Washoe Copper Co. v. Junila
| Decision Date | 17 April 1911 |
| Citation | 115 P. 917,43 Mont. 178 |
| Parties | WASHOE COPPER CO. v. JUNILA et al. (HALL et al., Interveners). |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; John B. McClernan Judge.
Action by the Washoe Copper Company against John Junila and others in which W. H. Hall and others intervene. From a judgment for defendants and interveners, plaintiff appeals. Reversed and remanded.
C. F Kelley, D. Gay Stivers, and L. O. Evans, for appellant.
John J McHatton, for respondents.
This action was brought by the Washoe Copper Company against Junila and others to recover damages for ores extracted from ground claimed by the plaintiff, and for an injunction to restrain further trespasses.
The plaintiff alleges its ownership in and to an irregularly shaped piece of ground in the N.E. 1/4 of the S.W. 1/4 of section 18, township 3 N., of range 7 W., in Silver Bow county. The defendants answered, admitting that they had mined in a portion of the ground claimed by plaintiff, denied plaintiff's ownership of such portion, alleged that they were merely lessees of others who claim to be the owners, and pleaded affirmatively that plaintiff's only claim of ownership to the ground described in the complaint is by virtue of mesne conveyances from the original patentees of placer 765; that, when application for patent to such placer was made, there existed within the boundaries of the placer claim a well-known lode or vein; that the applicants for placer patent did not apply for patent to such lode or vein and the same was excepted from the placer patent; and that all acts done by defendants were done upon such known lode or vein. Thereafter Hall and others filed a complaint in intervention, in which they set forth substantially the same facts as those pleaded affirmatively by the defendants, and other facts to which reference will be made hereafter. They describe particularly the ground claimed by them, and conclude with a prayer for general relief. Issues were joined upon all the affirmative allegations contained in the answer and the complaint in intervention, except that plaintiff admitted that its only claim of ownership is by virtue of mesne conveyances from the original placer patentees. The trial court found in favor of the defendants and interveners, and rendered a decree in favor of interveners, adjudging them to be the owners of the ground claimed by them. From the decree and an order denying it a new trial, the plaintiff has appealed.
1. Error is predicated upon the action of the trial court in overruling plaintiff's demurrer to the affirmative defense pleaded in the answer of defendants. But we think there is not any merit in the contention; for even assuming that sufficient facts are not pleaded to entitle defendants to affirmative relief--and they do not seek any--still the facts, which, if true, show the existence of a known vein within the ground claimed by plaintiff at the time the application for placer patent was made, state a defense to plaintiff's cause of action; for, if such known vein existed, it remained public property of the United States, and plaintiff will not be heard to object to defendants carrying on mining operations upon it. Reynolds v. Iron-Silver M. Co., 116 U.S. 687, 6 S.Ct. 601, 29 L.Ed. 774.
2. Complaint is made of the action of the court in admitting evidence of the condition upon the ground, particularly as to the character and extent of the vein disclosed by development made since the placer application. The question involved was determined by this court adversely to appellant in Noyes v. Clifford, 37 Mont. 138, 94 P. 842.
3. As a part of their proof, interveners introduced in evidence, over the objection of plaintiff, a certified copy of the declaratory statement of the Morning Star quartz lode mining claim. This declaratory statement purports to have been made by Charles Colbert in 1877, and recites that on July 2, 1877, Colbert made discovery of mineral-bearing rock in place at a point which is now within the boundaries of the ground claimed by plaintiff. It is conceded that the declaratory statement was not verified as required by the law in force at the time; but in offering the certified copy counsel for interveners say: "The purpose of offering this, may it please the court, is not to prove title under the location itself, but for the purpose of showing that this vein was known to exist at the time when he located it by Charles Colbert, and to show what was done by Charles Colbert and others with reference to working the vein." In O'Donnell v. Glenn, 8 Mont. 248, 19 P. 302, this court held that a declaratory statement which does not contain the required affidavit is void, and that decision has been followed uniformly since. See Hickey v. Anaconda Copper Min. Co., 33 Mont. 46, 81 P. 806. Since the Morning Star declaratory statement was void, the receipt in evidence of a certified copy of it was error.
It is apparent from the statement of counsel made when the copy was offered that the purpose of introducing it was to show general knowledge on the part of the people of the community that a vein existed within the boundaries of the placer prior to the application for patent, presumably upon the theory that proof of such condition in 1877 would tend in some degree to establish knowledge of a similar condition when the application for placer patent was made in February, 1880. That a void instrument cannot impart constructive knowledge to any one is elementary; and the fact that the trial court admitted this evidence, and that in finding No. 1 reference is made to the Morning Star location, and the further fact that the court did not find specifically that the placer patentees had actual knowledge of the existence of the vein at the time when they applied for patent, but only that they had such knowledge, actual or constructive, seem to justify the conclusion that the court must have attached some importance to the contents of this declaratory statement.
In order to exclude a lode from a placer claim, the lode must have been known at the time the application for placer patent was made; but actual knowledge on the part of the placer applicant is not absolutely essential. In Iron-Silver Min. Co. v. Mike & Starr G. & S. Min. Co., 143 U.S. 394, 12 S.Ct. 543, 30 L.Ed. 201, it is said: "It is enough that it be known, and in this respect, to come within the intent of the statute, it must either have been known to the applicant for the placer patent or known to the community generally, or else disclosed by workings and obvious to any one making a reasonable and fair inspection of the premises for the purpose of obtaining title from the government." This rule has been followed in the mining states generally. Brownfield v. Bier, 15 Mont. 403, 39 P. 461. It seems a fair inference from this record that the placer patentees who denied actual knowledge of the existence of a vein within the boundaries of their placer claim at the time of their application for patent were charged with knowledge of the existence of such vein by the evidence furnished by this declaratory statement.
In so far as the copy of the declaratory statement was offered to prove the extent or character of the work done by Colbert, it was subject to the objection that it was not the best evidence, in addition to the other objection considered.
The immateriality of the evidence is also apparent, since neither plaintiff nor interveners claimed under the Morning Star location. In fact, the evidence shows that that claim was abandoned.
4. The interveners also introduced in evidence, over the objection of plaintiff, a deposition of Charles Colbert, taken in 1895 in...
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