Treadwell v. Marrs

KENT, C. J. (after stating the facts). — It is contended by the appellee that the location certificate of the Buster claim was insufficient, both in law and in fact, and that the appellants could acquire no rights thereunder. The trial court held the certificate to be sufficient on its face, and found against the appellee in his contention that the evidence introduced upon the trial showed that the statements of the certificate as to the position of the claim were untrue in fact. We do not deem it necessary on this appeal to pass upon the correctness of either of the court’s rulings in this respect, as we are of the opinion that the record and the evidence in the case did not warrant a judgment in favor of the plaintiffs. This is an adverse suit, in which the plaintiffs seek to establish their right to possession of that portion of the Buster claim in conflict with the Copper Link. The only testimony that showed the boundaries, area, and extent of such alleged conflict, and upon which the court could base a judgment of right of possession therein in favor of the plaintiffs, was the testimony of the surveyor, Merritt. This — 342 — testimony the trial court ordered stricken out. Without this testimony, the plaintiffs could not recover, and the correctness of the' court’s ruling in this respect is the controlling question determinative of this appeal. The situation before the court was this: The plaintiffs were the owners of the Buster claim, having acquired it some seventeen years after its location. In the supposition that they were correctly tracing the boundaries of the claim, and approximately the position of the old monuments, shortly after acquiring the claim, they erected two new center end monuments and four corner monuments; the course and direc- ■ tion of the claim as so monumented being north, forty degrees east, and south, forty degrees west. Bight years thereafter, the defendant filed his application for a patent, and the . plaintiffs their adverse, and commenced this, their adverse, suit, in which they alleged a conflict based upon the position of the Buster as supposed and as monumented by Treadwell for them. After the adverse suit was brought, but prior to the trial, the plaintiffs discovered that the Buster as monumented by them did not conform with the calls of the location certificate of the claim, either as to direction or extent, or with the old monuments as the claim was originally located. On the trial the plaintiffs admitted that they must be held to have abandoned that portion of the Buster called for in the location certificate which lay south of the new south end line as shown by the monuments erected by them on the supposed south end line of the claim,- — to wit, some five hundred and fifty feet, — but claimed that they were entitled to that portion of the Buster as shown by the original monuments to be within the area of the conflict as alleged in the complaint. The theory of the plaintiffs was that the evidence showed that the original north center end monument, instead of being seven hundred and fifty feet north, forty degrees east, from the initial monument as shown by their adverse map and survey, was in fact two hundred feet north, forty degrees east, and that the original south center end monument, instead of being seven hundred and fifty feet south, forty degrees west, as shown by their adverse map and survey, was thirteen hundred feet south, forty degrees west; and they claimed the right to the possession of the ground where it conflicted, comprised in a claim, the north center end monument of which — 343 — was two hundred feet north, forty degrees east, of the initial monument, and the south center end monument of which was seven hundred and fifty feet south, forty degrees west, or the area as shown by the portion of the claim in the excluded conflict map, which is southwest of the heavy line drawn across the claim. This conflict they sought to prove by the testimony of Merritt, the surveyor. The trial court heard this testimony under objection, and subsequently ordered it stricken out. The erection of the monuments by the plaintiffs through their agent, Treadwell, had no effect in changing the rights of the plaintiffs, or in changing the position and location or boundaries of the claim, except in so far as it showed an abandonment of the southerly portion of the claim. No new location certificate was filed, and no amendment of the old was attempted. The claim remained, therefore, as originally located. But the adverse and the conflict, as pleaded, was based upon a survey and adverse map made by the surveyor from the monuments as erected by Treadwell. Manifestly, then, such survey and map, and the evidence based thereon, showing a conflict, could in no event be competent, unless the claim as originally located was as to direction and course identical with the direction and course as monumented by Treadwell. Passing by, without determining it, the question whether an attempt to prove such a conflict was not such a departure as in any event would render such proof inadmissible, we think the trial court rightly excluded the evidence introduced to show the conflict. The Treadwell monuments being valueless, in order to make the survey of Merritt and his testimony as to the conflict based thereon competent evidence, it was incumbent upon the plaintiffs to show that the claim as originally located was in accord with such survey to the extent of the conflict claimed. The claim as surveyed by Merritt ran north and south, forty degrees east and west, respectively. The location notice calls for a claim running north and south; manifestly, not the same. The plaintiffs contend that this location certificate ought not to be construed, however, as calling for the north and south end monuments as due north and south, but should be construed as permitting the location of these monuments, the one two hundred feet north, forty — 344 — degrees east, and the other approximately thirteen hundred feet southerly, but in a line forty degrees west from a north and south line; claiming that the evidence shows the existence at each of. said points of the original north and south end monuments. The well-settled rule in that respect is that, where the monuments are found upon the ground, or their position or location can be determined with certainty, the monuments govern, rather than the location certificate; but where the course and distances are not with certainty defined by monuments or stakes, the calls in the location notice must govern and control. In the case before us, however, the plaintiffs must not only show the existence and location of these monuments in order for them to control as against the location certificate, but, in order to enable them to be entitled upon their adverse to the possession of the ground alleged to be in conflict, they must establish the position of these north and south end monuments to be in fact the one two hundred feet north, forty degrees east, and the other to be south, forty degrees west, of the initial monument; for if these monuments are not so in fact located, then the course and distances and boundaries of a claim based upon them, which would be the true Buster claim, would not correspond with the course and distances and boundaries of the claim as surveyed and platted by the surveyor, Merritt, and his testimony as to the conflict would not describe the true conflict between the Buster and the Copper Link. It becomes necessary, therefore, to examine the testimony given with respect to the existence and location of these monuments. The only testimony in regard thereto is the testimony of the witnesses Boggs, Treadwell, Powers, and McDonald. The witness Boggs, who was one of the locators of the claim, testified: “ . . . Another [monument] was built a short distance northerly from there [the initial monument]. They stepped it off. It looked like 400 or 500 feet, and in a southerly direction another monument was built about 1,000 or 1,200 feet; I cannot tell exactly.” The witness' Treadwell, the agent of the plaintiffs, testified: “ . . . After that survey [in 1900], I was on the ground at a point about 200 feet in a northeasterly direction from the center monument, and saw a monument there in line with the center monument and with the monument at the north center end of the Buster, — 345 — erected by me, I should judge. This was also about in line with the south center end monument erected by me, and the center monument, but you could not see between them. The course we took was south, 40 degrees west. The last monument I have described was about 200 feet in a northeasterly direction from the center monument. The monument that Mr. Boggs pointed out to me, ... I understood him to point it out as the center monument, and also the location monument. ... In the fall of ’93 I placed some monuments on the property. I did it, in the first place, to outline the Buster, in order to make the locations on either end, as I was requested to make two locations, ... I went 750 feet northeasterly from the monument pointed out by Mr. Boggs, because I understood from him that that was the center monument of the claim. There was no location notice in the monument advising where to go. I looked for one, and I am sure it was not there. I had nothing to guide me in placing the monuments, except what I was informed by Mr. Boggs. I don’t think Mr. Boggs told me where to find the other monuments — what course and distance to go. He gave me the general course and the way the ledge ran. I went 750 feet northerly, 40 deg. east, because that was the general course of the formation. I followed the ledge, and was guided by that in taking the course. ... It was in March, • 1901, that I saw the monument of which I have spoken, about 200 feet northeasterly of the location monument. I don’t know whether it was there in June, 1900. I did not see it. I went over the ground. ... I went with Mr. Merritt. I asked him to make the survey, and he obtained his own location notice. I did not particularly look for monuments upon the ground in accordance with that notice with Mr. Merritt. I pointed out the monuments I had erected, and asked him to make a survey of these monuments. ” R. C. Powers, a witness, testified: “In June, 1900, I was a deputy U. S. mineral surveyor, and in that month made a survey of the Buster. ... I remember going in a northerly direction from this location monument on the mountain, looking over the ground up to the 750-foot point.. I cannot recollect that I found any kind of monuments between that location monument and the 750-foot monument at that time.....There were no intermediate monuments. ” McDonald, a witness, testified: “ Within — 346 — the last two years I found a monument about 1,200 or 1,400 feet from the location monument, in a southwesterly direction from the location monument. ... It was an old monument. I also found about 200 feet northeast, and in line with the initial monument, the remains of an old monument, the rocks considerably imbedded in the ground, and grass grown up around them. These three monuments were practically in line. I can’t remember just when I saw these. It was just before the first adverse came to trial. It was when we discovered that the location notice only called for 200 feet to the north, and we started a search for these monuments, discovering this old one in the center. ’ ’ Boggs, on the former trial of the case, testified: “The monument about 200 feet in a northeasterly direction was not very large. It was made out of stone. We could hardly see it. The brush had grown up. I saw these three monuments when I went out with Mr. Middleton, about two years ago. Just after the trial, I think, these three monuments looked to be about where the original monuments were placed by me in ’75, as near as I could recall. ... I didn’t go any farther, only went down that 200 feet to the north monument, and walked down there with him and back. ... I saw Mr. McDonald and Mr. Middleton go over to a monument in a southwesterly direction from the location monument. ■ I thought it was about 1,000 or 1,200 feet distant.” The testimony of the surveyor, Merritt, which was stricken out by the court, showed that in making his survey he did not go to either of the monuments now claimed to be the original north and south end center monuments of the claim. In describing the conflict, however, he starts from a point two hundred feet north, forty degrees east. He stated that after the survey, and just prior, to the second trial of the case, he went upon the ground, and ran a line from the initial monument two hundred feet north, forty degrees east, but he does not state that he found any monument there; and nowhere in the case is there any' testimony to show either that the north end monument is in fact situated at a point two hundred feet north, forty degrees east, from the initial monument, or that the south end center monument is in fact situate at a point 1,300 feet, or any other number of feet, south, forty degrees west; nor is there any testimony that any sur — 347 — veyor has run a line from the initial monument to either of these monuments, or surveyed them; nor any testimony to show that they, or either of them, are in a line forty degrees east and west, respectively, from the north and south line, or what is the correct course or distances of them, or either of them, from the initial monument. The trial court held as a fact that the testimony did not show that the monuments seen by the witnesses, as described by them, were the original monuments of the Buster. If the determination of the case depended upon this alone, we should feel inclined to hold that the testimony was sufficient to show that the north center end monument, as described by the witnesses, was one of the original monuments of the claim; but we are entirely in accord with the trial court in its holding that there is no evidence to show that these monuments were located, the one two hundred feet, or any other distance, north, forty degrees east, and the other south, forty degrees west, of the initial monument. Without this proof, there was nothing before the court to show that the conflict as testified to by Merritt was based upon a survey or a plat of a claim which had the course or distances or area of the Buster. No judgment describing the true conflict, or awarding possession to the plaintiffs, could be based upon his testimony, and the trial court was right in striking it from the record. The judgment of the district court will be affirmed. DOAN, J., and CAMPBELL, J., concur.