Thompson v. Underwood

• Citation: 211 S.W. 164,138 Ark. 323
• Decision Date: 07 April 1919
• Docket Number: 178
• Parties: THOMPSON v. UNDERWOOD
• Court: Supreme Court of Arkansas

211 S.W. 164

138 Ark. 323

THOMPSON v. UNDERWOOD

No. 178

Supreme Court of Arkansas

April 7, 1919

Appeal from Polk Circuit Court; J. S. Lake, Judge; affirmed.

Judgment affirmed.

Prickett & Pipkin, for appellant.

1. The court erred in refusing defendant's request for a directed verdict because (1) plaintiff failed to prove that the property claimed was unappropriated Government lands at the time of his attempted location. U. S. Rev. St., § 2319; (2) plaintiff had leased the claims to J. D. Budd and his associates for twenty-five years before this suit for possession and had no right to sue for possession. (3) The notices posted and recorded do not contain a sufficiently definite description of the claims as to render them capable of identification and were not recorded in time so as to give notice. The county is not stated nor is the township stated north or south, or the range, whether east or west. An "oak tree" or a "pine tree" is not definite enough, as there are many of each, and such a description is not sufficiently descriptive of natural objects. On the evidence there was no case for a jury, and a verdict should have been directed.

Norwood & Alley, for appellee.

1. It was proven that the land was unappropriated United States land.

2. The claims were merely leased to Budd et al. on a royalty. Appellee did not sell and he was still the owner and entitled to the possession.

3. The location notices were recorded in Polk County, and this was sufficient to put any one on notice that the land was in that county. The law does not require location notices of mining claims to give section, township or range. It only requires that the name of the locator and date of location be given and such a description by reference to some natural object or permanent monument as will identify the claim. U. S. Rev St., § 2324.

4. The notices identified the claims by reference to trees and piles of stones, a blazed tree at the point where notices are posted and three corner stakes at stated distances is sufficient to enable a surveyor to ascertain the claims. 115 F. 531; 114 Idaho 516; 95 P. 14. The blazed trees and stone piles were sufficient. 130 U.S. 291; 37 P. 480; 33 Id. 675; 80 Id. 736; 63 Id. 856; 13 Ann. Cas. 518; 55 C. C. A. 626; 13 P. 543.

4. Appellant can not take any advantage of any defect in the notice, because he claims that he never saw it and was not misled, for Ashcraft told him about the locations and he had notice of them. 93 C. C. A. 84. The sufficiency of the notice was a question for the jury and the verdict is conclusive, as there was no error in the instructions. 111 U.S. 356.

OPINION

HUMPHREYS, J.

On September 18, 1918, appellee instituted suit against appellant in the Polk Circuit Court to recover possession of lands in Polk County, under alleged valid mining location claims. In substance, it was alleged in the complaint that the lands claimed were unappropriated Government lands in May, 1918, at which time appellee and I. H. Howard located two manganese mining claims on said lands in accordance with law, and designated them as claim No. 2 on the Ada lode, and claim No. 7 on the Orvil lode; that the mining claim location notices posted on the Ada manganese lode and filed with the district recorder were as follows:

"Notice is hereby given that the undersigned, having complied with the United States mining laws and the location regulations has located mining claim No. 2, on the Ada manganese lode or vein beginning at oak tree and running 1,500 feet north of east and 300 feet on each side of the center of the lode or vein, including all dips, spurs, angles and parallel veins within said boundary. Corners northeast pile of stone, northwest pile of stone, southwest pile of stone, southeast pile of stone, bounded on north, east, west and south by United States Forest Reserve. Situated in section 24, township 3, range 31, Mining District, County of , State of Arkansas.

"Located 5/21, 1918. W. P. Underwood Locator."

That the mining location claim notice posted on the Orvil manganese lode and filed with the district recorder was the same in form and substance as the aforesaid notice, except the beginning point was at a pine tree, instead of an oak tree; that, after appellee had done all the things necessary to establish valid mining claims, appellant took unlawful possession of the lands in question, under the pretense of being a locator thereof, with full knowledge at the time he went upon the lands that the claims thereon had been previously located by appellee.

Appellant filed answer, denying that appellee was entitled to possession of the lands under valid mining locations, or that the descriptions contained in the mining location notices were sufficiently definite for identification, or that he was in the unlawful possession of said lands, or that he entered into the possession of them with knowledge, or notice, that appellee had laid valid mining claims upon them.

The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, upon which a verdict was returned in favor of appellee and judgment rendered in accordance therewith...