Appeal
from district court, Meagher county; Frank Henry, Judge.
Action
by P. T. Walsh and others against William Mueller and others
to try title to a mining claim. There was a judgment for
defendants, and plaintiffs appeal. Reversed.
PEMBERTON
C.J.
Plaintiffs
claim to be the owners of the Haphazzard quartz lode mining
claim, located, as they allege in their complaint, on the
16th day of September, 1890. The said claim is situated in
Montana (unorganized) mining district, in Meagher county. The
complaint alleges that the defendants claim to be the owners
of the Safety quartz lode mining claim, situated in the same
mining district; that on the 31st day of January, 1891, the
defendants made application to the United States land office
at Helena, Mont., to obtain a patent to said Safety lode
claim; that the premises covered and embraced within and by
the said Safety lode application cross and overlap all of
said Haphazzard lode, and include 6.02 acres of the said
Haphazzard lode claim; that plaintiffs, within the time
required by law, filed their adverse claim to the premises
sought to be entered and patented under the name of the
"Safety Lode." This suit is brought to try the
right to the title and possession of the premises in conflict
and dispute. The case was tried to a jury. Certain findings
of fact were submitted to and returned by the jury. There was
also a general verdict for the defendants. Plaintiffs filed
their motion for a new trial, which was refused by order of
the court. From this order this appeal is prosecuted.
Appellants
assign as error that finding No. 2 is not warranted by the
evidence; in fact, they say that said finding is absolutely
contrary to the evidence. Finding No. 2 is as follows
"Did Walsh and Sweeney enter upon a portion of the
unappropriated public lands of the United States prior to the
15th day of September, 1890, and on said 15th day of
September, 1890, discover thereon a lead or lode with at
least one well-defined wall, and containing rock in place
bearing valuable mineral deposits of silver, lead, and
manganese? Answer. No." As to whether a vein was
discovered on the Haphazzard claim, and when such discovery
was made, P. T. Walsh testified as follows: "My name is
P. T. Walsh. I reside in Neihart. My business is mining. I
have been 15 years in that business. My age is 37. I was born
in California, and am a citizen of the United States. I am
acquainted with the Haphazzard mining claim. I am one of the
locators of it. I first became acquainted with it
when we located it. I did some work on the Haphazzard ground
before it was located as the Haphazzard. I went there the 22d
or 23d of August, 1890. I worked about one month after that
time. I helped around there a little. I also did a little
mining work there. The shaft was on the northeast part of the
claim. I began work in that shaft the 22d or 23d of August
and worked about one month. I worked there myself until the
night of September 15, 1890. On that night I was working on
the upper shaft. Two men were at work there. About 10
o'clock I went up there, and went down in the shaft, and
dug it deeper. The more we dug the more we found croppings of
the lead. I think we sunk three feet that night,--a narrow
trench on this lead. This lead was 14 inches wide. On the
east of it the formation was granite. With reference to the
creek, the east side is the upper side of the shaft. I think
we were down 47 feet when this lead was discovered. I did not
measure it at the time. We then sunk 3 or 3 1/2 feet more.
This lead contained manganese, also a little talc. The
formation on the east side was the footwall of the lead. This
lead came through on the east side, and went angling and
dipped towards the west. The general course of the vein is a
few degrees off of north and south. We sunk four feet in the
clear on this lead, when the shaft became dangerous. We then
did no further work. We quit work about the last of
September. The manganese that I mentioned contained croppings
of silver lead ore. The lead matter also carried iron. After
making this discovery, we stuck a notice on the claim. We
then put up stakes 10 feet in an eastern direction from the
shaft, one north of the shaft 12 feet. We measured 300 feet
on each side of the northern stake, on the south line of the
Compromise ground. We then went to the southwest corner of
the Keagan location, and put up a stake there. Six hundred
feet to the west we placed another stake. All the places
which are indicated on the map we marked with stakes. I do
not remember the points as they came, but they are all
described in the notice of location. I staked it all around.
Patrick Sweeney was with me. After we had done this staking
we sent the location notice on the stage to be
recorded." He also testifies that very soon after the
discovery they quit work until in April, 1891. Patrick
Sweeney testifies as follows: "We struck lead matter in
the shaft about 45 feet down. This lead was struck in
bedrock, composed, I think, of granite. I do not know what
the lead contained, but it was of such a nature that it could
be distinguished from the surrounding rock. I was not in the
mine at the time the lead was struck. Mr. Walsh was there. We
both went down in the shaft. Mr. Walsh was there sinking the
shaft. That night I should judge we sunk three feet further.
I think the vein was from 12 to 15 inches wide. The work that
we were doing was sinking in...
