Waterloo Mining Co. v. Doe

• Decision Date: 18 April 1893
• Docket Number: 120.
• Citation: 56 F. 685
• Parties: WATERLOO MIN. CO. v. DOE et al.
• Court: U.S. District Court — Southern District of California

56 F. 685

WATERLOO MIN. CO. v. DOE et al.

No. 120.

United States Circuit Court, S.D. California.

April 18, 1893

A. H Ricketts, for complainant.

C. J Perkins and R. S. Mesick, for defendants Doe and Patterson.

ROSS District Judge.

All of the mining claims mentioned herein lie on the southerly side of Calico mountain, in San Bernardino county, of this state and within the Calico mining district. Of these claims the Silver King is highest upon the mountain side. Immediately south of sand adjoining that is the Oriental No. 2; immediately south of and adjoining the Oriental No. 2 is the Oregon No. 3, (the ground in dispute;) next lower down the mountain is the Oregon, the Oregon and Oriental No. 2, however, having a common corner, and the Oregon No. 3 being a triangular-shaped piece of ground lying between them; and immediately south of and adjoining the Oregon is the Silver Monument. The Silver King and Oregon are owned by the complainant, and the Oriental No. 2 and Silver Monument are owned by the respondent Doe. Both parties claim the Oregon No. 3. The ground embraced by that claim was located as a mining lode claim, and called 'Oregon No. 3,' by D. Bahten, on or about the 22d day of August, 1885. At the time of such location, however, no vein or lode had been discovered within the boundaries of the claim, but, according to Bahten's own testimony, his location was made 'in the hope of finding some ore in it at some time.' In 1886, Bahten leased the Oregon No. 3 claim, for mining purposes, to a man named Stevens, who mined therefrom about three tons of silver-bearing rock, which yielded him $600. In 1887, Bahten sold the claim to the respondent Doe for $2,000. Doe subsequently relocated the ground in his own name, and in making such relocation included within the lines of the claim some ground which had been left out of the official survey of the Oriental No. 2. Upon this relocation Doe applied in the United States land office at Los Angeles for a patent for the ground thus claimed. Against its issuance the complainant protested in the land office, and within the statutory time commenced the present suit to determine the conflicting claims of the respective parties to the ground embraced within the Oregon No. 3 claim.

The Oregon claim, which is now patented, and the property, as has been said, of the complainant, was originally located by James Waldrip in July, 1881. The immediate predecessor in interest of the complainant was a corporation called the Oro Grande Company; and that company, of which Bahten was vice president and general manager, was the owner and in possession of the Silver King and Oregon claims at the time Bahten located the Oregon No. 3.

The grounds upon which complainant relies for a judgment in its favor are, in substance: First, that the ground in controversy was in fact a part of the Oregon claim as located by Waldrip in 1881, and was omitted from the official survey and patent of that claim through the fraudulent acts of Bahten; second, that both the Oro Grande Company and complainant have made such use of the ground in controversy as raise a privilege in their behalf inconsistent with the acquisition of any right by the respondent to become the purchaser of it from the government; third, that the location of the ground made by Bahten and sold to Doe was made under such circumstances of bad faith and wrong towards the Oro Grande Company (of which Doe had knowledge) that his location inured to the benefit of that company, and through it to the complainant; fourth, that the ground in controversy was not subject to location, nor properly located, so as to entitle respondent to become a purchaser thereof from the government.

As a matter of fact the official survey of the Oregon claim, upon which the complainant's predecessor in interest, the Oro Grande Company, applied for and received the government patent, did not include the ground afterwards located and now claimed as the Oregon No. 3. The record shows that at the time of the making of the official survey of the Oregon claim, and at the time of the making of the application for a patent for it, based upon that survey, Bahten was vice president and general manager of the company making the application; but there is nothing in the record showing or tending to show that the ground here in question and known as the 'Oregon No. 3 Claim' was omitted from the official survey and patent of the Oregon claim by reason of any fraud practiced by Bahten or any one else. The case shows that Frederick E. Lewis was the United States deputy mineral surveyor for California, who made the official survey of the Oregon claim, and that he directed Bahten to send for Waldrip, the original locator of the claim, to point out its monuments and boundaries, for the reason that the location notice was indefinite, and he wished to know from the locator himself where the monuments were originally placed. In accordance with that direction, Bahten sent for Waldrip, who came and pointed out to the surveyor what he claimed to be the original monuments and boundaries. The evidence shows that in doing so Waldrip was not prompted by Bahten or any one else, and that, whether correctly designated or not, the corners and lines pointed out by him were not the result of any improper influence exerted by Lewis, Bahten, or any other person. The boundaries thus pointed out by the original locator of the Oregon claim were the boundaries adopted by the government surveyor, and returned by him to the land office, and upon which the government patent was issued...