Ware v. White

• Decision Date: 03 December 1906
• Citation: 108 S.W. 831
• Parties: WARE et al. v. WHITE et al.
• Court: Arkansas Supreme Court

108 S.W. 831

WARE et al. v. WHITE et al.

Supreme Court of Arkansas.

December 3, 1906.

On Rehearing, January 14, 1907.

Appeal from Marion Chancery Court; T. H. Humphreys, Chancellor.

Action by one White and others against one Ware and others, under Rev. St. § 2326 [U. S. Comp. St. 1901, p. 1430], to determine the question of right of possession of a mining claim on government land. From a judgment for plaintiffs, defendants appeal. Reversed.

Woods Bros., for appellants. W. S. Chastain, for appellees.

HILL, C. J.

White and associates in a zinc mining venture brought suit in the August, 1903, term of the Marion circuit court against Ware and associates to recover possession of the E. ½ S. W. ¼ section 21, township 18 S., range 15 W., asserting possessory right thereto as a mining claim acquired as follows: That, by virtue of making discovery of mineral on the land, then wild and unoccupied government land, and posting location notice thereon September 27, 1899, and doing the necessary assessment work for 1900, 1901, and 1902, and complying with the mining laws of the United States and the state and the local rules and regulations of the Marion county mining district, they had acquired possessory right to it, and that Ware had made application for it to the United States Land Office, and they (White and associates) had in proper time filed therein their adverse claim to Ware's claim, and they prayed that Ware be ejected and possession given to them. Ware and associates admitted possession, and denied plaintiffs' title, and asserted title in themselves, which they set forth fully, and prayed that plaintiffs' complaint be dismissed, and that their possession and title be quieted and confirmed. On motion of plaintiffs, which was conceded by defendants, the cause was transferred to Marion chancery court, and there progressed to decree in favor of plaintiffs, and the defendants prosecuted this appeal.

This was an "adverse suit" authorized by section 2326, Rev. St. [U. S. Comp. St. 1901, p. 1430], to be brought in a court of competent jurisdiction "to determine the question of right of possession" of a mining claim on government land, in order that the government officers may patent the claim to the party establishing right thereto in such possessory action. Giberson v. Wilson, 79 Ark. 581, 96 S. W. 137. The action is essentially a law action, and contains no elements of equity jurisdiction, and the answer herein presented no equitable defense. Under the decision in Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, 84 S. W. 1044 (to the correctness of which two members of the court do not subscribe), the decree is not reversible for lack of jurisdiction in the chancery court because appellants did not insist on a trial at law in the lower court. The appellant does not raise the question now, but the court mentions it so that it may be understood how this lawsuit is determined as a chancery suit.

Passing to the merits, or, more properly, demerits, of the conflicting claims, it is found: That the appellees (plaintiffs below) purchased rights to two mining locations, which were located in 1898, situated one on each 40 of the 80-acre tract in controversy. On September 27, 1899, they filed notice of location seeking an original location then, and did some assessment work thereafter, which will be referred to later. The claim or location was not "distinctly marked on the ground so that its boundaries can be readily traced," and the location notice filed did not contain a description of the property, tying it to some natural object by which it could be identified. These are mandatory provisions of section 2324, Rev. St. [U. S. Comp. St. 1901, p. 1426], and must be complied with in order to secure a valid location. Worthen v. Sidway, 72 Ark. 215, 79 S. W. 777. Appellees in August, 1903, after their adverse claim was filed in the Land Office, and after this suit was instituted, had a surveyor run out the lines, and blaze around the entire tract, and mark its corners with stones. This was the first attempt of either party to mark the location on the ground, so that its boundaries could be readily traced. On May 2, 1904, appellees filed an amended notice attempting to follow up the marking on the ground of August, 1903, by proper description, tying the location to some natural object for identification. On the 3d of May by supplement to the answer they asserted title by virtue of such marking and amendment having made valid the original location. The court sustained this location. Prior to attempting a location on this property, appellants examined the records of the mining district, and found only the insufficient notice of appellees against this property, and no affidavits of having done the assessment work; and proceeded to make a location upon it on January 1, 1900. Their notice is similarly defective, and they likewise failed to mark the claim on the ground, but they did proceed to do the assessment work for three years. On the trial the appellants gave detailed statements of amount of assessment work done, and its value, amounting to $106 for 1901, $124.50 for 1902, and $188 for 1903. This was not controverted, and must be taken as established. On May 10 and September 26, 1904, appellants also attempted by amendments to their notice to cure its defects, and pleaded the same in supplement to their answer. The appellee White in his testimony claims to have receipts for $400 worth of assessment work, but does not give a definite statement of what was done or its value. Stegall, a witness for appellees, says that, in 1901, he and three others did five days' assessment work, and he was paid $1.25 per day for his work, and he knows one of the other workmen was paid that amount. He also testifies to doing some assessment work each year which appellees claim to have done work, but he does not prove that the requisite work each year, or any year, was done by appellees. Treat, likewise for appellees, lived near the land, and saw the assessment work, and said it was worth as much, or more, than assessment work by others. This was all the evidence to sustain appellees' claim of having done the annual assessment work, and they did not file the affidavits authorized by section 5364, Kirby's Dig., which makes such affidavits prima facie evidence of the performance of the work.

The appellants showed by one Ott that he was one of the four men employed by appellees to do the assessment work in 1901, and that they were instructed to do five days' work each — 20 days' work in all — and that was all the assessment work done by appellees for that year on this claim. There was other evidence showing appellees' total work for the four years was worth about $100. Very likely appellees were proceeding under a custom or mining regulation providing for 20 days' work to count as the requisite $100 worth of work required by the federal statute, which custom and regulation was held to be in contravention of said statute by this court in Woody v. Bernard, 69 Ark. 579, 65 S. W. 100. Be that as it may, it must be taken as established that the appellees failed to do the requisite assessment work under their 1899 location. Up to the amended location neither party had a valid location; the appellees failed for defects in notice and in marking the ground, and further failed to do the...