Independence Placer Mining Co. v. Knauss

MORGAN, C. J. On March 7, 1905, the Aggy, Independence and Moose planer mining claims were located, and on October 30, 1906, the locators conveyed them to respond — 272 — ent. While it does not appear that the original Aggy location has ever b^en abandoned respondent’s employees, on September 17, 1913, relocated the ground embraced within that claim as three claims called the Aggy, Gold Dollar and Falls, and October 13, 1913, conveyed the same to respondent. On May 29, 1916, Jack Moore and W. It. Simons, acting for and on behalf of appellants, located, and on June 5, 1916, caused to be recorded notices of location of, the Montana, Virginia, Oregon, Texas, Kentucky, Idaho, Missouri, Illinois and Utah placer mining claims. Because of conflict in these locations respondent commenced this action in Clearwater county, where the ground is situated, to quiet its title. The cause was transferred to and tried in Kootenai county where a decree was entered quieting respondent’s title, from which and from an order denying a motion for a new trial appeals have been taken. The appeals were heard together and will be disposed of in one opinion. Appellants demurred to the complaint, generally and specially, and have assigned as error the failure of the court to sustain their special demurrer, which was based upon the ground that portions of the complaint were ambiguous, unintelligible and uncertain. It is insisted that the complaint does not show where respondent’s claims are situated; that their description is not pleaded with sufficient accuracy so they may be found and identified therefrom, and that the complaint does not show that the ground was properly located as required by the laws of the United States and of the state of Idaho. It is alleged in the complaint “that heretofore and prior to the commencement of this action there were duly and regularly located on Independence Creek and Moose Creek, in old'Moose City mining district, Clearwater County, Idaho, the following described placer mining claims: Aggy, Gold Dollar, Falls, Independence and Moose, all of which were located by the predecessors in interest of the plaintiff, in the manner required by law, and were by divers and mesne conveyances conveyed to and became the property of the plaintiff.” Respondent also alleged its ownership and adverse — 273 — possession, for more than five years prior to the commencement of the action, of the mining ground in question. It was not necessary for respondent to allege in detail' the manner in which the claims were located, nor the qualifications of the locators. It was necessary to allege the ultimate fact of its interest in, or claim to, the property and in that particular the complaint is sufficient. (Hammitt v. Virginia Min. Co., ante, p. 245, 181 Pac. 336.) It is true the property cannot be identified by the description found in the complaint. However, at the trial respondent introduced the notices of location of its claim, together with oral testimony touching their location and description, and this evidence was admitted without objection that the complaint was insufficient. The record discloses that on August 29, 1913, Jack Moore and another man entered into a contract with respondent whereby they leased this ground for a period of five years, and that during the years 1913 and 1914 they and their employees performed the assessment work thereon. There is conflict as to whether or not the assessment work was performed in 1915. The trial court found it was, and there is sufficient evidence to justify the finding; also to establish that it was done by Moore and W. R. Simons. There is no dispute that Moore and Simons spent the greater part of the summer of 1915 on and about the ground in question. It is entirely clear that when they located this ground for and on behalf of appellants, in 1916, they knew of the conflict between the claims they were locating and those of respondent, and it is equally clear that appellants were not placed at a disadvantage, nor deprived of any substantial right, by the insufficiency of the description, in the complaint, of respondent’s claims. If the failure of the trial court to sustain appellants’ special demurrer was error it does not, in view of these circumstances, justify a reversal. C. L., see. 4231, provides: “The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties and no judgment — 274 — shall be reversed or affected.by reason of such error or defect.” (Smith v. Peterson, 31 Ida. 34, 169 Pac. 290, and cases therein cited; Strong v. Oregon Short Line R. R. Co., 31 Ida. 48, 169 Pac. 179.) Appellants question the sufficiency of the notices of location of respondent’s claims and insist that they do not contain a statement of the distances and directions from the posts upon which they were placed to natural objects or permanent monuments as is required by C. L., sec. 3222. The descriptions contained in the location notices of respondent’s original claims are as follows: The Independence: “Beginning at corner No. 1, which is a stake not less than four inches in diameter and four feet high, which initial point is situated about 300 feet westerly from the mouth of Independence Creek at its junction with Moose Creek, thence running 545% rods northerly to corner No. 2; thence 36% rods easterly to corner No. 3; thence 545% rods southerly to corner No. 4; thence 36% rods westerly to place of beginning.” The Aggy: “Beginning at corner No. 1, which is a stake not less than four inches in diameter and four feet high, which initial point is situated at the northwest comer hereof, about 500 feet southeast of the Independence cabin, thence running 640 rods southeasterly to cornerNo. 2; thence 5 rods southerly to corner No. 3; thence 640 rods northwesterly to corner No. 4; thence 5 rods northerly to place of beginning. ’ ’ The Moose: “Beginning at corner No. 1, which is a stake not less than four inches in diameter and four feet high, which initial point is situated eight rods above the flume of the Independence mining claim, on the northerly side of Moose Creek, thence running 36% rods southerly to corner No. 2; thence 558 rods westerly to corner No. 3; thence 36% rods northerly to corner No. 4; thence 558 rods easterly to place of beginning.” It will be observed that the Independence claim is tied to the junction of Independence and Moose Creeks; that the Aggy is tied to the Independence cabin, and the Moose to the — 275 — flume of the Independence claim, reference also being made to the northerly side of Moose Creek. The junction of Independence and Moose Creeks is a natural object, and the cabin and the flume are permanent monuments, within the meaning of C. L., sec. 3222. Mineral deposits are frequently discovered in the wilderness, remote from a government survey. These discoveries are usually made by men who are not equipped with proper instruments, nor possessed of sufficient education, to enable them to correctly run lines, make measurements, and accurately describe the ground sought to be located. Some of these difficulties, at least, attended the location of respondent’s claims. In such a case the law does not exact the impossible, but the rule has been thus stated: “If, by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient.” (Farmington Gold-Min. Co. v. Rhymney Gold & Copper Co., 20 Utah, 363, 77 Am. St. 913, 58 Pac. 832; Morrison v. Regan, 8 Ida. 291, 67 Pac. 955; Bismarck Mt. Gold Min. Co. v. North Sunbeam Gold Co., 14 Ida. 516, 95 Pac. 14; Snowy Peak Min. Co. v. Tamarack and Chesapeake Min. Co., 17 Ida. 630, 107 Pac. 60; Flynn Group Min. Co. v. Murphy, 18 Ida. 266, 138 Am. St. 201, 109 Pac. 851.) Tested by this rule, respondent’s notices are sufficient. Appellants question the sufficiency of the evidence to sustain the findings. An examination of the record discloses that while there is conflict in the testimony, the case is well within the rule that findings of fact, made by a trial judge who has had the benefit of observing the demeanor of witnesses upon the stand and of listening to their testimony, will not be disturbed because of conflict if the evidence in support thereof, if uneontradicted, would be sufficient to sustain it. Other assignments of error have been presented, but in view of the foregoing conclusions we do not deem a discussion of them necessary. — 276 — The judgment and order appealed from are affirmed. Costs are awarded to respondent. Rice and Budge, JJ.,-concur.