Strasburger v. Beecher
| Decision Date | 26 July 1897 |
| Parties | STRASBURGER et al. v. BEECHER. |
| Court | Montana Supreme Court |
Appeal from district court, Yellowstone county; George R. Milburn Judge.
Action by Nathan J. Strasburger and others against Samuel A Beecher. From a judgment in favor of defendant, and from an order denying a motion for new trial, plaintiffs appeal. Reversed.
Appeal from a judgment and order denying plaintiffs' motion for a new trial. The motion was heard upon a statement of the case, to which were attached specifications of error. The action was brought to determine the right of possession of a piece of mineral land, 530x1140 feet, situated in the New World mining district, Park county, Mont. The case has already been before this court. Hoffman v. Beecher, 12 Mont. 489, 31 P. 92. The respondent (defendant) filed his application for a patent upon the Silver Queen mining claim. Appellants (plaintiffs) claimed adversely, and contended that the mineral land sought to be patented by the defendant was altogether within the boundaries of their mining claim, known as the "Lake Superior Claim." The defendant denied that the Silver Queen, or any part of it, was within the boundaries of the Lake Superior claim; and in his answer raised the issues of the discovery by the plaintiffs location, and forfeiture for nonperformance of the annual labor between the 1st of January, 1883, and the 1st of January, 1885. The principal errors assigned by plaintiffs and appellants are alleged erroneous rulings upon the admission of testimony, and the insufficiency of the evidence to justify the findings of the court. The case was tried before the judge, sitting without a jury, and a judgment entered for the defendant.
Luce & Luce, for appellants.
E. C Day and J. A. Savage, for respondent.
HUNT J. (after stating the facts).
We will first consider the assignment of error that the evidence is insufficient to justify the findings and decision of the court. The respondent argues that this question is not before this court for review, because the appellants' specifications consist of averments and conclusions of counsel as to what the evidence shows, and that such conclusions are mere statements opposed to the findings of the court, and that, therefore, section 1173 of the Code of Civil Procedure has not been complied with. But we are of the opinion that there is a sufficient assignment or specification of the particulars in which the evidence is insufficient to justify the finding and decision of the court to the effect that the plaintiffs did not perform the requisite amount of labor upon the Lake Superior mining claim from the time of the location thereof, in the year 1882, to the time of the commencement of this suit. The plaintiffs' specification in this respect was as follows: "The evidence was insufficient to prove, and the defendant did not allege nor prove in any manner, that less than $100 worth of labor had been performed and improvements made during each and every year upon said Lake Superior mining claim, from the time of the location thereof, in the year 1882, to the time of the commencement of this action by the plaintiffs, their grantors and predecessors in interest, or any of them; and the evidence was insufficient to prove, and the defendant did not allege nor show, any failure on the part of the plaintiffs, or any of them, or their grantors or predecessors in interest, or either of them, to comply with the conditions that one hundred comply with the dollars' worth of labor should be performed and improvements made during each year upon said Lake Superior claim; and the testimony was insufficient to prove, and the defendant did not allege nor prove, that in the year 1884 the plaintiffs or their grantors or predecessors in interest did not perform one hundred dollars' worth of improvements, on said Lake Superior quartz lode mining claim; and the evidence was insufficient to prove, and the defendant did not prove in any manner, that said Lake Superior quartz lode mining claim, or any part thereof, or any of the surface ground thereof, was open or subject to relocation or to any location on the 1st day of January, 1885, or at any other date or time since June 23, 1882; and the evidence was insufficient to prove that said Jaycox and Davis, the alleged locators of said Silver Queen claim, or either of them, did ever locate of relocate said claim, or any part thereof, in any manner."
The case of Bank v. Roberts, 9 Mont. 323, 23 P. 718, disapproved of specifications which declared that the evidence showed certain enumerated facts or conclusions which were contrary to what the jury found. The court held that a specification should point out the variance between the facts found by the jury is not sustained by the evidence, with the particulars in which the evidence is insufficient to justify the finding. We have no hesitation in affirming what the court there said. Furthermore, much that was laid down is applicable to several specifications, other than the one quoted, in the case at bar; for in them it is declared that the evidence proved that on, etc., which declaration is followed by a resume of the conclusions of counsel as to what was proved on the trial of the case. All such specifications are to be condemned, because, as was held in Bank v. Roberts, supra, this simply puts the appellate court upon an inquiry, as between the conclusions of the judge and the opinion of appellant, as to what the evidence shows. But, in the specification quoted above, the appellants do designate a particular material fact in relation to labor performed upon the Lake Superior mining claim, and do aver that the finding of the court that a requisite amount of labor had not been performed upon the said mining claim was not justified by the evidence in the case, because the defendant did not show any failure on the part of the plaintiffs to comply with the conditions required to be performed. If there is a designation of a material fact, at issue, and a specification that there was a failure to prove that designated fact in any manner by the party whose duty it is to prove it, we believe it is sufficient to enable the court to examine whether the finding complained of is sustained by the evidence. Believing, therefore, that the particular specification was sufficient, we shall consider the evidence bearing upon that point in the case.
The great weight of the evidence is that one Edward Hayes made a valid discovery and location of the Lake Superior claim on June 23, 1882, and filed notice of location in the office of the county recorder of Gallatin county on August 31, 1882. Experienced miners testified that Hayes discovered mineral, galena and pyrites of copper, where he put his discovery stake, on the westerly part of the Lake Superior, near the center; that, in their opinion, the mineral rock was in place; that Hayes was working on the claim in June, 1882, in a cut 10 or 12 feet long, and extracted some two or three hundred pounds of ore about that time, which was from rock in place. It also appears that Hayes sufficiently and properly marked and located his claim, and that the notice of location was good and valid. By conveyances and decrees of court, dated in 1882, 1883, and 1886, the plaintiffs proved record title in themselves. We shall therefore pass at once to the question of the alleged forfeiture for non representation in the years 1883 and 1884.
The plaintiffs introduced an original affidavit of Elias Superling, one of the plaintiffs herein, sworn to on September 22, 1884, and filed on September 27, 1884, with the recorder of the New World mining district, to the effect that at least $100 worth of work had been performed on the Lake Superior lode claim between August 1 and September 1, 1884 and that said expenditure was made by Elias Sperling and others in interest. Plaintiffs also read in evidence another affidavit of Elias Sperling, sworn to on September 22, 1884, to the effect that $100 worth of work had been performed on the Lake Superior and a like amount on other claims in 1884. These affidavits were admitted without objection. Plaintiffs also read a deposition of Elias Sperling, one of the plaintiffs in this suit. Sperling testified that he had known the Lake Superior claim since 1882, and that time he saw improvements made on the ground by an open, deep cut,...
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