Swanson v. Kettler

• Citation: 105 P. 1059,17 Idaho 321
• Parties: CHARLES SWANSON, Appellant, v. NANCY M. KETTLER et al., Respondents
• Decision Date: 30 November 1909
• Court: Idaho Supreme Court

105 P. 1059

17 Idaho 321

CHARLES SWANSON, Appellant, v. NANCY M. KETTLER et al., Respondents

Supreme Court of Idaho

November 30, 1909

MINING CLAIM-LOCATION-WHEN RELOCATION IS VALID-ADVERSE SUIT.

1. Where sufficient annual assessment work is done on a particular claim to represent such claim, and contention is made by a junior locator that the work was done for the purpose of representing several claims, and for that reason was insufficient to represent the particular claim, in determining the sufficiency of the work the court will apply the labor shown to have been done to the particular claim upon which the work was done.

2. Mineral ground covered by a valid location becomes segregated from the public domain and is the property of the locator and so long as the locator complies with the laws of the United States and the state and local regulations, such locator has the exclusive right and enjoyment to all the surface included within the lines of the location against all the world; and during such time such ground so segregated is not open to location by another, and any relocation of such ground during such time is void.

3. In an adverse suit, under the provisions of sec. 2326, U.S. Rev Stat., a person who has initiated a right to a mining claim recorded his location notice and performed the other acts made necessary by law, and who makes application for a patent, will be entitled to a patent unless adverse rights are set up in the mode provided by the section.

4. A senior locator, possessed of a paramount right in mineral land for which a patent is sought, may abandon such right and thereby render the ground covered by such location subject to relocation before the expiration of the statute of limitations prescribed, within which the annual labor must be performed.

5. Ground embraced in a mining location may become a part of the public domain so as to be subject to another location before the expiration of the statutory period for performing annual labor, if at the time when the junior location was made there had been an actual abandonment of the claim by the first locator; but at the time such junior location is made the ground must be open to location under the mineral laws of the United States.

6. Upon application for patent a junior locator, as against the senior locator, or a third location as against the junior location, may show that the ground covered by the senior location had become a part of the public domain so as to be subject to relocation, even before the expiration of the statutory period for performing the annual labor, by showing that there has been an actual abandonment of the claim by the first locator.

7. In an application for a patent by a junior locator, upon failure of the senior locator to adverse, it will be presumed that there was no senior location, and that at the time the junior location was made the ground was open to entry under the mineral laws of the United States; but where it also appears that there is a third location made subsequent to the junior location, such third locator may adverse the application for patent by the junior locator, and show that the junior location is void because at the time it was made the ground was not open to location under the mineral laws of the United States.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. Edward A. Walters, Judge.

Application for patent to mineral ground by appellant. Respondent adverses. Judgment for respondent. Affirmed.

Judgment affirmed. Costs awarded to the respondent.

John M Zane, and Stockslager & Bowen, for Appellant.

A relocation under the law is merely a new location of ground formerly held but abandoned. When one claim is abandoned and another located, all rights are determined with reference to the new location. (Cheesman v. Shreeve. 40 F. 787; Van Valkenburg v. Huff, 1 Nev. 142; Lavagnino v. Uhlig. 198 U.S. 443, 25 S.Ct. 716, 49 L. ed. 1119.)

No rights being claimed by the Emma location, they are deemed waived, and any ground included thereunder would necessarily inure to the Independence No. 2. (Lavagnino v. Uhlig, 198 U.S. 443, 25 S.Ct. 716, 49 L. ed. 1119.)

To make a valid claim it would be necessary to have a discovery upon vacant ground; if this were done, then the location would be a valid claim, and if it overlapped any other prior claim, and such prior claim was afterward abandoned, then such overlapping area inured to the otherwise valid location. (Lockhart v. Farrell, 31 Utah 155, 86 P. 1077.) In Farrell v. Lockhart, 210 U.S. 142, 28 S.Ct. 681, 52 L. ed. 994, the court expressly affirmed the case of Lavagnino v. Uhlig. Nowhere does the court even intimate overruling the point decided by them, in Lavagnino v. Uhlig. The point decided in Lavagnino v. Uhlig was exactly the point in issue here, and the court held that the owners of the Yes You Do, an 1897 location, could not defeat the Uhlig in 1889 by the alleged fact that when the Uhlig was located there then existed the Levi P. which was not subject to forfeiture until 1897.

Abandonment is a question of intention to be determined upon all the facts. It means the voluntary giving up of an estate. It operates instanter and may occur at any time, even after full compliance with the laws regarding annual labor. (Lindley on Mines, 2d ed., secs. 643, 644.)

When Anderson, Warren and Swanson located and established the discovery of the Independence No. 2 on January 3, 1889, re-establishing the east end line of Independence No. 1, it was unquestionably their intention to voluntarily abandon give up and surrender the 175 feet fraction containing the discovery of the Independence No. 2, as a part of the original Independence. That being so, it became a part of the public domain, and was subject to location as such. (Farrell v. Lockhart, supra; Kinney v. Fleming, 6 Ariz. 263, 56 P. 723; Murley v. Ennis, 2 Colo. 300; Weill v. Lucerne M. Co., 11 Nev. 200; St. John v. Kidd, 26 Cal. 263.)

Sullivan & Sullivan, McFadden & Brodhead, and Frank Reeves, for Respondents.

Even if it were intended that the work performed on Emma No. 2 in 1888 should be for the benefit of other claims also, and the amount was insufficient to protect all, it would be applied by the court to the claim on which it was actually performed. (Fredericks v. Klauser, 52 Ore. 110, 96 P. 679.)

A location on land covered at the time by another valid and subsisting location is void as to the overlapping portion, not only against the prior locator but against all the world. (Belk v. Meagher, 104 U.S. 279, 26 L. ed. 735; 1 Lindley on Mines, ed. 1897, sees. 337-363; 1 Morrison Min. Rep. 510; Barringer & A., Mines & Min., p. 306; 1 Snyder on Mines, sec. 572; Martin's Min. Law & L. O. Proc., secs. 197-282; Costigan on Mining Law, 151; Gwillim v. Donnellan, 115 U.S. 45, 5 S.Ct. 1110, 29 L. ed. 348; Del Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U.S. 55, 18 S.Ct. 895, 43 L. ed. 72; Clipper M. Co. v. Eli M. Co., 194 U.S. 226, 24 S.Ct. 632, 48 L. ed. 944; 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; Book v. Justice Min. Co., 58 F. 128; Zerres v. Vanina, 134 F. 614; Anderson v. Caughey, 3 Cal.App. 22, 84 P. 223; Nash v. McNamara, 30 Neb. 114, 93 P. 405; Moorhead v. Erie M. Co., 43 Colo. 408, 96 P. 253; Lozar v. Neill, 37 Mont. 287, 96 P. 343; Quigley v. Gillett, 101 Cal. 469, 35 P. 1040; Montagne v. Labay, 2 Alaska, 575.)

A party cannot make a valid relocation of lands legally possessed by another until the owner's rights have been abandoned, forfeited or otherwise ended. (Lockhart v. Rollins, 2 Idaho 540, 21 P. 413.) If a discovery is placed within an existing valid location, it is void. (1 Lindley on Mines, secs. 337-339; Martin's Min. Law, etc., sec. 282; Barringer & Adams M. & M., pp. 216-222; Morrison's Min. Rights, 36; Costigan on Mining Law, 152; 27 Cyc. 557; Hoban v. Boyer, 37 Colo. 185, 85 P. 837; Lockhart v. Farrell, 31 Utah 155, 86 P. 1077; Tuolumne C. M. Co. v. Maier, 134 Cal. 585, 66 P. 863; Russell v. Dufresne, 1 Alaska, 486; Atkins v. Hendree, 1 Idaho 95.)

Abandonment by senior locator of area conflicting with junior locator will not inure to benefit of the latter. (1 Lindley on Mines, secs. 363-396; Belk v. Meagher, 104 U.S. 279-285, 26 L. ed. 735; Oscamp v. Crystal R. M. Co., 58 F. 293, 7 C. C. A. 233; Pralus v. Pacific & S. M. Co., 35 Cal. 30.)

After the senior's location has been forfeited the junior should file an amended certificate if he wishes to take in part of an abandoned claim. (Morrison v. Regan, 8 Idaho 291, 67 P. 955; Moorhead v. Erie M. & M. Co., 43 Colo. 408, 96 P. 253.)

A junior locator may, subsequent to the abandonment or forfeiture of the conflict area by the senior, amend his location and include the overlapping surface; but without some act on his part manifesting an intention to make a new appropriation or acquire a new right after the abandonment or forfeiture became effectual, this area would not by mere gravity become a part of the junior location. (1 Lindley on Mines, 1st ed., secs. 363-396; Morrison's Mining Rights, 102; Johnson v. Young, 18 Colo. 625, 34 P. 173; Oscamp v. Crystal R. M. Co., 58 F. 293, 7 C. C. A. 233.)

If the discovery of a junior location is on a valid subsisting claim, or if, for any reason, the senior location was wholly void, an amended certificate would not be sufficient to cure the imperfection or to take in the area in conflict, but a relocation would have to be made. (Sullivan v. Sharp, 33 Colo. 346, 80 P. 1054; Brown v. Gurney, 201 U.S. 184, 26 S.Ct. 509, 50 L. ed. 718.)

STEWART J., AILSHIE, J. Ailshie, J., Stewart, J., concurring. Sullivan, C. J., did not sit at the hearing or...