Upton v. Santa Rita Min. Co.

• Decision Date: 27 February 1907
• Citation: 89 P. 275,14 N.M. 96,1907 -NMSC- 017
• Parties: UPTON v. SANTA RITA MINING CO. SANTA RITA MINING CO. v. UPTON.
• Court: New Mexico Supreme Court

89 P. 275

14 N.M. 96, 1907 -NMSC- 017

UPTON v. SANTA RITA MINING CO.

SANTA RITA MINING CO. v. UPTON.

Supreme Court of New Mexico

February 27, 1907

Syllabus by the Court.

In adverse suits brought pursuant to Rev. St. U.S. § 2326 [U. S Comp. St. 1901, p. 1430], an ordinary declaration in ejectment is sufficient to present all the questions involved between the applicant for patent and an adverse claimant following Deeney v. Mineral Creek Mining Co., 67 P 724, 11 N.M. 279.

In such suit, however, the rules governing ordinary ejectment suits are modified by Comp. Laws, § 2290, which provides that mere prior possession shall not constitute a basis for recovery and by Act Cong. March 3, 1881, c. 140, 21 Stat. 505 [U. S Comp. St. 1901, p. 1431], which requires that the defendant, no less than the plaintiff, shall recover on the strength of his own title.

In order, therefore, that the court may be advised of the nature of the suit so as to apply these exceptional rules, there should, in addition to the ordinary allegations in ejectment, be appropriate allegations showing the fact that such suit is designed as an adverse suit.

The complaint in the present cause examined, and held sufficient for adverse suits.

In such a suit a verdict in the form, "We, the jury, find the defendant guilty," is sufficient to answer all the purposes of the proceeding.

In such a suit, the parties are, upon proper request, entitled to special findings upon questions relevant to the cause; but, in the absence of such request, it is not error for the court to fail to require findings of the jury.

In descriptions, natural or artificial monuments ordinarily prevail over courses and distances.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Boundaries, §§ 12, 18.]

A call in a description for "west" will be read "east," where such change is necessary to enable the survey to close upon the starting corner.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Boundaries, § 2.]

In a case of conflict in the calls of a description, such elements of description will be preferred as are the least liable to mistake.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Boundaries, § 5.]

If the rejection of a call will reconcile all parts of the description and leave enough to identify the tract, such call will be rejected, and the description thus preserved.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Boundaries, § 4.]

Where, therefore, a single call of description fixes the tract by course and distance from a common section corner as in range 14, when several other descriptive calls fix it by reference to known monuments and mining claims as in range 12, the discordant element of description first named will be ignored, and the description read as in range 12.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Boundaries, § 4.]

Section 2332, Rev. St. U.S. [U. S. Comp. St. 1901, p. 1433], providing that, when parties have held and worked mining claims for the period prescribed by the local statute of limitations, such possession shall be sufficient to establish a right to patent, in the absence of any adverse claim, is to be construed in connection with the remaining federal mining statutes.

When so construed, its effect is simply to declare that possession for the statutory period is the equivalent of a valid location.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mines and Minerals, § 67.]

Possession for the statutory period, under Rev. St. U.S. § 2332 [U. S. Comp. St. 1901, p. 1433], does not relieve the possessor from doing the annual assessment work required by Rev. St. U.S. § 2324 [U. S. Comp. St. 1901, p. 1426], and, upon his failure to do such work in any one year, the land becomes subject to relocation, notwithstanding he may have occupied it for more than the statutory period preceding such relocation.

Possession and working for the statutory period, under Rev. St. U.S. § 2332 [U. S. Comp. St. 1901, p. 1433], when proved in the land office or before the courts, give the possessor the status of a valid locator; but testimony to prove such possession is immaterial, where the party offering such testimony claims under a location duly made pursuant to law, and there is no issue as to the original validity of such location, but simply as to whether he had forfeited it by failure to do the annual assessment for a given year.

Improvements placed upon one of a group of contiguous claims for the purpose of aiding in the development of all, and tending to such result, may be considered in determining whether the annual labor for a given year has been done upon any one of such group.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mines and Minerals, § 54.]

Before, however, such testimony can be considered in aid of any one claim, there must be sufficient testimony as to the other claims to enable the jury to determine what proportion of such benefit is referable to the claim in question.

Tested by these rules, the court below did not err in charging the jury to disregard, as an element in determining whether the annual work had been done, the existence of a blacksmith shop and blacksmith implements found upon the claim in question placed there for the benefit of this and other claims.

Comp. Laws, § 2286, which requires the locator of a mining claim to post a location notice "in some conspicuous place on such location," is supplemental to, and not inconsistent with, the federal mining laws, and is consequently valid; and a failure to comply substantially therewith renders the location void.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mines and Minerals, §§ 37-39.]

The mere fact, however, that the portion of the claim upon which such notice is posted may by mistake overlap or conflict with a pre-existing claim, does not invalidate the location. Such location is still good as to so much not in conflict.

A forfeiture of a mining claim for failure to do annual work can be established only upon clear and convincing proof of such default proved against the former owner by the party assailing his title.

Where, however, the owner has failed to make and file the proof of labor required by Comp. Laws, § 2315, such owner is not entitled to invoke the rule of law last stated, since section 2315 places the burden of proof upon him to show that such work has been done according to law, and not upon his opponent to show that it has not been done.

Appeal from and Error to District Court, Grant County; before Justice Frank W. Parker.

Action by James N. Upton against the Santa Rita Mining Company. From a judgment in favor of plaintiff, defendant appeals and brings error. Affirmed.

This is a suit on an adverse brought by Upton against the Santa Rita Mining Company. The form of the complant, including the description of the premises in dispute, is essential to a proper discussion of the question here raised, and is accordingly set forth in full. It is, omitting the caption as follows: "Plaintiff, for cause of action against defendant, alleges: (1) That plaintiff is, and at all times herein mentioned was, a citizen of the United States. (2) That defendant is a corporation organized and existing under and by virtue of the laws of the state of New Jersey. (3) That on the 2d day of September, 1904, plaintiff was, and ever since has been, and now is, entitled to the possession of that certain land and premises, situate in the Central City Mining District, county of Grant, and territory of New Mexico, known and described as the 'Slip Lode Mining Claim.' (4) That on the 3d day of September, 1904, defendant afterwards entered into parcel of said Slip lode mining claim, being all that portion thereof which is intersected by the exterior lines of the James Pinder lode mining claim, which said portion so intersected is described as follows, to wit: 'Beginning at the northwest corner of said Slip lode mining claim, whence the corner common to sections 27, 28, 33, and 34 of township 17 south, of range 14 west of the New Mexico principal base and meridian bears north 44 deg. 0 minutes west, 988.8 feet distant; thence north 85 deg. 21 minutes west, 1,422.1 feet, to corner No. 5 of said James Pinder lode mining claim; thence south 28 deg. 57 minutes east, 376 feet, to intersection with south side line of said Slip lode mining claim; thence south 63 deg. 13 minutes west, 490.89 feet, to an angle corner in south side line of said Slip mining claim; thence south 83 deg. 52 minutes west, 872.8 feet, to southwest corner of said Slip lode mining claim; thence north 28 deg. 57 minutes west, 600 feet, to the place of beginning-containing 16,217 acres,' and unlawfully withheld the possession thereof from plaintiff, to the damage of plaintiff in the sum of $5,000. (5) That on the 3d day of September, 1904, defendant filed in the United States Land Office at Las Cruces, N. M., its application for a United States patent for said James Pinder lode mining claim, and thereafter did publish in the Silver City Independent, a weekly newspaper published in Silver City, N. M., a notice of said application; the first insertion therein of said notice being in the issue of Tuesday, the 6th day of September, 1904. (6) That on the 2d day of November, 1904, plaintiff filed in said United States Land Office his adverse claim and protest against the allowance of mineral entry on said application, and that said claim and protest is now pending in said United States Land Office. (7) That this action is brought in support of said adverse claim and protest. Wherefore, plaintiff prays judgment against the defendant for the possession of said parcel of said Slip lode mining claim above described, which is by defendant...