Ware v. White

• Decision Date: 03 December 1906
• Citation: 108 S.W. 831,81 Ark. 220
• Parties: WARE v. WHITE
• Court: Arkansas Supreme Court

108 S.W. 831

81 Ark. 220

WARE v. WHITE

Supreme Court of Arkansas

December 3, 1906

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

Reverse and remanded. Motion overruled.

Woods Bros., for appellant.

1. Appellee's notice of their alleged location in September 1899, was insufficient, in that it was not posted on the land claimed. It also failed to conform to the requirements of § 2324, U. S. Rev. Stat., in failing to describe the location with reference to natural objects or permanent monuments so as to identify the claim.

2. If appellees acquired any rights under such location, they have forfeited the same by failure to do the assessment work required by law. Section 2324 supra; 73 Ark. 610; 72 Ark 225; 70 Ark. 525.

W. S. Chastain, for appellee.

1. Neither the federal nor the State laws require that notice of location be posted. 111 U.S. 356; 1 Snyder on Mines, § 374; 1 Lindley on Mines, 350; Barringer & Adams on Mines, 234. If posting or recording is required, it must come from some local rule or custom of the district, and none is proved. 99 U.S. 261; 1 Snyder on Mines, § 128.

2. The question of forfeiture does not enter into this case. It is simply a question of who has the valid location. If appellant's attempted amended location of May 10 and September 26, 1904, were good, he can not rely on the deeds made by his co-locators to him, and received prior to that time, because they were only quitclaim deeds. Kirby's Digest, § 734; 76 Ark. 417. No rights were acquired under the notices made by appellant in 1898. They do not comply with the act of Congress, and are void on their face. U. S. Rev. Stat. § 2324. Appellee's notices of September, 1899, were similarly defective, and within themselves conferred no rights, but appellees did take actual possession of the lands at that time. When, in August, 1903, appellees procured the services of the county surveyor, went upon the lands, had same surveyed and the "location distinctly marked on the ground so that its boundaries could be readily traced," this gave appellees all rights of possession against the Government, and against all claimants who did not hold a valid location. 113 U.S. 527; White on Mines and Mining Rem. § 35.

OPINION

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 1/2 S.W. 1/4 sec. 21, T. 18 S., R. 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 Sec. 2326, Rev. Stat. of the United States, 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. Gibberson 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 law suit 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 forty of the eighty-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 sec. 2324, Rev. Stat. U.S. 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, 1893, 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 Digest, 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 twenty 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 assessment work, and appellants failed in the same...