Zimmerman v. Funchion

• Decision Date: 04 May 1908
• Docket Number: 1,455.
• Citation: Zimmerman v. Funchion, 161 F. 859 (9th Cir. 1908)
• Parties: ZIMMERMAN et al. v. FUNCHION et al.
• Court: U.S. Court of Appeals — Ninth Circuit

161 F. 859

ZIMMERMAN et al. v. FUNCHION et al.

No. 1,455.

United States Court of Appeals, Ninth Circuit.

May 4, 1908

McGinn & Sullivan, J. C. Campbell, W. H. Metson, F. C. Drew, C. H Oatman, and J. A. MacKenzie, for plaintiffs in error.

T. C West, for defendants in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This was an action of ejectment tried before the court below by stipulation of the parties without a jury, and resulted in findings and judgment for the plaintiffs, who are the defendants in error here. The subject of the action is a strip of mining ground in the Fairbanks mining district of Alaska covered by Creek placer mining claim No. 6 Above Discovery on Dome Creek, under which the defendants in error claim, and by bench claim No. 6 First Tier Right Limit of Dome Creek, under which the plaintiffs in error claim. It is undisputed that the Creek claim was the prior location; it having been located by Funchion on the 17th day of September 1902, for one John C. Ross, to whose interest Funchion and his codefendant in error succeeded prior to the bringing of the action.

The bench claim was located May 12, 1904, by Zimmerman. It turned out that the placer claim, as a matter of fact, contained 21.7 acres-- an excess of 1.7 acres over the legal limit of 20 acres prescribed by statute for placer claims. It is well settled that the excess did not render the entire Creek claim void, but that it was void only as to the excess. Jupiter Mining Co. v. Bodie Cons. Min. Co. (C.C.) 11 F. 666; English v. Johnson, 17 Cal. 108, 76 Am.Dec. 574; Thompson v. Spray, 72 Cal. 528, 14 P. 182; Howeth v. Sullenger, 113 Cal. 547, 45 P. 841; Patterson v. Hitchcock, 3 Colo. 533; Taylor v. Parenteau, 23 Colo. 368, 48 P. 505; Hansen v. Fletcher, 10 Utah, 266, 37 P. 481; McPherson v. Julius, 17 S.D. 98, 95 N.W. 435; McElligott v. Krogh (Cal. Sup.) 90 P. 825; Lindley on Mines, Sec. 362; Snyder on Mines, Sec. 398.

In McIntosh et al. v. Price et al., 121 F. 716, 58 C.C.A. 136, we held, and rightly held, that where a prior locator is in the actual possession of a claim, which as a matter of fact exceeds the legal limit of 20 acres, and is diligently working the same in good faith, he is at liberty to elect what portion of the claim he will reject as the excess, saying:

'We are very clearly of the opinion that, if any portion of the ground located by the Kjelsbergs was subject to relocation as being in excess of the permitted width, the owners thereof in possession, under the circumstances found by the trial court, could not be deprived of the right to select the portion thereof which they would elect to hold, and that another locator had no right to enter upon that portion of the claim in which they were working and which was the valuable portion thereof, and oust them from possession by making a location thereon. The defendants in error were given no notice that the width of their claim was excessive, or that any part of their location was void, and they were given no opportunity to draw in their lines so as to comply with the local mining regulations. The policy of the mining laws of the United States does not permit a locator to thrust out of the possession of his discovery and the pay streak of his claim one who has located a placer claim in attempted compliance with the mining rules and laws, and who is actually engaged in mining upon that portion of his claim.'

While the counsel for the plaintiffs in error concede that to be the law, they contend that where such prior locator is not in the actual possession of the claim containing an excess over the legal limit of such claims, and knowingly refuses or neglects to draw in his lines so as to embrace the legal limit only, any other prospector is at liberty to take such excess within another location from any part of the prior one; that otherwise such prior locator might hold the excess however great, indefinitely. The question suggested is an important one, but we do not find it necessary or proper to decide it in this case, being of the opinion that it...