Wills v. Blain

• Decision Date: 29 January 1889
• Parties: WILLS et al.v.BLAIN et al.
• Court: New Mexico Supreme Court

5 N.M. 238

20 P. 798

WILLS et al.

v.BLAIN et al.

Supreme Court of the Territory of New Mexico.

Jan. 29, 1889.

Appeal from district court, Sierra county; HENDERSON, Judge.

In an action for possession of a claim, where the only contention is as to the performance of the annual work, it is enough to charge that plaintiff must prove some title and right to possession by a preponderance of the evidence, and that such right must be better than that of defendant. The same fullness and precision of instruction is not required as in cases involving the legal title.

Warren & Ferguson, for appellants.

LONG, C. J.

James Q. Wills, William H. Beery, and others, on the 16th day of August, 1887, filed a declaration in ejectment in the court below, making parties defendant thereto James P. Blain and Frank B. Pitcher, who are the appellants in this court. The action was brought to recover from the defendants Blain and Pitcher a certain parcel and tract of land, a mining claim, known as the “Dread Naught Mine,” situated in the county of Sierra. The defendants appeared, and pleaded not guilty. The cause was submitted for trial to a jury. The issue involved was found by the jury for the plaintiff, and judgment on the verdict of the jury was rendered in favor of the plaintiff below, Wills and others, for the possession of the mining claim. The defendants below appealed to this court, and have properly saved in the record the questions asked to be reviewed here.

The plaintiffs below, Wills and others, claimed the right to possession of the mining claim sued for, by reason of an alleged prior location under the following notice:

“ Territory of New Mexico, County of Socorro-ss.: Know all men by these presents that the undersigned, under the provisions of the act of congress entitled “An act to promote the development of the mining resources of the United States,” approved May 10, 1872, have located fifteen hundred (1,500) feet (linear and horizontal measurement) in length on this lode, vein, or deposit of gold, silver, copper-bearing ore, or other rock in place, with three hundred (300) feet on each side, for mining purposes. This claim is situated in ___ mining district, in said county, and shall be known as the ‘Dread Naught Mine,’ the location and bounds being marked and described as follows, to-wit: From this initial monument on north-end center of claim; thence west three hundred feet, to a monument of stone; thence south 1,500 feet, to a monument of stone; thence east three hundred (300) feet, to a monument of stone, it being south-end center of claim; thence east three hundred feet, to a monument of stone; thence north 1,500 feet, to a monument of stone; thence west 300 feet, to the place of beginning. This mine is on the eastern slope of the Blak range on Mineral creek, a tributary of the Cuchilla Negra creek, about three miles from the mines of the Cuchilla Negra mountains.

“Dated on this ground this 4th day of October, A. D. 1880.

“Attest: W. H. BEERY,

“C. F. McCONKEY. J. M. SMITH,

M. F. KILGORE. J. MILLER,

Locators.”

It was contended by the plaintiffs below that each and every step and act required by law to be taken to make and perfect a valid and subsisting mining claim under this location notice had been done, and that plaintiffs succeeded to all the rights of the original locators.

The defendants claim under a location notice bearing date May 13, 1887, which notice is as follows:

Notice is hereby given that we, the undersigned, citizens of the United States, have this 13th day of May, 1887, claimed by right of discovery and location, and do hereby claim by virtue of such right, fifteen hundred (1,500) feet linear, and three hundred (300) feet in width on each side of the middle of the vein on this lode, vein, or deposit of mineral, along the course of the vein, with all its dips, spurs, angles, and variations, together with the amount of surface allowed by law, and all veins, lodes, or deposits of mineral whose top or apex are within said lines extended vertically downwards. The said vein, lode, ledge, or deposit of mineral hereby located and claimed as aforesaid shall be called the ‘Dictator,’ and is situated in the Apache mining district, in the county of Sierra and territory of New Mexico, in a north-west direction from the town of Chloride, in said county and territory, distance about five and one-half miles from said town of Chloride, and about one-quarter of a mile north-west from the village of Roundyville, situated on Mineral creek; the location or discovery shaft of this location being about one-quarter of a mile from the junction of the valley of said mineral creek with what is known as ‘Dread Naught Gulch,’ and on the west side of and within about fifteen feet of a living tree standing up the hill, and west from said shaft, and marked by a big ‘D’ cut through the bark of said tree. The said Dictator mining claim hereby located, as aforesaid, lies partly on the same hill with and easterly from the patent mining claim known as the ‘John A. Logan.’ The said Dictator mining claim is marked and bounded as follows: Beginning at a stake and stone monument at the side of the said location or discovery shaft; thence in a northerly direction five hundred (500) feet, to a stake and stone monument marked ‘North-End Center Dictator Lode;’ thence westerly three hundred (300) feet, to a stake and stone monument marked ‘North-West Corner Dictator Lode;’ thence in a southerly direction fifteen hundred (1,500) feet, to a stake and stone monument marked ‘South-West Corner of Dictator Lode;’ thence three hundred (300) feet easterly, to a stake and stone monument marked ‘South-End Center of Dictator Lode;’ thence easterly three hundred (300) feet, to a stake and stone monument marked ‘South-East Corner of Dictator Lode;’ thence northerly fifteen hundred (1,500) feet, to a stake and stone monument marked ‘North-East Corner of Dictator Lode;’ thence westerly three hundred (300) feet, to a stake and stone monument, being the same already marked ‘North-End Center of Dictator Lode.’ This is a relocation of the claim known as the ‘Dread Naught.’.

“Witness our signatures to this location notice of the Dictator mining claim this 13th day of May, 1887.

“Witness, DON CAMERON. JAS. P. BLAIN,

“F. B. PITCHER,

Locators.”

It appears in evidence that Blain and Pitcher, believing that the annual labor required by law was not done in 1886 under the Dread Naught claim, undertook themselves to relocate the claim; and the principal question for determination is the legal effect of their location notice above set out. The court below, in its rulings, narrowed the question to the point whether or not the plaintiffs had each and every year after the attempted location under the Dread Naught notice performed the annual labor of the value of $100 as required by the laws of the United States. The instructions of the court on this point are as follows:

“The court instructs the jury that the defendants' location certificate offered in evidence does not purport to be, and is not, an original location of a mining claim, but is a relocation of the claim known as the ‘Dread Naught,’ the right to the possession of which the plaintiffs claim, and, as they set up title only as the relocators of the original lode claim, they impliedly admitted the validity of the prior location. There can be no relocation unless there has been a prior valid location, or something equivalent, of the same property.” To the giving of which instruction defendants then and there excepted.

The court instructed the jury that if they believe from the evidence that the defendants' location was a relocation of the Dread Naught, and that plaintiffs were owners of said Dread Naught claim, then defendants' relocation admits the validity of plaintiffs' location; and if...