Debney v. Iles

GUNNISON, District Judge. At the conclusion of the trial, defendant moved to strike all the testimony of the plaintiffs introduced after the case had been reopened, and renewed their motion for nonsuit. Defendant contends that under the Alaska Code an order of nonsuit dismisses the suit without prejudice, and that when the order of nonsuit is once granted the court cannot reopen the case; the plaintiffs having recourse only to their right to commence a new suit. This contention they base upon sections 377 and 378, pt. 4, p. 227,. Alaska Codes, where it is provided: “A judgment dismissing an action may be given against the plaintiff in any of the cases specified in subdivision 1, 2 and 3, of section 237, except the last clause of subdivision 3. Such judgment is a determination of the action, but shall not have the effect to bar another action for the same cause or any part thereof.’' Section 378, on the same page, provides: “Whenever upon the trial it is determined that the plaintiff is. not entitled to the relief claimed, or any part thereof, a judgment shall have the effect to bar another action for the same cause, or any part thereof, unless such determination shall be on account of the failure of proof on the part of the plaintiff, in which case the-court may, on the motion of «uch plaintiff, give such judgment, with-, out prejudice to another action by the plaintiff for the same cause, or any part thereof.” The nonsuit in the cáse at bar was granted upon the failure of proof, and under section 378 just quoted. It is, I think, a rule of law too well established to require the citation of authorities that the court has control over its judgments and decrees during the term at which they are made and en — 447 — tered. Not only is that general rule applicable here, but Congress in enacting the Alaska Code of Civil Procedure, provided in section 93, p. 163: “The court may likewise in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from the judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” The words “may likewise,” in the section just quoted, refer to the language of section 92, “The court may * * * in furtherance of justice” act as therein provided. Aside from the general rule already stated, the authority given in section 93 is, in my opinion, sufficient to warrant the court in reopening the case and allowing the plaintiffs to introduce such evidence as they might have on the question of their discovery, rather than to compel them to resort to a new suit and to the added expense incident thereto. In the case of Jackson v. Waldron (C. C.) 5 Fed. 245, it was held that: “If no injury results to the defendant, the court will set aside the nonsuit, when it appears that the suit is meritorious, and the plaintiff has been surprised by some defect which he did not discover in time to remedy.” I am of the opinion, not only that no injury did result to the defendant by the reopening of the case, but that the order was, in the language of the statute, “in furtherance of justice.” Both motions should be denied. Plaintiffs contend that the defendant had abandoned the King Solomon No. 1 claim. Section 2324, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1426), declares that: “Upon a failure to comply with these conditions [that is, as to discovery, staking, etc.], the claim or1 mine upon which such failure occurs shall be open for relocation, in the same manner as if no location of the same had ever been made.” Courts are reluctant to enforce this penalty and have established the doctrine that forfeiture cannot be established, — 448 — except upon clear and convincing proof of the failure of the former owner to have work performed or improvements made to the amount required by law. Nor do they incline to the enforcement of this class of penalties, which are deemed to be odious in law. Book v. Justice, etc. (C. C.) 58 Fed. 106; Hammer v. Garfield, etc., 103 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964; 2 Lindley, § 645. It will thus appear that the burden of proving a forfeiture or abandonment is upon him who charges .it. Plaintiffs assert that no work was done in the year 1902. Their own rights, however, if any rights they had, were not established until the year 1904, and I think the true rule to be that, even though the original locator failed to perform the assessment work for a certain year, and yet in the ensuing year does perform the work required for that year, before the rights of another intervene, his right is deemed to have been revived. Belk v. Meagher, 104 U. S. 283, 26 L. Ed. 735. The defendant’s right, therefore, is dependent upon the work which he claims to have done upon the claim in the year 1903. I am of the opinion, from a careful examination of the evidence, that the man Hayes was not upon the claim after the 8th of April, 1903, and, though the defendant paid him for the work which he claims to have been clone, such payment cannot be counted, inasmuch as the payment did not go for the development of the claim. The test as to what will satisfy the statutory requirement of annual labor, which is usually applied, is as to whether it is such as will in fact amount to an improvement of the claim, sitch as is calculated'to develop it and facilitate the extraction of the valuable contents of the claim. 1 Snyder on Mines, p. 458. Despite the disinclination of the courts to impose the penalty of forfeiture, the person claiming the benefit of assessment work is required to establish that which he asserts. The burden of proving the work to be beneficial is upon him. And, though the defendant paid Hayes the amount to which he — 449 — testified, he has in my opinion failed to establish that any work beneficial to the claim has been performed. The preponderance of the testimony seems to be that Hayes was in the interior of the country, and not where he is claimed to have been. There is no authority under the law for the proving of assessment work by labor affidavits, and I am of the opinion that such affidavits are not only unsatisfactory but exceedingly dangerous. It is, I think, clear from the testimony that the defendant failed to perform the requisite amount of labor on the claim in the year 1903, and that, on the 1st of January, 1904, the land became open, unoccupied public land, subject to relocation by any one who might comply with the provisions of the law on that subject. This being so, it becomes necessary to examine plaintiffs’ locations. It is, I think, equally clear that in March, 1904, Debney did not go upon the ground in question, and consequently no rights were established by him at that time. • However, it is not contended that the defendant’s rights were revived between the 19th of March and the 19th of May, when Debney again went upon the claim. The plaintiffs’ rights depend upon the sufficiency of the acts of Debney on his visit in May. It would seem that, where a locator seeks to establish a relocation upon a claim which he asserts to have been abandoned, he should be held to a strict compliance with the requirements of the statute. It appears from the evidence that he first staked his claims, then put up his notices of location, and thereafter made his discoveries. Upon the trial the plaintiffs relied upon the discovery claimed by Debney in 1901; but this discovery I am satisfied is too remote. Mr. Snyder in his work on Mines (volume 1, p. 314), lays down the proposition that: “It is not necessary that a discovery be made before staking, if there are no intervening rights, although it has been held that no rights can be acquired until actual discovery.” Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113. — 450 — The order in which these acts of location took place is not essential, if no rights intervened. 1 Lindlejq 396; Perigo v. Erwin (C. C.) 85 Fed. 904; same case, 93 Fed. 608, 35 C. C. A. 482; Cosmos v. The Grey Eagle, 112 Fed. 4, 50 C. C. A. 79. It was held in the case of Doe v. Waterloo, 70 Fed. 455, 17 C. C. A. 190, that the law is satisfied if the discovery is made within a reasonable time after taking possession for the purpose of inaugurating a claim. It is, of course, true that in relocating ground claimed to have been abandoned the relocator should be required to conform to the provisions of the statute in all strictness, and that the court should indulge in no presumptions in favor of the relocator. Let us, therefore, examine the evidence of the plaintiffs as to their discovery. The defendant contended that the plaintiffs located upon the apex, made their discovery there, and, therefore, are attempting a fraud upon the government by locating two claims upon one discovery. It was said in Book v. Justice Mining Co. (C. C.) 58 Fed. 106, that: “Where a locator finds rock in place containing mineral, he has made a discovery within the meaning of the statute, whether the earth or rock is rich or poor, whether it assays high or low. It is the finding of mineral in the rock in place, as distinguished from float rock, that constitutes a discovery and warrants the prospector in making the location of a mining claim.” This discovery of mitieral, it has been held, must be treated as an entirety, and as the proper basis for but one location. 1 Lindley, 613; Reynolds v. Pascoe, 24 Utah, 219, 66 Pac. 1064. Thus it will appear that the discovery must be actual, rather than theoretical. But the plaintiffs contend that in making this location a discovery was made in each claim; in other words, that the apex of the vein lay in each claim; while the defendant’s contention is that the contiguous end lines of the claim bisect the apex, and that plaintiffs improperly attempt to take advantage of a discovery on this apex. The theory upon — 451 — which their objection is based is doubtless predicated upon the idea that the apex of the vein is the highest point of the vein. That idea is not, I believe, supported b.y the weight of authority. The definition of the apex of the vein, which is strongly supported by both reason and precedent, is that the apex is the top edge or surface of the vein along its strike, whether this be the outcrop or be blind. If this be the proper definition of the apex of a vein, and I am prone to believe that it is, then any number of claims may be located along the apex upon its strike, and the fact that plaintiffs have bisected the outcrop of the apex by the contiguous or identical end lines of these two claims does not invalidate their location, if they, have made independent discoveries in each claim. Mr. Lindley (volume 1, p. 346) contends for the definition of the apex as stated above, and cites numerous authorities upon the subject. The Supreme Court of the United States, in the case of Larkin v. Upton, 144 U. S. 19-23, 12 Sup. Ct. 614, 36 L. Ed. 330, also supports this definition; the Court saying, in affirming the decision in the lower court, that: “The apex of a vein is not necessarily a point, but often a line of great length. Any portion of the apex on the course or strike of the vein fou’nd within the limits of the claim is sufficient discovery to entitle the locator to obtain title. The vein beyond the end lines is subject to further discovery and appropriation. * * * Hence the apex in its full width, with some portions of its length, might be found in each claim, and, so discovered, justify the discoverer in obtaining title to each.” This theory is also adopted in the case of Hayes v. Lavagnino, 17 Utah, 185, 53 Pac. 1029. The testimony of the plaintiffs is to the effect, and stands uncontradicted, that Debney discovered rock in place along the apex of the vein where it outcropped within the boundaries of each claim. The discovery was not made in a discovery shaft which was bisected by the identical end lines, as was the case in Poplar Creek Consolidated Mining Co., 16 Land Dec. 1, which was cited by de — 452 — fendant in support of his contention. Here the discovery is made within the.bounds of each claim. “Discovery of mineral elsewhere upon the claim, if adopted and taken as and for the discovery, will rescue the location from loss of title otherwise resulting from failure of discovery," 1 Snyder, p. 323. See Tonopah & Salt Lake Mining Co. v. Tonopah Mining Co. (C. C.) 125 Fed. 414. In my opinion, the discovery of plaintiffs was sufficient in each claim, and therefore, on May 19, 1904, and the subsequent days, plaintiffs’ grantor made a valid location of the mining claims All-American No. 1 and All-American No. 2, and they were such when the defendant lies purchased the lumber and attempted to send it to the claim. It is, I think, clear that lies cannot claim the benefit of this lumber; for he did not succeed in bringing it to the claim itself, and where work is done outside of a claim, which a claimant asserts benefits his respective claims, the burden rests upon him to establish that fact. 2 Lindley, § 631; Justice Mining Co. v. Barclay (C. C.) 82 Fed. 554. Not only did he fail to establish the fact that the lumber was a benefit to the claim, but at that time intervening rights had attached to the ground, and, had he succeeded in taking the lumber upon the very ground itself, he could not claim the benefit of it. So, too, his work in the year 1905 was without avail, as plaintiffs’ rights had already been established. It must follow that the location of the Queen of Sheba lode was void, as the ground upon which it was located was not then open. Judgment should be entered for the plaintiffs.