Wilson v. Triumph Consol. Min. Co.

• Decision Date: 14 March 1899
• Court: Utah Supreme Court
• Parties: WILLIAM D. WILSON ET AL., APPELLANTS, v. THE TRIUMPH CONSOLIDATED MINING COMPANY, A CORPORATION, RESPONDENT

56 P. 300

19 Utah 66

WILLIAM D. WILSON ET AL., APPELLANTS, v. THE TRIUMPH CONSOLIDATED MINING COMPANY, A CORPORATION, RESPONDENT

Supreme Court of Utah

March 14, 1899

Appeal from the Fifth Judicial District, Juab County, Hon. E. V. Higgins, Judge.

Action in ejectment for possession of certain mining ground.

From a judgment for defendant, plaintiffs appeal.

Affirmed.

John W Pike, Esq., and H. L. Pickett, Esq., for appellants.

Appellants insist that not only the parties to an action to recover the possession of a mining claim must each prove citizenship where they each claim to be the original locator of the mining claim in controversy, but if they are each claiming as grantee of the original locator they must in that event prove the citizenship of the locator under whom they claim. North Noonday Co. v. Orient Co., 6 Sawy. 299; S.C. 9 Morrison's Mining Reports, 529, Hammer v. Garfield Co. 132 U.S. 2-2.

Messrs Dey & Street and W. H. Bramel, Esq., for respondents.

Citizenship of locators (of mining claims) is not required to be proved in an action of this character.

This case does not arise on application for patent, and is one in which the government is not interested or concerned, and therefore it is not one of the class of cases where proof of citizenship is required. Jantzen v. Ariz. Copper Co., 20 P. 93; Manuel v. Wulff, 152 U.S. 505; McFeters v. Pierson, 24 P. 1076; Lindley on Mines, Secs. 233, 234; Billings v. Aspen, 51 F. 338; S.C. 52 F. 150; Lone Jack v. Megginson, 82 F. 89-93-4.

The assessment work may be done outside of the claim. So long as the work tends to develop the claim in question it is immaterial where or how it is done. It may be done either within or without the limits of the claim. Harrington v. Chambers, 3 Utah 94; Smelting Co. v. Kemp, 104 Utah 636; Packer v. Heaton, 4 Morrison's Min. Rep. 447; Mt. Diablo Co. v. Callison, 5 Sawy. (U.S.), 439; Chambers v. Harrington, 111 U.S. 350; Lindley on Mines, Sec. 631.

MINER, J. BARTCH, C. J., and BASKIN, J., concur.

OPINION

MINER, J.

This action in ejectment was brought by the plaintiffs and appellants in Juab County against the defendant and respondent, to recover possession of a certain mining claim called the "Steeple Chase" by the appellants, and the "Mormon Chief" by the respondent, located in Tintic mining district, State of Utah. The appellants insist that the Steeple Chase mining claim was located January 1, 1897, by one R. C. Alexander, their grantor, upon unappropriated mineral land of the United States, subject to location in observance of all the laws of the United States, and the by-laws of the Tintic mining district, and that the appellants are the owners thereof subject to the paramount title therein in the United States, and that while the plaintiffs and their grantors were the owners and entitled to the possession of said Steeple Chase mining claim, the defendant, on the 15th day of January, 1897, entered into possession of said claim, and unlawfully withheld the possession of said claim from the plaintiffs, to their damage, etc.

It appears that J. F. Kappes, at the time of his death, September 24, 1895, was the owner of the Mormon Chief, which covers the same ground as the Steeple Chase, located August 10, 1882, by W. W. Hinch and O. T. McMillan. The Pride of the Hills mine was located August 11, 1885, by J. F. Kappes. The Sunday mine was located January 21, 1890, by J. F. Kappes and George Kappes. The Sunday Extension was located November 29, 1890, by J. F. Kappes, and the Silver Star was located January 29, 1892, by J. F. Kappes. These five claims were lying contiguous to each other. Notice of the consolidation of these five claims for working purposes, including the Mormon Chief, was duly made and recorded, and the group consolidated on or before 1896. On November 9, 1895, Hugo Deprizen was appointed administrator of the estate of J. F. Kappes, deceased. The administrator expended five hundred dollars in assessment work on these consolidated claims in 1896, by running a tunnel in the Pride of the Hills mine, the work being completed on November 28, 1896. This work was done for development work, for the benefit of the five claims named. On December 24, 1896, Deprezin as administrator, and under an order of the Probate Court, and by consent and agreement of all the heirs and parties interested in the estate of J. F. Kappes, deceased, entered into a contract to sell, bond, and lease said five claims to Valentine Kramer, for ten thousand dollars, of which sum $ 1,563.31 was paid in cash with an option to pay the balance in two years. Kramer went into possession and at work on the five claims in December, 1896, and continued at work until January 7, 1897. On January 11, 1897, Kramer assigned his contract to Kirby, and on February 12, 1897, Kirby assigned his contract to the respondent, a corporation organized under the laws of the State of Utah. From January 5, 1897, to the time of the trial, continuous work was done by the respondent and its grantors on the property. George Kappes had previously to 1896, conveyed his interest in the claims to J. F. Kappes. The respondent, in its answer, denied all the allegations of the complaint, and alleged that the plaintiff had no right, title, or interest in said claims, and is not, and never was, entitled to the possession thereof. The Steeple Chase mining claim claimed by the appellants as having been located by their grantor, January 1, 1897, is the same ground as the Mormon Chief, included in said group, and conveyed by the administrator of J. F. Kappes, by lease, bond, and sale. This is the only claim involved in this litigation. The jury returned a verdict in favor of the defendant, and the plaintiffs appeal.

After stating the facts, Miner, J., delivered the opinion of the court.

The appellants contend that after having made a prima facie case, and no sufficient evidence of the location of the claims appearing, that the court erred in refusing to instruct the jury that unless it appeared to their satisfaction, from the evidence, that George Kappes and J. F. Kappes, the persons who located the Pride of the Hills, were citizens of the United States, or had declared their intention of becoming such at the time of making of the location in question, they acquired no right under Sec. 2319, Rev. Stat. of the United States, and the location made under which the respondent claims, is invalid.

The five claims had been consolidated for the purpose of doing the work for the benefit of all upon one claim. The location notice for each claim was shown in evidence by the defendant, as was also testimony tending to show that the assessment work for 1896 was done on the Pride of the Hills for the benefit of the five claims, and evidence was given tending to show, in some degree, that J. F. Kappes was a citizen at the time he located the claims, and received a conveyance thereof from George Kappes.

The authorities bearing upon the question in issue are in conflict. From a review of all of them, upon this question, we conclude that if Kappes, although not a citizen perform all the acts necessary to make a valid location of the claim, and claimed to be the owner thereof, as the proof tends to show, and that he or his administrator performed the work necessary to keep his claim good had he been a citizen, until the administrator by order of the court and by consent of the heirs conveyed the claim to the defendant or its grantors, and the defendant was a citizen of the United States when it received the conveyance, and after the conveyance to it took possession and control of the claims, and kept up the monuments and performed the necessary conditions to keep the claims good, its grantor, being a citizen, carried a good and valid right to the claims, as against the plaintiffs, from the date of the conveyance to it, and its grantors, provided no other right attached in plaintiff's favor, prior to such conveyance and the subsequent performance of the required conditions by it and its grantors. The respondent being a corporation, organized under the laws of Utah is a citizen of the State. No question is raised concerning the citizenship of respondent's grantors. The defendant and its grantors acquired the conveyance before the plaintiff located his claim, and the title vested in the defendant, even although the original locator was an alien. North Noonday Co. v. The Orient Co., 6 Sawy. 299, 1 F. 522; 9 Morrison Mining Reports, 529; Manuel v. Wulff, 152 U.S. 505, 38 L.Ed. 532, 14 S.Ct. 651; 1 Lindley on Mines, Secs. 232, 233, 234.

This action does not involve the right of possession of any ground except the Mormon Chief. This is not an application for a patent, nor does the claim arise under Sec. 2326, Rev. Stat. U.S.

After an examination of all the authorities, we conclude that as a general rule it is true that only citizens of the United States can locate mining claims; but it has been held in the case of Manuel v. Wulff, 152 U.S. 505, 38 L.Ed. 532, 14 S.Ct. 651, that this is a question that can only be asserted by the government. In a contest by individuals, as in this case, which is an action in ejectment, that question does not arise. When a party applies for a patent, the government is interested, and in a case of that kind the citizenship of the parties must be shown before they would be entitled to a patent. This not being an action for a patent, but an action in ejectment for the possession of the Mormon Chief, the question...