Worthen v. Sidway

• Decision Date: 27 February 1904
• Citation: 79 S.W. 777,72 Ark. 215
• Parties: WORTHEN v. SIDWAY
• Court: Arkansas Supreme Court

79 S.W. 777

72 Ark. 215

WORTHEN v. SIDWAY

Supreme Court of Arkansas

February 27, 1904

Cross appeals from Newton Circuit Court ELBRIDGE G. MITCHELL Judge.

Action by W. B. Worthen and others against H. T. Sidway and others. Plaintiffs have appealed. Reversed in part and affirmed as to residue.

Decree affirmed.

John B Jones, for appellants.

In an adverse title, each party must prove his own title. 17 Col 243; 2 P. 920. Title to mining claims on the public domain may be acquired by the statute of limitations. Rev. St. U. S § 2332; 104 U.S. 636; Barringer & Adams, Laws of Mines and Mining, 568; 8 F. 865; 3 Sawyer, 634; 9 Nev. 240; 83 Cal. 302; 9 Nev. 240; 104 U.S. 279; 114 Cal. 100; 42 F. 99; 17 Cal. 44, 108; 34 Ark. 193; 30 Ark. 655; 40 Ark. 243; 42 Vt. 473; 18 How. 50; 144 U.S. 509; 148 U.S. 301. A mining claim in the actual possession of one claiming under color of title in good faith under the mining laws, rules and customs is not open to relocation. 100 U.S. 256; 96 U.S. 513; 104 U.S. 279; 20 Cal. 209; 31 Cal. 390; 30 Cal. 355; 7 Nev. 219; 99 U.S. 262; 11 F. 125; 10 Sawyer, 246; 4 F. 705; 2 P. 919; Lindley, Mines, § 217. Forfeiture does not arise from failure to do annual work. It requires the intervention of a third party and a relocation. 1 Morrison, Min. Rep. 536. Forfeitures are odious in law and must be clearly proved by the party alleging it. 130 U.S. 301. An adverse locator must show forfeiture of his adversary affirmatively. 1 F. 522; 104 U.S. 279; 58 F. 293; 25 P. 785; Lindley, Mines, 48; 1 Nev. 215; 130 U.S. 291. The failure to mark the locations as required is absolutely fatal to its validity. Barringer & Adams, Mines and Mining, 228, 234, 477; Lindley, Mining, § 454; 160 U.S. 318; 58 F. 114; 4 F. 704; 58 F. 113; 78 Cal. 593; 83 Cal. 296. Posting notices not sufficient. Barringer & Adams, Mines and Mining, 235; 53 Cal. 217. Omitting to refer to some natural object make the certificate void. 8 Col. 586; 46 P. 661; 27 P. 726; 30 P. 364; 13 Nev. 462. An easement may be abandoned. 110 N.Y. 595; 16 Wend. 539. Without the discovery of mineral, there can be no location. 13 L. D. 86; 18 L. D. 81; 19 L. D. 568; 22 L. D. 409; 5 McCrary, 298; 115 U.S. 45.

Pace & Pace, for appellees.

To determine the possessory right, each party must rely upon the strength of his own title. 115 U.S. 50. The location made by Cantrell was a sufficient appropriation. 113 U.S. 568; 18 Wall. 271; 23 Wall. 374; 99 U.S. 265; 95 U.S. 760; 6 Pet. 29; 12 Wall. 177; 16 Wall. 240; 107 U.S. 402; 130 U.S. 291; 37 P. 480; 95 F. 911; 13 Nev. 442; 160 U.S. 303; 183 U.S. 563; 1 Mont. 235; 2 Idaho 244; 70 F. 455. Appellants forfeited their right to enter and mine the land by the failure to do assessment work. Rev. Stat. U. S. § 2324; 111 U.S. 350; 65 Cal. 565; 3 Utah 159; 7 Col. 178. Appellants failed to resume work in 1899. 104 U.S. 279; 16 Mont. 234; 21 L. D. 446; 127 U.S. 471; 1 Morrison, Min. Rep. 114; 29 L. D. 62; 163 U.S. 445; 65 Cal. 565; 4 Mont. 550; 20 Cal. 198. Appellees are entitled under their cross-complaint to a decree for a writ of possession. 160 U.S. 318; 1 F. 522; 78 Cal. 539; 83 Cal. 296; 70 Ark. 525; 12 Ark. 296; 96 U.S. 513.

John B. Jones, for appellants in reply.

No specific marking is required. 60 F. 531. The notices were a sufficient location. 160 U.S. 303. The record of the claim must refer to the object. 11 F. 677; 130 U.S. 291. In general, the rules applicable to real property apply to mines. 42 F. 99; 104 U.S. 636; 152 U.S. 505. One can hold as many locations as he can purchase, and rely upon his possessory title. 104 U.S. 636; 25 F. 337.

OPINION

BATTLE, J.

The west half of the northeast quarter of section 31, township 16 north, range 21 west, is in Newton county, in this state, and is mineral lands, containing zinc, a valuable metal for commercial purposes. On the 21st of June, 1889, W. S. Allen, W. H. A. Reeves, A. J. Nicholson and J. B. Hayles located a placer mining claim on the west half of the northwest quarter of the northeast quarter of said section 31. On the 12th day of July, 1889, S. E. Allen, F. E. Nicholson and E. C. King located a placer mining claim upon the west half of the southwest quarter of the northeast quarter of the same section; and on the 23d of July, 1889, Ida King, W. S. Allen and Lucinda Reeves located a placer mining claim upon the east half of the southwest quarter of the northeast quarter of the same section. In December, 1889, W. B. Worthen, W. G. Whipple, M. F. Locke and John B. Jones contracted with said locators to purchase said locations or claims, except one-fifth interest therein claimed by H. T. Sidway, with others, for the sum of $ 5,000, and agreed to give T. M. Gibson and W. S. Allen, each, one-seventh interest therein, in consideration that they had assisted in making the purchase, and that they would look after and superintend the mining on the claims. On the 10th of April, 1890, said locators conveyed the claims located by them to T. M. Gibson in trust for himself, Worthen, Whipple, Locke, Jones and Allen; and on the 1st day of December, 1890, Gibson conveyed the same to himself and the others, for whom he held in trust. Gibson afterwards abandoned his interest, and left the state, leaving Worthen, Whipple, Locke, Jones and Allen sole owners, whom, for convenience, we shall hereafter call "Worthen and others."

On the 8th day of July, 1889, C. H. Lombard, F. M. Garvin and J. E. Andrews attempted to locate a lode claim on a portion of the lands upon which Worthen and others held claims, and upon the 10th day of July, 1899, attempted to make another location of a lode claim upon another portion of the same lands. They took possession, and did considerable work upon their claims. In this suit the court held that their claims were void, and they did not appeal.

H. T. Sidway acquired an interest in the claims of Lombard, Garvin and Andrews, and contracted with them to resist and aid in resisting the claims of Worthen and others; and thereafter rendered no assistance in holding or maintaining or developing the claims of Worthen and others; and in reply to a letter of John B. Jones, asking him to assist in protecting the same, wrote the following letter:

CHICAGO, August 15, 1899.

"John B. Jones, Esq., Little Rock, Ark.

"Dear Sir--I have just returned from Arkansas trip, and received your letter after I left P. Creek. When I arrived I found Garvin and Lombard men at work, and that they have done a considerable amount. On investigation I found that they had complied fully with the law, and it appeared to me that they had a very strong case. All of which would have been prevented had you not advised Allen to meet Reed, instead of locating a lode claim as I wrote and advised him to do. After going over the ground thoroughly, I concluded to accept the proposition made by Garvin and Lombard, and advised Allen to do the same. Our agreement with them of course affects our interest only, and we are therefore out of the fight.

"Yours truly,

"H. T. SIDWAY."

W. S. Allen also acquired an interest in the Lombard, Garvin and Andrews claims, and made the same contract with them that Sidway made. But he soon repented, repudiated his contract with them, and entered into performance of his contract with Worthen and others, with their consent, and assisted in improving, developing and maintaining their claims.

On the 6th day of July, 1889, M. C. Cantrell, T. R. Cantrell, J. B. Moss and W. A. Bradley, whom, for convenience, we shall hereafter call "Cantrell and others," attempted to locate a placer mining claim upon the west half of the northeast quarter of said section 31, and posted on a tree on the land the following notice:

"Notice is hereby given that the undersigned claimant, under the Revised Statutes of the United States, section 2331, chapter 6, title 32, act of May 10, 1872, and legislation supplemental thereto, and the local laws of Newton County Mining District of Arkansas, has this day located and by possessory right claims the exclusive right to hold, prospect and mine upon the following described land lying in the county of Newton and state of Arkansas, to-wit: west half, northeast quarter of section 31, township 10 north, range 21 west, including all leads, lodes, dips, spurs and angles, with a view of obtaining a patent to the same. The name of this claim is the Independence, Lot No. --. All persons are notified not to trespass on the same.

"Located this 6th day of July, 1899.

"M. C. CANTRELL, T. R. CANTRELL,

J. B. MOSS, W. A. BRADLEY.

"Witnesses: A. J. HUDSON, JESSE HICKMAN."

Further than this they traced no boundary lines, and performed only $ 20 worth of work on their claim.

On the 11th day of December, 1899, W. S. Allen, S. E. Allen, John B. Jones and Oza Andrews, native-born citizens of the United States, whom, for convenience, we shall hereafter call "Allen and others," located a placer mining claim upon the east half of the northwest quarter of the northeast quarter of said section 31, and upon other lands, and surveyed the same, and at each corner made a monument by piling rocks and driving stakes two and a half inches in diameter and five or six feet in height, and posted upon a tree at one of the corners the following notice:

"We the undersigned, having complied with the requirements of chapter 6, title 52, of the Revised Statutes of the United States, and the local customs and laws of Newton County Mining District, have located, to occupy, prospect, mine and hold by possessory right, the following described lands to-wit: the northeast quarter of the northeast quarter of section 31, and the east half of the northwest quarter of northeast quarter of said section 31, both in township 16 north, range 21 west; also the east half of the...