United States v. Sherman

• Decision Date: 28 March 1923
• Docket Number: 6021.
• Citation: 288 F. 497
• Parties: UNITED STATES v. SHERMAN.
• Court: U.S. Court of Appeals — Eighth Circuit

288 F. 497

UNITED STATES v. SHERMAN.

No. 6021.

United States Court of Appeals, Eighth Circuit.

March 28, 1923

E. D Barron, Asst. U.S. Atty., of Sioux Falls, S.D. (S. W. Clark U.S. Atty., of Redfield, S.D., and P. J. Tscharner, Asst U.S. Atty., of Rapid City, S.D., on the brief), for the United States.

Frank Sherman, pro se.

Before LEWIS, Circuit Judge, and POLLOCK and SYMES, District Judges.

LEWIS Circuit Judge.

The Black Hills National Forest was created by Presidential Proclamation in February, 1897 (29 Stat. 902), and enlarged in area and its boundaries extended by Proclamation in September, 1898 (30 Stat. 1783). In June, 1918, appellant, through its proper officers and agents, contracted to sell certain standing timber within the forest. When it came to marking the trees that might be cut by the purchasers appellee came upon part of the ground and claimed it as comprised within two lode claims (Oaxaca and Helamonster) to which he asserted an exclusive possessory title and right, and by threats and intimidation prevented appellant's agents from marking any trees upon the tract which he claimed or from going upon it for that purpose. Thereupon appellant filed its bill for an injunction restraining appellee from interfering with appellant's officers and agents in the premises. Appellee answered and claimed the right to exclusive possession of about 41 1/2 acres which were comprised, as he alleged, in the Oaxaca and the Helamonster lodes. He alleged the discovery of mineral-bearing quartz in place, location certificates filed, annual assessment work done, and the law fulfilled in every respect necessary to constitute them valid locations. On final hearing the court found that appellee had made valid locations of the claims, that he had performed his assessment work up to and including 1916, that he performed no work in 1917 but delivered to his father, for filing, exemption certificates for the required work in 1917, in compliance with the provisions of the statute with reference to assessment work during the war. This certificate was not filed but exemption certificates were filed in 1918 and 1919. The court further found that there had been discovery of a gold-bearing lode, and that there was a distinct marking of the boundaries of the claims.

The fee in the land in dispute is in appellant, but appellee claims exclusive possessory right and title under alleged compliance with R.S.U.S. Secs. 2318-2324 (Comp. St. Secs. 4613-4616, 4618-4620). The question presented here is, whether the record will support the finding that the locations were valid and subsisting. Section 2320 (Comp. St. Sec. 4615) restricts the length of each claim along the vein not to exceed 1,500 feet, and in width not more than 300 feet on each side of the middle of the vein at the surface, and requires that the end lines of each claim shall be parallel to each other and recites:

'But no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.'

Appellee contends that each claim is of the maximum width and length. Section 2324 (Comp. St. Sec. 4620) requires that 'the location must be distinctly marked on the ground so that its boundaries can be readily traced. ' Unless both of these statutory requirements are complied with a mining location is not valid and the pretended locator has acquired no rights. Erwin v. Perego, 93 F. 608, 611, 35 C.C.A. 482. In Cole v. Ralph, 252 U.S. 286, at page 296, 40 Sup.Ct. 321, 326 (64 L.Ed. 567), it is said:

'Location is the act or series of acts whereby the boundaries of the claim are marked, etc., but it confers no right in the absence of discovery, both being essential to a valid claim.' And in Belk v. Meagher, 104 U.S. 279, at page 284 (26 L.Ed. 735), it is said:

'The right to the possession comes only from a valid location. Consequently, if there is no location there can be no possession under it. Location does not necessarily follow from possession, but possession from location. A location is not made by taking possession alone, but by working on the ground, recording and doing whatever else is required for that purpose by the acts of Congress and the local laws and regulations.'

The location certificate of the Oaxaca lode, filed in the office of Register of Deeds of Pennington County, as required by State statute, recites that lode to have been located by appellee on February 4, 1902, and the certificate of the Helamonster, that it was located by appellee on March 8, 1902. When this controversy arose appellant's agents went with appellee to the premises for the purpose of trying to find the two lode claims and ascertain, if they could, their boundaries. At that time there was nothing on the ground from which the boundaries of either could be traced. He took them to a tree which he says he thought might be the tree that he had blazed sixteen years before and established a corner on it, but he was not sure. He blazed that tree fresh as a corner, or at about a corner of the Oaxaca lode. They then went up the mountain and he showed them his discovery, where he had worked. They then went down the gulch to a point where he says the stake was that was supposed to be the southeast corner of that lode and the northeast corner of the Helamonster, but he said he was not sure whether he put it on a pine tree or a pitch stake, but that it had been established somewhere in a radius of 100 feet or such matter, and he said to them:

'Now, here is a tree that looks like it might have had an axe blaze on it some 16 years ago, we'll just blaze this tree fresh.'

They then went on to, as near as he could remember, the southeast corner of the Helamonster, and he found a tree there that he thought had an old axe blaze on it, and he said:

'We'll blaze this tree off and just leave it here as a temporary mark * * * that this kind of establishes the east line; the west line will be about 600 feet west of here, wherever that takes us.'

He further testified that,

'As to whether I marked the Helamonster when I located it by blazing trees or setting stakes I couldn't answer that question specifically, but I might have marked on trees and I might not, but I thought as my recollection that the northeast corner of the Helamonster and the southeast corner of the Oaxaca lode was established on a pitch stake, but I ain't going to say for sure because I don't remember. I ain't going to say whether the trees I blazed were actually trees that had been at the corner, they might have been. * * * When I located these claims, I put up stakes or identified the boundary at every corner. * * * As to whether I was prepared to show them the stakes at any time within the last ten years, that is a pretty bad question. I will have to object to that question as being immaterial and incompetent. * * * As to whether I set any stakes in the middle of the lines along the boundaries of either claim, it used to be the custom in locating claims we were supposed to put in north and center stakes, side center stakes and south end center stakes, but in patent work the Commissioner of the General Land Office rules that anything that identified a...