Brown v. Levan

MORGAN, C. J. (After Stating the Facts.) — The specifications of error are as follows: “1. The court erred in granting the motion for and entering judgment of nonsuit; 2. The court erred in refusing to admit the evidence of Hastings as to» the value of the ore extracted from the Magpie claim by defendants, based upon samples taken by witnesses from the vein surrounding the ore that had been extracted.” The ground upon which the motion for nonsuit was made and sustained is - “Because said location notice fails to designate either natural objects or permanent monuments, as required by the Revised Statutes of the United States (section 2324), so that the location of the claim could be accurately determined; and because800 said notice does not contain a description of the locality of the claim by reference to natural landmarks or fixed objects and contiguous claims, so as to render the situation or locality of the claim reasonably certain, as required by section 3103 of the Revised Statutes of Idaho.” Section 3334 of the Revised StaU utes of the United States requires that all records of mining claims shall contain such a description of the claim or claims, located by reference to some natural object or permanent monuments, as will identify the claim. In the case of Drummond v. Long, 9 Colo. 538, 13 Pac. 543, the location notice, after describing the boundaries of the claim, states further: “The discovery shaft being situate upon said lode within the lines of said claim in Uncompaghre mining district, county of La Plata, territory of Colorado, on the southwest side of Mt. Hardon, in Portland gulch, about fifteen hundred feet north of the Hawkeye lode.” With reference to this location notice the court says: “In the certificate before us we do not find any such reference to either a natural object or a permanent monument as meets the substantial requirements of the statute. Describing the lode as being on the southwest side of Mt. Hardon and in Portland gulch locates the lode generally. It is not, however, that definite location by reference which the statute contemplates” — citing Faxon v. Barnard, 4 Fed. 703. “The certificate also describes the discovery shaft of the Portland as being about fifteen hundred feet north of the Hawk-eye lode. The evidence discloses nothing respecting the character of the Hawkeye lode. We assume, however, that it has been duly located in compliance with the laws of Congress and of the state; that it is in the usual form of a parallelogram, fifteen hundred feet in length by three hundred feet in width; and that it contains about ten acres. A tract of land of such dimensions cannot be treated either as a natural object or permanent monument within the meaning of the act of Congress. The discovery shaft of the Portland is not tied definitely to any corner or monument of either the location or lode. From what point on the Hawkeye location or lode- is one to start to find and identify the discovery shaft of the Portland? With the starting point anywhere in a parallelogram of ten acres, the — 801 — discovery shaft is anywhere about fifteen hundred feet distant in ten acres to the north.....Under such conditions, identification with that reasonable certainty required by the statute is an impossibility, and it cannot be said that the statute in this respect has been complied with. To hold otherwise would leave the requirement of but little practical utility. The insufficiency of the location certificate is apparent upon its face, and we do not see that it can be aided by evidence aliunde. The effect of the omission is to leave the certificate of location void” — citing Gilpin Co. Min. Co. v. Drake, 8 Colo. 586, 9 Pac. 787. In Gleeson v. Mining Co., 13 Nev. 462, the court says: "The object of the law in requiring the location to be marked on the ground is to fix the claim, to prevent floating or swinging, so that those who in good faith are looking for unoccupied claims in the vicinity of previous locations may be enabled to ascertain exactly what has been appropriated in order to make their locations upon the residue. We concede that the provisions of the law designed for the attainment of this object are most important and beneficent, and they ought not to be frittered away by construction.” In Faxon v. Barnard, 2 McCrary, 46, 4 Fed. 704, the court says: “The description of the location of the mining claim is as follows: ‘Situate on the north side of Iowa gulch, about timber line, on the west side of Bald Mountain. Said claim is staked and marked as the law directs.""" Of this the court says: “It is utterly impossible to find in this language any reference to a natural object or permanent monument defining the location, and the only question is as to the •effect of the omission. The act of Congress requires such reference to be made in the description of a claim (Rev. Stats., sec. 2324), and the state legislature has declared that a certificate shall give such description as shall identify the claim with reasonable certainty.” In Mining Co. v. Drake, 8 Colo. 589, 9 Pac. 789, the description was as follows: “Beginning at the westerly end of the Gilpin County Mining Company’s property •on the Williams lode in Lake Gulch mining district, running thence in a westerly direction a distance of fifty feet to the easterly end of Packard and Updegraft’s property on said lode.” Of this .description the court says: “It is conceded that the — 802 — claims referred to are patented claims, and they may supply the permanent monuments required by the act of Congress. Still the references thereto in the location certificate, and the descriptions of the claim located, are too indefinite to enable' the same to he fully identified, or its boundaries readily traced from this certificate alone. ‘Beginning at the westerly end of a certain mining claim. At what point of this westerly end?’ Was it at the corner, or in the center, or some other point on the line of this westerly end? The certificate does not tell. ‘Sunning thence in a westerly direction a distance of fifty feet to the easterly end of Packard and Updegraft’s property on said lode.’ What part of the easterly end of this property did this line intersect? Where was the discovery shaft situated with reference to this line? To what fixed point is said shaft or any other part of said claim tied? It is apparent that no-, information is furnished by tins certificate which will enable anyone to trace the boundaries of this claim. The discovery shaft is tied to nothing definitely, nor is any corner or point of the claim, so far as appears from this record. The statute pronounces such a location certificate void. There was therefore no error in rejecting it.” In Darger v. Le Sieur, 8 Utah, 160, 30 Pac. 364, the location notice was as follows: “This is-to certify that we, the undersigned, have this date located and claim fifteen hundred feet in length on this ledge of shale and wax, and three hundred feet on each side of the center of location. We claim three hundred feet running east, and twelve hundred feet running west from the monument. This ledge is-situated up near the head of the right-hand fork of what is-known as ‘Tie canyon,’ about five miles from the Denver and Bio Grande Railroad, in Utah county,” etc. With reference-to this notice, the court says: “We think the court erred in admitting in evidence plaintiff’s location notices. They are fatally defective, and valid locations cannot be made under them. The Revised Statutes of the United States require that there-must be such a description of the claim located, by reference to-some natural object or permanent monument, as will identify it. Assuming that the Denver and Rio Grande Railroad had a track in Utah county, an officer armed with a writ of restitution — 803 — under the verdict- and judgment could not, from the description given, put plaintiffs in possession of their claims. They are described as being about five miles from the railroad track, but in what direction, or from what point on the railroad, is not stated.” In Drummond v. Long, 9 Colo. 540, 13 Pac. 545, the court says, with reference to what may be designated as a permanent monument: “The intention of the provision is to give one seeking the locus of a recorded claim something in the nature of an initial point from which to start, and, following the course or distance given, find with reasonable certainty the claim located. The identification must be by reference to some natural object or permanent monument. Stone monuments, blazed trees, the confluence of streams, the point of intersection of some well-known gulches, ravines, or roads, permanent buttes, bills, mining shafts, etc., are enumerated as satisfying the requirements of the law. In the certificate before us we do not find any such reference to either a natural object or a permanent monument as meets the substantial requirements of the' statute.” In Dillon v. Bayliss, 11 Mont. 171, 27 Pac. 726, the court says: “We are prepared to concede that, no matter how permanent and prominent the monument may be, or how conspicuous and certain the natural object is, yet, if there was no intelligent reference to them that would identify the claim, the description would not satisfy the requirements of the United States law. The very object of selecting a natural object or erecting or referring to a permanent monument is, in the language of the statute, to identify the claim.” Judge Hallock, in Faxon v. Barnard, supra, says: “The government gives its lands to those citizens who may discover precious metal ores therein, upon the condition that they will define the subject of the grant with such certainty as may be necessary to prevent mistakes on the part of the government and on the part of other citizens who may be asking the same bounty. This is reasonable and necessary to justly administer the law, and therefore it must be said that without such description, a certificate of location is void:” (See, also, Darger v. La Sieur, supra.) To the same effect we might cite many other eases, if it were necessary. — 804 — From these authorities it is evident that it has become the settled law of the land that section 2324 of the Revised Statutes of the United States must be complied with, to wit: “That all records of mining claims shall contain such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.” The location notice of the Magpie describes the mine as located on the north side of North Willow creek. This portion of the reference is, of course, so indefinite and uncertain that it amounts to no reference at all, when taken alone. It is as indefinite as the reference of the Mary Belle lode in Darger v. Le Sieur, supra, which described the claim as situated about five miles from the Denver and Rio Grande Railroad track, near the head of the right-hand fork of what is known as “Tie canyon.” Concerning this notice of location and five others of the same tenor, the court in the above case says that they are fatally defective, and valid locations cannot be made under them. Rutting the whole reference together, which, of course, is proper, and is it any better? Namely, “situated on the north side of North Willow creek, about one-half mile from the Hurt mines, the direction being southwest; the Gem of the Woods claim on the north and the Kid claim on the south and the Greyhound on the east.” Concerning the Hurt mines, Bradford Hurt, the son of the first locator, testifies: “We [that is, Bradford Hurt and his father] were interested in four claims there. They were the Birthday, the Old Man, Gray Eagle, and the Silver Leaf. The mines which are known as the ‘Hurt mines'’ are the Birthday, Old Man, Gray Eagle, and Silver Leaf. The Silver Leaf is southeast of the Magpie — joins, or nearly joins, it. The Old Man is east of the Magpie. The Gray Eagle is east of the Old Man, and the Birthday is northeast of the Old Man. These claims do not all join. They do not connect exactly. The Silver Leaf does not join in the rest. The other three joined at the time. The Old Man is not one thousand feet from the Magpie. It possibly may be one thousand feet. It is six or eight hundred.” William Francis testifies: “I know about the Hurt mines — the Birthday, the Old Man mine, and the Silver Spray. There are a number of mines over there — 805 — known as the ‘Hurt mines/ The Silver Spray is southwest of the Magpie. The Old Man is one thousand feet east of the Magpie.” John Brown, the plaintiff, testifies: “Hurt has-three mines on North Willow creek, I believe- — the Silver Leaf, the Old Man, and the Birthday. Some call them the ‘Hurt mines/ Some call the Birthday the ‘Hurt mine/ and some call the Old Man mine the ‘Hurt mine/ Mr. Hurt has three mines over there, I believe. Hurt has an interest in the Silver Leaf, and some call it the ‘Hurt mine’ because he is in it.” No attempt was made to show that there was any mistake made in writing the location notice, and we must take it as we find it, and must presume that the intention was, as stated in the notice, to refer to the Hurt mines as a permanent monument by which to identify and from which to determine the location of the Magpie. Now, if we make a diagram of the Hurt mines, and place them in any position that 'will correspond with the testimony, then draw a line from the northwest to the southeast about one-half mile to the southwest of the Hurt mines, we shall see at once that half a dozen mines may bo located, and each one in a southwesterly direction from the Hurt mines, and all north of North Willow creek. It is not at all surprising that Mr. Hastings, the surveyor, at first said he could not find the mine from the location notice, and then, partially taldng it back, says that he did not try to. There was no discovery shaft or cut on the ground when .Mr. Hastings went there to survey the claim; nothing to indicate that any work had ever been done there. The discover stake might have been moved many times and no one unacquainted with the location could have discovered from the location notice that it had been so moved. We think it is the duty of the court to give mining notices and records a liberal construction, to the end of upholding a location made in good faith. But where the description and reference to a natural object or permanent monument is of such a character that a mining engineer could not find the claim from the location notice, as is evident in this case, and where it is such that the claim may be floated almost anywhere to suit the ground or to cover ore that may have been since discovered, it is clearly such a notice as cannot furnish a foundation for a valid location. — 806 — It appears from Mr. Hastings’ testimony that he placed the discovery at the point indicated in his testimony, not from any directions in the location notice, nor on account of any indications on the ground that any work had been done there, but from statements made by plaintiff; and hence all his measurements, being made from an uncertain point, were themselves uncertain, and the court is unable to say whether this was the original location or not. We may presume that plaintiff Brown was perfectly honest in pointing out the place of discovery, and the corners of the claim, as the evidence shows he did so point out the corners, to the surveyor; but where there is such uncertainty in the location notice we have no certainty of it at all. It is evident that the reference to some natural object or permanent monument to identify the claim must be such as to furnish a reasonable certainty that the locus of the claim has not been and could not well be changed. The naming of contiguous claims is a requirement of our statute, and was complied with; but the reference to a permanent monument must be such as will enable a skilled engineer, at least, to identify the claim without reference to contiguous claims the location of which is uncertain. Permanent monuments may exist before the location, or may be erected for the purpose of tying the claim to them; but then courses and distances from them to discovery stake or corner stakes or some other object on the ground must be stated with reasonable accuracy. The judgment of the court below is affirmed. Sullivan and Huston, JJ., concur.