Sturtevant v. Vogel

• Decision Date: 01 February 1909
• Docket Number: 1,576.
• Citation: 167 F. 448
• Parties: STURTEVANT v. VOGEL et al.
• Court: U.S. Court of Appeals — Ninth Circuit

167 F. 448

STURTEVANT v. VOGEL et al.

No. 1,576.

United States Court of Appeals, Ninth Circuit.

February 1, 1909

The plaintiff in error brought ejectment against the defendants in error to recover the possession of a placer mining claim. On July 23, 1903, the defendants in error joined in the location of the Lillian Association claim, containing about 152 acres, and made discovery of gold thereon. There was evidence that they properly marked the boundaries of the claim, and that they placed on the initial stake their location notice, describing the claim by reference to the boundaries, and that this location notice remained there until January, 1905. On July 24, 1903, they duly recorded their location notice, but the notice was insufficient, in that it contained no description of the claim with reference to natural objects or permanent monuments so as to identify it. On November 5, 1904, the plaintiff in error located a claim, consisting of 20 acres within the boundaries of the Lillian Association claim. At that time there was no one visibly in possession of the Lillian, and the evidence is undisputed that the plaintiff in error at the time of making his location had no knowledge of the prior location, and was not notified thereof until about November 20, 1904. In his reply to the answer of the defendants in error, the plaintiff in error alleged that in the year 1903, and since, there was and has been a uniform, well-known custom among the miners and prospectors in the Cape Nome mining recording district in which the premises in controversy are situated, requiring that the notice of location of any mining claim be filed for record and recorded within 90 days after the location, and that a failure to record within that time leaves the premises free, vacant, and open for location as if the ground had never been formerly located. The notice posted on the Lillian was as follows: 'Notice is hereby given that the undersigned citizens of the United States have this day located and claim the following described placer mining ground, together with all the water and timber rights thereon, to wit: Commencing at the initial stake marked No 1, of Lillian group, upon which a copy of this notice is posted, thence running 2,640 feet in an easterly direction to stake No. 2 of Lillian group, thence 2,640 feet in a westerly direction to stake No. 10 of Lillian group, thence 2,640 feet in a southerly direction to initial stake. Stake No. 1 adjoins S.E. corner stake of Dead Eye placer claim 180 feet east from line of Wild Goose Telephone opp. ninth pole south from intersection of said telephone line, with Pioneer Mining Co. telephone line. Stake No. 10 lies 60 ft. S.E. from 5th pole on Wild Goose line north of said intersection, 150 acres, and situated on Wonder creek or river, which is a tributary of Center; thence Snake River, in the Cape Nome Mining District, District of Alaska. This claim shall be known as Lillian Association placer mining claim. Located this 23 day of July, A.D. 1903. ' Upon the evidence and the instructions of the court, the jury returned a verdict for the defendants in error.

John Rustgard, W. H. Metson, Campbell, Metson, Drew, Oatman &amp Mackenzie, and E. H. Ryan, for plaintiff in error.

Albert H. Elliott and William H. Packwood, for defendants in error

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The plaintiff in error contends that, both by the laws of Alaska and the custom of the miners, the recording of the location notice within 90 days after location is essential to the life of the location, and that a failure to so record the same results in the forfeiture thereof. But one witness was called to prove the alleged custom of the miners, and his testimony falls short of showing the existence of any custom or regulation adopted by the miners, in the district where the claim is located, making the recording of the notice of location essential to the right to hold the same. The court in charging the jury said that such a custom can only be binding when established by clear and satisfactory evidence, and that no custom which may require the recording of a location certificate is good and valid in law unless it carries with it a provision that for noncompliance therewith the location shall be forfeited and void. The court further instructed the jury that the mining laws of the United States in force in Alaska, while they allow a location notice to be recorded, do not require such record as an essential to a valid location.

Section 2324, Rev. St. (U.S. Comp. St. 1901, p. 1426), provides that all records of mining claims shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim. This provision does not require that the location be recorded. It leaves the subject open to legislation by the states or to regulation by the miners. Haws v. Victoria Copper Mining Co., 160 U.S. 303, 16 Sup.Ct. 282, 40 L.Ed. 436; 1 Lindley on Mines (2d Ed.) 373, and cases there cited. It is contended that section 15, c. 786, Act June 6, 1900, 31 Stat. 327, requires that notice of the location of a mining claim shall be filed for record within 90 days of the discovery of the claim. The section requires recorders, upon the payment of fees, to record separately certain classes of instruments, such as deeds, mortgages, certificates of marriage, wills, official bonds, etc., including affidavits of annual work done on mining claims, notice of mining locations and declaratory statements; and in subdivision 11 it adds to the list such other writings as are required or permitted by law to be recorded, including the liens of mechanics, laborers, and others: 'Provided, notices of location of mining claims shall be filed for record within ninety days from the date of the discovery of the claim described in the notice.'

This statute permits the recording of instruments. It contains no positive enactment that any of the enumerated instruments shall be recorded, nor does it provide that the failure to record any instrument shall work a forfeiture of rights thereunder. Obviously by the terms of this statute an unrecorded deed is not rendered invalid as between the parties, nor does the mere failure to record a mining location work a forfeiture thereof. We are therefore not called upon to decide the question, discussed by counsel, whether a statutory requirement that the location notice be recorded is mandatory or merely directory.

In the decisions of Montana relied upon by the plaintiff in error, we do not find support for his contention that, under the law of Alaska, failure to record location notice should be held to work a forfeiture of a mining claim. In King v. Edwards, 1 Mont. 235, the question for decision was whether the failure to perform the prescribed amount of work upon a claim resulted in forfeiture. The court found that it was generally considered, among the miners of the district in which the claim was situated, that such a failure would have that effect, and said that:

'Where a custom is plain, there is no room for construction, and the court must take it as it reads and give it its legal effect.'

In Baker v. Butte City Water Co., 28 Mont. 222, 72 P. 617, 104 Am.St.Rep. 683, the question was whether the trial court had erred in excluding from the evidence the location notice of the defendant's claim. The Supreme Court affirmed the right of the Legislature to provide rules for the marking of the boundaries of mining claims, and for the record thereof, and to specify what the recorded paper must contain, and held that, since the notice failed to comply with the statute, it was not admissible in evidence. The decision in that case was affirmed in Butte City Water Co. v. Baker, 196 U.S. 119, 25 Sup.Ct. 211, 49 L.Ed. 409, in which the court answered the contention of the plaintiff in error, that the provisions of the Montana statute were too stringent and conflicted with the liberal purpose manifested by Congress in its legislation respecting mining claims, by saying:

'We do not think that they are open to this objection. They certainly do not conflict with the letter of any congressional statute; on the contrary, are rather suggested by section 2324. It may well be that the state Legislature, in its desire to guard against false testimony in respect to a location, deemed it important that full particulars in respect to the discovery shaft and the corner posts should be at the very beginning placed of record.'

The trial court, in instructing the jury, relied upon a line of decisions of the Supreme Court of California and of the federal courts in this circuit. In McGarrity v. Byington, 12 Cal. 426, the court said:

'The failure to comply with any one of the mining rules and regulations of the camp is not a forfeiture of title. It would be enough to hold the forfeiture as the result of noncompliance with such of them as make noncompliance a cause of forfeiture.'

That decision was cited and followed by Judge Sawyer in Jupiter Min. Co. v. Bodie Con. Min. Co. (C.C.) 11 F. 666. In English v. Johnson, 17 Cal. 108, 76 Am.Dec. 574, the court said:

'But in the absence of any rule declaring that a failure to record avoided the entry or claim, we cannot see that this failure, when actual possession was taken by the claimant and kept-- no forfeiture or abandonment shown-- would avoid the claim as against a subsequent entry and location in due form.'

In Bell v. Bed Rock Co., 36 Cal. 219, the court said:

'The failure of a party to comply with a mining rule or regulation cannot work a forfeiture unless the rule itself...