Yosemite Gold Mining Milling Company v. Emerson

• Decision Date: 06 January 1908
• Docket Number: No. 69,69
• Parties: YOSEMITE GOLD MINING & MILLING COMPANY, Plff. in Err., v. E. L. EMERSON, Mrs. A. L. Emerson, F, F. Britton, Jacob Miller, F. L. Argall, and Harry Argall
• Court: U.S. Supreme Court

208 U.S. 25

28 S.Ct. 196

52 L.Ed. 374

YOSEMITE GOLD MINING & MILLING COMPANY, Plff. in Err.,

v E. L. EMERSON, Mrs. A. L. Emerson, F, F. Britton, Jacob Miller, F. L. Argall, and Harry Argall.

No. 69.

Argued December 13, 1907.

Decided January 6, 1908.

Messrs. W. C. Kennedy and A. H. Jarman for plaintiff in error.

[Argument of Counsel from page 26 intentionally omitted] Messrs. John E. Laskey and J. P. O'Brien for defendants in error.

[Argument of Counsel from page 27 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

This case originated in an action brought to quiet title to a certain mining claim called the slap Jack Mine, situated in Tuolumne county, California. The case was twice in the supreme court of California. In the first trial the superior court of Tuolumne county gave judgment in favor of the then defendant McWhirter; on appeal this judgment was reversed. 133 Cal. 510, 65 Pac. 1036. After the case went back, the present plaintiff in error, the Yosemite Gold Mining & Milling Company, as the successors in interest to McWhirter and defendants Argall, was made a defendant.

As to the Argall interest, covering nine twentieths of the property, based on the same location, while judgment was rendered in the court below, as to this interest, against the present plaintiff in error, in the supreme court a new trial was awarded and the case remanded, and with that interest we have nothing to do upon this writ of error.

As to the remaining eleven twentieths, the court rendered a final judgment against the present plaintiff in error, Yosemite Gold Mining & Milling Company, decreeing that the defendants in error F. F. Britton and Anne L. Emerson were each the owner of one undivided fourth part of the claim, and defendant in error Miller the owner of the one undivided twentieth part thereof. 149 Cal. 50, 85 Pac. 122. To this judgment the present writ of error is prosecuted.

We proceed to examine the questions which are now in this court. The mining claim of the Yosemite Gold Mining & Milling Company, plaintiff in error, is based upon the attempted location thereof within the same limits as the original Slap Jack Mine, made by McWhirter on January 1, 1899, shortly after midnight. McWhirter undertook to 'jump' the former claim upon the theory that the assessment work for the year 1898 required by § 2324, Rev. Stat., as amended 1880, U. S. Comp. Stat. 1901, p. 1426, had not been done.

The first contention made by the plaintiff in error is that one Coyle, under whom the defendants in error claim title, never made a valid location of the mining claim, because he posted but one notice of location upon the claim. Under the authority of § 2324, Revised Statutes, supra, the miners of every mining district are given authority to make regulations not in conflict with the laws of the United States or any state or territory in which the district is situated. U. S. Comp. Stat. 1901, p. 1426. Section 3 of the mining rules and regulations of Tuolumne mining district of Tuolumne county, California, provides:

'Sec. 3. Mining claims hereafter located in said district upon veins or lodes of quartz, or other rock, or veins of metal, or its ores, shall be located in the following manner, to wit: By posting thereon two notices, written or printed upon paper, or some metallic or other substance, each to be posted in such manner as to expose to view the full contents of the notice, one of which shall be posted in a conspicuous place at each end of the claim. Said notices shall contain the name or names of locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim. Said notice may be in the following form, to wit:

"Notice is hereby given that the undersigned have taken up hundred feet of this vein or lode, and that the claim so taken up is described as follows: (Here insert description.) Dated ___ day of _____, 18 __.

A. B.

C. D.'

The supreme court of California held that its decision in the present case upon this question was concluded by the ruling made upon the first appeal, which decision continued to be the law of the case. Upon the first appeal (133 Cal. 510, 65 Pac. 1036) it was held that the failure to comply with the mining rules in this respect would not work a forfeiture of title, inasmuch as there was nothing in the rules which made noncompliance a cause of forfeiture; that, unless the rule so provided, the failure to comply with its requirments would not work a forfeiture. The court cited other California cases to the same point and cases from the supreme court of Arizona (Rush v. French, 1 Ariz. 99, 25 Pac. 816; Johnson v. McLaughlin, 1 Ariz. 493, 4 Pac. 130); also the decision of Judge Sawyer in Jupiter Min. Co. v. Bodie Consol. Min. Co. 7 Sawy. 96, 11 Fed. 666. There seems to be a conflict in state decisions upon this subject. The supreme court of Montana differs with the supreme court of California. King v. Edwards, 1 Mont. 235-241. As does also the supreme court of Nevada. Mallett v. Uncle Sam Gold & S. Min. Co. 1 Nev. 188, 90 Am. Dec. 484. Lindley, in his work on Mines, seems to prefer the California rule as a 'safe and conservative rule of decision, tending to the permanency and security of mining titles.' 1 Lindley, Mines, 2d ed. § 274. But,...