Jorgensen v. McAllister

BUDGE, J. This is an action to quiet title to the Last Chance mica lode mining claim, and to restrain appellants from removing mica therefrom. The record discloses that the mine in question, containing 15,273 acres, was located on unsurveyed public domain on Aug. 1, 1883, as Mineral Survey No. 674, Lot No. 37, in the Robinson mining district, Latah county; that the U. S. Land Office at Lewiston issued to Paul F. Mohr, George Lauman, and Mary, Pauline and Jennie Jorgensen, a receipt for payment in full for said claim on May 27, 1890; that [184] a mineral certificate or patent was issued by the United States on Jan. 8, 1892, conveying the mining premises to the above-named parties, and was recorded in Latah county on Jan. 26, 1893; that Mary A. Jorgensen, having purchased the interests of Pauline and Jennie Jorgensen, is now the owner of an undivided three-fifths interest in the mine; that the estate of George Lauman, of which the Spokane & Eastern Trust Co. is trustee, is the owner of an undivided one-fifth interest, and that E. E‘. Rogers is the record owner of the remaining one-fifth interest. It further appears that the south half of township 41 north, range 2 west, B. M., was surveyed in September, 1883, and the plat thereof filed Sept. 13, 1884; that on March 8, 1894, 11,323.57 acres of land in Idaho was clear-listed by the federal government to the state, as lands for state normal school purposes; that a segregation .plat of see. 22 of said township, upon which appears a portion of the Last Chance mine, was filed in the office of the Surveyor-General of Idaho, on Mar. 29, 1906; that on June 6, 1906, the state contracted to sell the SW. % SW. % of sec. 22, which was part of the lands clear-listed to the state, to Alexander Monroe; that Monroe assigned his contract to W. C. McAllister on June 14; 1917; and that about ten acres of the Last Chance .mine is situated within said SW. % SW. % of sec. 22. Respondents base their claim of title to the mining premises upon the location thereof in 1883, the receipt and the mineral patent. The state of Idaho bases its claim upon the clear-list of March 8, 1894, and appellant McAllister relies upon the contract between the state and Monroe and the assignment thereof to himself in order to establish his title. Appellants contend that the land described in the mineral patent lies wholly outside the SW. y± SW. 14 of see. 22. The court found, however, that about ten acres of the mining premises are contained within the SW. % SW. 14 of said section, that its location was distinctly marked on the [185] ground and its boundaries could be readily traced, and that the calls and distances set forth in the mineral patent correctly describe and properly identify the premises in controversy. The principal questions presented by this appeal are whether the description contained in the mineral patent is sufficient, and if so, whether the lands therein described are situated within the SW. % SW. % of sec. 22, T. 41 N., R. 2 W., B. M., and if these questions may be answered in the affirmative, it must necessarily follow that the elearlist issued by the federal government to the state is void in so far as the Last Chance mining premises are concerned. In Bogard v. Barhan, 52 Or. 121, 132 Am. St. 676, 96 Pac. 673, the court said: “The rule for determining the sufficiency of a description in a deed or any other writing in relation to real property is: Can a surveyor, with a deed or other instrument before him, with or without the aid of extrinsic evidence, locate the land and establish the boundaries?” See, also, Law v. People, 80 Ill. 268. The mining premises here involved were described in the mineral patent by courses and distances from an artificial monument, established in accordance with the mining laws, and described as U. S. Mineral Monument No. 1, Robinson Mining District, which, in turn, was located with reference to natural objects. As was said in the case of Bell v. Skillicorn, 6 N. M. 399, 28 Pac. 768: “The rule in determining the exact locality of a tract or boundary of land is that recourse must be first had to natural objects; second, to artificial marks; and, third, to courses and distances.....It would make no difference whether said monuments were properly connected with the surveys of the public lands, .... ” Evidence was adduced at the trial tending to show that a competent surveyor was able to and did identify the mining premises here in controversy by means of the description contained in the mineral patent, and that the Surveyor186 General of Idaho, as disclosed in the segregation plat above mentioned, was able to locate the Last Chance mine partly within the SW. *4 SW. *4 of said sec. 22. (December 31, 1921.) 1. In. order to render an abstract of title admissible in evidence the abstracter must be qualified under the law, and must certify in substance that the abstract is a true and correct abstract of documents appearing upon the oficial records of the county. 2. The decree of distribution by the probate court in the matter of the estate of a deceased person is prima facie evidence of title in the distributee to the property described therein, when nothing appears upon the face of the decree showing lack of jurisdiction in the probate court. 3. A sheriff’s deed alone, unsupported by proof of the judgment and execution upon which it was issued, is not admissible in evidence and does not constitute prima facie evidence of title. 4. A party offering an executor’s or administrator’s deed in evidence must show that its execution was authorized by proof of the order of the court confirming the sale. G. W. Suppiger and L. H. Wheeler, for Appellants. The decree of distribution to tbe Spokane & Eastern Trust Co. without showing the jurisdiction of the court is not prima facie evidence of title, especially against the proof of title made to appellants by their abstract of title, and the findings of fact. (Miller v. Mitcham, 21 Ida. 741, 123 Pac. 941; Hilton & Dodge Lumber Co. v. Alwood, 141 Ga. 653, 81 S. E. 1119; Tucker v. Murphy, 66 Tex. 355, 1 S. W. 76; Cruse v. O’Gwin, 48 Tex. Civ. App. 48, 106 S. W. 757.) From an examination of the entire record we have reached the conclusion that the evidence supports the findings, and that the findings are sufficient to support the judgment. We have carefully considered all of the assignments of, error, but find no reversible error. The judgment is, therefore, affirmed. Costs are awarded to respondents. Rice, C. J., and McCarthy, Dunn and Lee, JJ., concur.