Swanson v. Koeninger
| Decision Date | 24 December 1913 |
| Citation | 137 P. 891,25 Idaho 361 |
| Parties | CHARLES SWANSON, Appellant, v. ROBERT KOENINGER, Respondent |
| Court | Idaho Supreme Court |
MINING CLAIMS-EXCESSIVE SIZE OF CLAIM-CONFLICT BETWEEN LOCATION NOTICE AND MONUMENTS-IRRECONCILABLE VARIANCE.
1. The locator of a mining claim cannot maintain ownership to a greater length in either direction along the ledge or lode than is called for in his notice of location.
2. The general principle that in case of conflict between the location notice and the boundaries of a mining claim, as marked by the stakes on the ground, the stakes control applies so far as there is no substantial variance between such stakes and the description in the notice of location.
3. The rule that in the location of mining claims monuments should control the courses and distances is recognized only in cases in which the monuments are clearly ascertainable and can be definitely located.
4. It is contrary to the policy and spirit of the mining laws to permit a mining claim of excessive size to be staked, thereby affording an opportunity for the stakes to be shifted by the locator so as to include ground proved to be rich in mineral through the development of adjoining ore bodies.
5. Where the call in a location notice is as follows "Claiming from this discovery notice and cut or shaft 1,000 feet in a southeasterly direction and 500 feet in a northwesterly direction," while from a map on file it appears that the lode line runs almost due north 780 feet from the discovery and 620 feet in a southeasterly direction to the southerly end line of the claim, the description given is so erroneous as to be delusive and misleading, inasmuch as the description in the notice and the markings upon the ground do not even approximately agree, and there is a fatal divergence between such description and the markings of the claim upon the ground.
APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.
Action to quiet title to mining property. Reversed.
Judgment reversed. Costs awarded to appellant.
Edwin Snow and J. G. Hedrick, for Appellant.
The fundamental variance between the location notice of the True Friend and the survey is fatal so far as the conflict with Silver Bullion No. 2 is concerned. (Flynn Group Min. Co v. Murphy, 18 Idaho 275, 138 Am. St. 201, 109 P. 851.)
Where the courses and distances are not with certainty defined by monuments or stakes, the calls in the location notice must govern and control. (Treadwell v. Marrs, 9 Ariz. 333, 83 P. 355.)
"The boundaries of a mining claim are fixed by the original location, consisting of recording and notice, planting stakes, etc., and not by subsequent recognition of different boundaries." (Overman Silver Min. Co. v. American Min. Co., 7 Nev. 312.)
"If there is a doubt as to the monuments, there can be no reason for holding that the monuments should prevail." (Thallman v. Thomas, 102 F. 953.)
"Boundaries marked upon the ground should substantially conform to the location indicated by the discovery monument and notice of location in order that the monument should control."
"The object of the law in requiring the location of a mining claim to be marked upon the ground is to fix the claim and prevent swinging or floating, so that those who in good faith are looking for unoccupied ground in the vicinity of previous locations may be able to ascertain exactly what has been appropriated in order to make their locations upon the residue." (Book v. Justice Min. Co., 58 F. 106; Daggett v. Yreka Min. etc. Co., 149 Cal. 357, 86 P. 968.)
Sullivan, Sullivan & Baker and Frank Reeves, for Respondent.
Stakes control over the distances in the location notice.
This has already been decided by the supreme court of this state in Nichols v. Lewis & Clark Mining Co., 18 Idaho 232, 109 P. 846, wherein this court held: "Indeed, the general rule prevails that courses and distances give way to the actual monuments and markings on the ground." Flynn Group Min. Co. v. Murphy, 18 Idaho 276, 138 Am. St. 201, 109 P. 851, relied upon by appellant, is not in point. In the case at bar there is no excess ground, as the True Friend is a short claim, containing less than eighteen acres, and was staked less than 1,500 feet in length. This court has not held, and has certainly not intended to hold, that where a claim has been staked in good faith and a mistake has been made in the distances each way from the discovery, but where there is less ground actually staked than is allowed by law, any portion of the claim is void. In such a case it is not a question of excess, but simply one of variation between calls in the notice and monuments on the ground.
This is a suit adverse to the mineral patent of the defendant's mining claim, called the True Friend. Upon the filing of the map and field-notes of the survey of this claim for patent, the plaintiff Swanson filed suit, setting up his claim to two certain areas thereof respectively, in conflict with defendant's claim, the Silver Bullion and Silver Bullion No. 2. The Silver Bullion is admittedly a senior location to the True Friend, while the Silver Bullion No. 2 is admittedly a junior location. Upon the trial of this cause without a jury before the district court of the fourth judicial district, in and for Blaine county, the court awarded to the plaintiff the area in conflict between the Silver Bullion and the True Friend, evidently on the ground of the seniority of the former. But with respect to the second and larger area in conflict between plaintiff's claim Silver Bullion No. 2 and the True Friend claim of the defendant, the court decided that title to such area should be quieted in the defendant, evidently also upon the ground of the seniority of the location. From this portion of the judgment the plaintiff appeals.
Stated generally the errors assigned are:
1. That the court erred in not holding and deciding that appellant was the owner of and entitled to the possession of that portion of the True Friend mining claim in conflict with the Silver Bullion No. 2.
2. That the court erred in holding and deciding that the respondent was entitled to a patent to that portion of the True Friend mining claim in conflict with said Silver Bullion No. 2.
3. That the court erred in not holding and deciding that the patent survey of the True Friend mining claim, so far as it included the area in conflict with said Silver Bullion No. 2, did not correctly represent and include the True Friend mining claim as located.
It is stipulated that there are three claims involved in this action, the Silver Bullion and Silver Bullion No. 2, owned by the plaintiff, and the True Friend, owned by the defendant. To avoid proving the locations of these three claims, the stipulation covered certain facts, such as, that the locators were citizens of the United States; that they discovered a vein or lode of quartz or other valuable rock, in place bearing gold, silver, lead, etc.; that the land located was unoccupied mineral land of the United States (except the areas in conflict, which was to be determined by the evidence); the actual staking of the claims (except the points where the stakes were set); the size and markings of the posts; the posting of notices of location and their contents; the recording of the notices; that assessment work had been done at all times since the location thereof, and the stakes kept up in accordance with the law (except as to the location of the points where they were kept up); that the respective parties were the owners of the different claims as alleged, and had had possession of their claim or claims since the location thereof (except the areas in dispute, which was to be determined from the evidence).
The location notice of the True Friend claim is in part as follows:
"Claiming from this discovery notice and cut or shaft 1,000 feet in a southeasterly direction and 500 feet in a northwesterly direction . . . . adjoining on the northerly end the Independence and the Silver Bullion lodes, situated in the Warm Springs Creek Mining District, Alturas County, Idaho Territory."
The real question before the court, stripped of verbiage, is the locality of the True Friend location, in so far as there is a conflict with the Silver Bullion No. 2 claim, the claim of respondent being that the location of the stakes upon this claim should govern the calls in the notice. Appellant quotes at length and seems to rely upon the case of Flynn Group Min. Co. v. Murphy, 18 Idaho 266, 138 Am. St. 201, 109 P. 851, which seems to be in point in this case, although going to the extreme limit to which the court is inclined at this time to go upon that question. In that case the court sa...
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...only where the monuments or stakes can be clearly ascertained, otherwise the description in the location notice controls. Swanson v. Koeninger, 25 Idaho 361, 137 P. 891; Tiggeman v. Mrzlak, 40 Mont. 19, 105 P. 77; Flynn Group Min. Co. v. Murphy, 18 Idaho 266, 109 P. 851, 138 Am.St. Rep. 201......
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... ... who are in good faith looking for unoccupied mineral ground ... of what has already been appropriated. (Swanson vs ... Koeninger, 25 Idaho 361, 137 P. 891; Flynn Group ... Mining Co. vs. Murphy, 18 Idaho 266, 109 P. 851, 138 Am ... St. 201; Nichols vs ... ...