Bakke v. Latimer

GUNNISON, District Judge. The one issue of fact upon which the action hinges is that of the alleged forfeiture of the claim by defendants. The plaintiffs assume the position that, because the defendants admit having ousted them, they are therefore out of court. That would be true if an ouster always were wrongful, but a person may be rightfully as well as wrongfully ousted. It is urged that, because plaintiffs have failed to plead their title, they cannot introduce evidence thereon, nor could judgment be rendered in their favor. The difficulty with plaintiffs’ position is that they are here in an action in ejectment, and in an action of that character they must recover, if at all, upon the strength of their own title rather than upon the weakness of their opponents’, and the burden is upon them to establish the title they assert. 10 Am. & Eng. Ency. of Law (2d Ed.) 481. They assert title to this claim, basing it upon a forfeiture by defendants, and before they can recover they must establish the alleged forfeiture by “clear and convincing proof of the failure of the locators or owners of the claim to have the work done or improvements made [98] to the amount required by law.” Book v. Justice Min. Co. (C. C.) 58 Fed. 118; Hammer v. Garfield Milling Co., 130 U. S. 301, 9 Sup. Ct. 548, 32 L. Ed. 964. The statute of the United States provides: “On each claim located after the 10th of May, 1872, and until a patent has been issued therefor, not less than one hundred dollars worth of labor shall be performed or improvements made during each year.” Rev. St. U. S. § 2324 (U. S. Comp. St. 1901, p. 1426). The courts of this country, in interpreting this provision of the law, have wisely construed it to mean that work done outside of a claim, or group of claims, if done for the purpose and as a means of prospecting or developing the claim, as in the case of tunnels, drifts, etc., is as available for holding the claim as if within the boundaries of it. 2 Lindley, § 631; Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875; Book v. Justice Min. Co. (C. C.) 58 Fed. 117. In other words, the miner is to be given the benefit of his expenditures or labors so long as they are made in good faith and for the promotion of the extraction of mineral and the development of the claim. 10 Am. & Eng. Ency. of Law, 735 et seq. In this case it is not denied that these defendants performed or employed others to perform certain work- upon this claim. The position taken by plaintiffs is that the work accomplished was not reasonably worth the $100 required by section 2324. Mr. Lindley, in his valuable work on Mines, quotes from the decision of the Supreme Court of Colorado, in Quimby v. Boyd, 8 Colo. 194, 6 Pac. 462, the following: “But the actual value is the true test, whether or not the law has been complied with, yet where the testimony is conflicting as to the value, it is proper to consider whether there has been a bona fide attempt to comply with the law.” There is a conflict in the evidence as to the value of the labor performed, but the testimony of defendants’ witnesses is not such as to clearly and unquestionably establish their [99] assertion that the work in the year 1895 was not of the value of $100. Nor have the plaintiffs refuted the good faith of defendants in their expenditures upon the property. The plea of forfeiture in itself is an admission of a prior valid location. It is in confession and avoidance. Power v. Sla, 24 Mont. 243, 61 Pac. 471. Therefore plaintiffs may not question defendants’ location, for their rights under their pleadings rest upon that fact. Since, then, these defendants were in possession' of the premises in controversy under a valid location, and, since they have failed to meet the requirements of the law — i. e., to establish a forfeiture of the claim by defendants’ failure to perform the necessary assessment work — and since, where a valid location has once been made, no right or claim to the property can be acquired by an adverse party thereon for the purpose of relocation until the original location has been terminated by abandonment or forfeiture, the action cannot be sustained. Belk v. Meagher, 104 U. S. 279, 26 L. Ed. 735. There being no forfeiture, plaintiffs’ grantor could not make a valid location, and hence plaintiffs’ action fails. Defendants also plead the statute of limitations (chapter 2, tit. 2, Code Civ. Proc. Alaska) in bar of the action. The consideration of the merits having been determinative of the cause, an examination of the question as to the statute of limitations is at this time unnecessary. Eet an order be entered in conformity herewith.