lands of the United States carries with it a grant from the government to the person making the same, and confers upon such person the right to the exclusive possession and enjoyment of all the surface ground within the lines of such location. (Belk v Meagher, 104 U.S. 284.) No estate or interest in real property or in any manner relating thereto or concerning it can be created, granted, assigned or surrendered unless by an operation of law, or a conveyance or other instrument in writing, subscribed by the party. (Melton v Lambard, 51 Cal. 259; Rev. Stats., secs. 2920, 6007; Jackson v. Shearman, 6 Johns. 19; Jackson v Vosburgh, 7 Johns. 186; Garthe v. Hart, 73 Cal. 541, 15 P. 93.) It is not necessary to plead the statute of frauds to take advantage of evidence of this class when offered. (May v. Sloan, 101 U.S. 231; Dunphy v. Ryan, 116 U.S. 491, 6 S.Ct. 486; Dung v. Parker, 52 N.Y. 494; Purcell v. Miner, 4 Wall. 573.) So the amended location of the Stemwinder having been made before the Emma location had ever been properly staked or amended, the plaintiff has the only valid location on the vein. (Belk v. Meagher, 104 U.S. 284; Mining Co. v. Deferrari, 62 Cal. 160; Lakin v. Mining Co., 25 F. 337; Russell v. Brosseau, 65 Cal. 605, 4 P. 643.) A notice of location of itself is only a proof of the performance of one step in the location of a mine, the last step in perfecting the location; and even when the certificate, for any of the reasons set forth in the statute, is deemed void, it is admissible, in connection with an amended location correcting the defects of the original. (Van Zandt v. Mining Co., 2 McCrary, 159, 8 F. 725; Strepey v. Stark, 7 Colo. 614, 5 P. 111; McGinnis v. Egbert, 8 Colo. 41, 5 P. 652.) A claim located within the boundaries of another existing location is void. (Mining Co. v. Smith, 2 Dak. 399, 11 N.W. 98.) The location of a mining claim is absolutely void if the discovery be made on a claim already located; and continues void, and is not cured or made effectual by a subsequent discovery on the claim located. (Upton v. Larkin, 5 Mont. 600, 6 P. 66.) A location of a mining claim cannot be made by a discovery shaft upon any claim which has been previously located, and which is a valid location. (Little Pittsburgh Consol. Min. Co. v. Aimie Min. Co., 17 F. 57.) No rights can be acquired under the statute of location before the discovery of a vein or lode within the limits of the vein located. (Jupiter Min. Co. v. Bodie Consol. Min. Co., 11 F. 666.) No valid location of a mining claim can be made until a vein or deposit of gold, silver, etc., has been discovered. (Mining Co. v. Corcoran, 15 Nev. 147.) No location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim. Discovery of one, after location, in a different part of the claim, will not avail. (Van Zandt v. Mining Co., 2 McCrary, 159, 8 F. 725.) The statute contemplates that the location of a vein shall be along the course of the lode or vein. (Argentine Min. Co. v. Terrible Min. Co., 122 U.S. 485, 7 S.Ct. 1356.) Side lines are side lines only when they are parallel with the course of the vein. When they cross the vein they become end lines. (Mining Co. v. Tarbet, 98 U.S. 463; Argentine Min. Co. v. Terrible Min. Co., 122 U.S. 478, 7 S.Ct. 1356; Iron Silver Mining Co. v. Elgin Mining etc. Co., 118 U.S. 196, 6 S.Ct. 1177.)

Woods & Heyburn, for Respondents.

A locator, having selected his point or location, could not claim the surface of the ground to exceed three hundred feet on either side of it for the width of his claim, nor to exceed fifteen hundred feet along the course of the vein measured from the point of discovery; and if, in marking his claim upon the ground, he inadvertently or from any cause included more ground than three hundred feet on each side of his discovery, his claim would be void as to the excess. (Mining Co. v. Rose, 114 U.S. 576, 5 S.Ct. 1055.) A thing which is void from the beginning cannot be so amended as to give it validity. (Belk v. Meagher, 104 U.S. 284; Argentine Min. Co. v. Terrible Min. Co., 122 U.S. 478, 7 S.Ct. 1356.) Locations in excess of the length or width allowed by law are void only as to the excess. (Mining Co. v. Tarbet, 98 U.S. 463.) Recording notice of a mining claim is directory, and not imperative. (Jupiter Min. Co. v. Bodie Consol. Min. Co., 11 F. 666.)

WEIR C. J.

OPINION

WEIR, C. J.

This is an appeal from a judgment in favor of the defendants and against the plaintiff, entered upon the verdict of a jury, and also from an order denying a motion for a new trial. The cause of action arose in the county of Shoshone, in the first district. The complaint substantially alleges that the plaintiff is a corporation duly organized and existing under the laws of the state of Oregon, and that one of defendants is likewise a corporation organized and existing under and by virtue of the laws of the same state; that since the eleventh day of March, 1887, plaintiff has been, and is now, the owner of the premises in dispute, subject only to the paramount title of the United States, and is entitled to the possession of a certain mine and mining claim, called "Stemwinder Mining Claim," and then proceeds to set out the description of the claims of the plaintiff and of the defendants, and that the grantors of the defendants, on the sixth day of March, 1887, filed with the register of the land office an application for a patent, and in such application wrongfully, and without right, set up title to certain premises which the plaintiff claims is the property of itself, and that the suit is brought for the purpose of ascertaining the ownership of the said alleged tract of land in dispute; and then prays judgment against the defendants: (1) That the plaintiff is the owner of, and lawfully in and entitled to the possession of, the premises described--the area in conflict between the Stemwinder mining claim and the alleged Emma mining claim--and the lode therein, and quieting and confirming plaintiff's title thereto and the possession thereof; and that the defendants have no title to or right of possession of said conflicting area, or the lode therein, or any part thereof. The defendants demurred to the complaint in the action, which demurrer was overruled by the court, and the defendants were given five days in which to prepare and serve an answer. The answer, though very long, contains substantially general denial, and sets up title or claim to the premises in dispute by reason of a location thereof by certain parties, and the transfer thereof to the defendants, and that such location was prior to the location made by plaintiff's grantors; and further claims that the location under which the plaintiff claims was never, at any time, located, staked, marked, and defined in accordance with the requirements of law, if at all, until long subsequent to the aforesaid location of the Emma mining claim by the locators thereof; and that the plaintiff is not, nor has it ever been, in possession of the area so in conflict, as aforesaid. Upon these issues the case came to trial.

The plaintiff offered such evidence as it saw fit as to the location of its claim, and the defendants did the same. Strictly, there was but one issue in the case, and that was, Which of the parties made the first valid location of the area in dispute? The evidence on that point was conflicting, and presented a question of fact for the jury. Upon this question the jury rendered a verdict in favor of the defendants, and against the plaintiff, whereupon the plaintiff made a motion for a new trial upon the proper papers, which motion was denied.

The question presented for our consideration are alleged errors made by the court in the admission of certain testimony; and as to the charge made by the court to the jury; and its refusal to charge certain requests made by the plaintiff. The only exception taken to the admission of alleged improper evidence by the court was in regard to a compromise monument erected along the alleged line between the claim of the plaintiff and defendants. The defendants offered evidence to show that the compromise point was erected by agreement, not for the purpose of establishing a location, but for the purpose of showing where the location was, as it was then understood by all parties. This evidence the court, upon objection by the plaintiff, excluded, but it appears that a map used for other purposes on the trial contained upon its face the compromise monument, and that it was frequently referred to as the compromise monument, and, as so referred to, the question was really before the jury. It appears that the...