Van Buren v. McKinlet

SULLIVAN, J. — This is an action on an adverse claim upon nu application of respondent for a patent from the United States to the Bed Warrior lode mining claim, situated in West View mining district, Boise county, Idaho. The complaint is in the usual form, and alleges, among other things, that the ■appellant is the owner of the identical mining ground included in the boundaries of said Bed Warrior mining claim under the name of the Fair Pay lode mining claim. The cause came on for trial before the court with a jury, and on the trial the notice •of location of said Fair Pay claim was offered in evidence by the appellant. Objection was made to its introduction on several different grounds, and on the ground that no affidavit in writing was attached thereto, as required by the laws of this state (section 3104 of the Bevised Statutes, and amendments [98] thereto). The court sustained the objection. Deeds of conveyance made by the locators of said Fair Pay mining claim were offered in evidence, and were excluded on the objection of respondent. Thereupon the appellant called numerous witnesses to show that the assessment work required by law had not been done on the Bed Warrior claim for the years 1899 and 1900. Evidence on behalf of the respondent was then introduced to prove that the required assessment work had been done on said Bed Warrior claim, and rebutting evidence was introduced on the part of the appellant. The verdict and judgment were in favor of the respondent. A motion for a new trial was made, and overruled by the court. This appeal is from the judgment and order denying a new trial. The record shows that the Bed Warrior mining claim was located in 1892, and that in January 2, 1900, the grantors of appellant attempted to relocate the identical ground included in the Bed Warrior claim under the name of the Fair Pay claim, for the reason, as it is claimed, that the annual assess>ment work required by law had not been done on the Bed Warrior claim for the years 1899 and 1900. Upon that question the appellant introduced considerable evidence to prove that such work had not been done, and the respondent called several witnesses, who testified that it had been done. There was a serious conflict in the evidence on that point, and the jury found that it had been done. When there is substantial conflict in the evidence, this court will not disturb the verdict on the ground of the insufficiency of the evidence to support it. If the annual assessment had been done on the Bed Warrior , claim for the years 1899 and 1900, the ground was not open to location at the time the Fair Pay location was made. However, the main contention on this appeal is over the order of the court in refusing to admit the Fair Pay location notice in evidence; and it arises over the alleged affidavit attached to said notice of location. It is signed by M. A. Mitchell, one of the locators, and purports to have been sworn to before H. W. Dorman, district recorder, by W. J. Batchman, deputy. The contention is that there is no such an office as deputy district recorder, and therefore no such officer; hence, the [99] necessary affidavit was not sworn to before a person authorized to administer an oath. Section 3103 of the Kevised Statutes is as follows: “Every claim must be recorded within fifteen days from the time of the posting of the notice, in the district in which the same is situated, or at the nearest office to the claim. For the convenience of prospectors and locators, the county recorders of the several counties must appoint a deputy at any place where he may deem it necessary, and at all places more than ten miles distant from an existing office, whenever ten or more mining locators interested petition for the appointment of such deputy. TJpon the failure of any recorder to make the appointment of a deputy for ten days after a petition in writing has been presented to him, the resident miners at such district may appoint temporarily one of their number to act as recorder of the district, whose records shall be as valid as if made by a deputy, and must be entered by the recorder as hereinafter required: provided, that whenever at any time afterward the recorder appoints a deputy for such district or place, the authority of the person elected by the resident miners ceases.” Said section provides but two ways in which a recording officer for a mining district can be selected: (1) By appointment by a county recorder; (2) upon the failure of the county recorder to appoint within ten days after receiving the petition named in said section, the resident miners may appoint temporarily one of their number to act as recorder of their district. It is apparent from the record that H. W. Dorman had been selected by the resident miners as their district recorder, and was not appointed by the recorder of said Boise county as his deputy. However, in our view of the question under consideration, it makes no difference whether he had been appointed by the county recorder or selected by the resident miners of said district; for, in either case we know of no provision of law authorizing a deputy recorder to appoint a deputy, and no provision has been called to our attention that authorizes a district recorder selected by the resident miners to appoint a deputy. The legislature has named in our statute all of the different officers and persons who are authorized to administer oaths, [100] and among them are not enumerated deputies appointed by mining district recorders. We are therefore forced to the conclusion that there is no such officer as “deputy district recorder,” and that the affidavit attached to said location notice was not sworn to as required by law. It is contended by counsel for appellant that said “deputy district recorder” was a de facto officer, and for that reason his administration of said oath was authorized. The difficulty is there must be an office for a de facto officer to fill, and, as there is no such office as “deputy district recorder,” there can be no de facto officer to fill it. (See Mechem on Public Officers, 322.) It is contended by counsel for appellant that an affidavit is not necessary to make a valid location; that the law requiring it imposes a condition precedent upon citizens about to locate mining ground not contemplated by the laws of the United States, and in conflict with them, and therefore the state law imposing such condition is absolutely void. Under the provisions of section 2322 of the Bevised Statutes of the United States, state, territory, and local regulations are authorized to be imposed as a condition precedent to the possession of mining claims, not in conflict with the laws of the United States. Eequiring an affidavit to be attached to the location notice of a mining claim as provided by section 3104 of the Bevised Statutes is not in conflict with the provisions of said section 2322. It is a reasonable regulation that the legislature is fully authorized to make. (Dunlap v. Pattison, 4 Idaho, 473, 95 Am. St. Rep. 143, 42 Pac. 504.) The supreme court of Montana in several cases have held that the statute requiring an affidavit a location notice of a mining claim was not in contravention of the federal statutes. (McBurney v. Berry, 5 Mont. 300, 5 Pac. 867; McCowan v. McLay, 16 Mont. 234, 40 Pac. 602; Berg v. Koegel, 16 Mont. 266, 40 Pac. 605.) We have carefully examined the numerous errors assigned, and find no error in the record. The judgment is affirmed, with costs, in favor of respondent. Quarles, C. J., and Stockslager, J., concur.