Sturtevant v. Vogel

GILBERT, Circuit Judge (after stating the facts as above). The plaintiff in error contends that, both by the laws of Alaska and the custom of the miners, the recording of the location notice within 90 days after location is essential to the life of the location, and that a failure to so record the same results in the forfeiture thereof. But one witness was called to prove the alleged custom of the miners, and his testimony falls short of showing the existence of any custom or regulation adopted by the miners, in the district where the claim is located, making the recording of the notice of location essential to the right to hold the same. The court in charging the jury said that such a custom can only be binding when established by clear and satisfactory evidence, and that no custom which may require the recording of a location certificate is good and valid in law unless it carries with it a provision that for noncompliance therewith the location shall be forfeited and void. The court further instructed the jury that the mining laws of the United States in force in Alaska, while they allow a location notice to be recorded, do not require such record as an essential to a valid location. Section 2324, Rev.St. (30 U.S.C.A. § 28 and note), provides that all records of mining claims shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located, by reference to, some natural object or permanent monument, as will identify the claim. This provision does not require that the location be recorded. It leaves the subject open to legislation by the states or to regulation by the miners. Haws v. Victoria Copper Mining Co., 160 U.S. 303, 16 S.Ct. 282, 40 L.Ed. 436; 1 Lindley on Mines (2d Ed.) 373, and cases there cited. It is contended that section 15, c. 786, Act June 6, 1900, 31 Stat. 327, requires that notice of the location of a mining claim shall be filed for record within 90 days of the discovery of the claim. The section requires recorders, upon the payment of fees, to record separately certain classes of instruments, such as deeds, mortgages, certificates of marriage, wills, official bonds, etc., including affidavits of annual work done on mining claims, notice of mining locations and declaratory statements; and in subdivision 11 it adds to the list such other writings as are required or permitted by law to [253] be recorded, including the liens of mechanics, laborers, and others: “Provided, notices of location of mining claims shall be filed for record within ninety days from the date of the discovery of the claim described in the notice.” This statute permits the recording of instruments. It contains no positive enactment that any of the enumerated instruments shall be recorded, nor does it provide that the failure to record any instrument shall work a forfeiture of rights thereunder. Obviously by the terms of this statute an unrecorded deed is not rendered invalid as between the parties, nor does the mere failure to record a mining location work a forfeiture thereof. We are therefore not called upon to decide the question, discussed by counsel, whether a statutory requirement that the location notice be recorded is mandatory or merely directory. In the decisions of Montana relied upon by the plaintiff in error, we do not find support for his contention that, under the law of Alaska, failure to record location notice should be held to work a forfeiture of a mining claim. In King v. Edwards, 1 Mont. 235, the question for decision was whether the failure to perform the prescribed amount of work upon a claim resulted in forfeiture. The court found that it was generally considered, among the miners of the district in which the claim was situated, that such a failure would have that effect, and said that: “Where a custom is plain, there is no room for construction, and the court must take it as it reads and give it its legal effect.” In Baker v. Butte City Water Co., 28 Mont. 222, 72 P. 617, 104 Am.St.Rep. 683, the question was whether the trial court had erred in excluding from the evidence the location notice of the defendant’s claim. The Supreme Court affirmed the right of the Legislature to provide rules for the marking of the boundaries of mining claims, and for the record thereof, and to specify what the recorded paper must contain, and held that, since the notice failed to comply with the statute, it was not admissible in evidence. The decision in that case was affirmed in Butte City Water Co. v. Baker, 196 U.S. 119, 25 S.Ct. 211, 49 L.Ed. 409, in which the court answered the contention of the plaintiff in error, that the provisions of the Montana statute were too stringent and conflicted with the liberal purpose manifested by Congress in its legislation respecting mining claims, by say [254] ing: “We do not think that they are open to this objection. They certainly do not conflict with the letter of an}' congressional statute; on the contrary, are rather suggested by section 2324. It may well be that the state Legislature, in its desire to guard against false testimony in respect to a location, deemed it important that full particulars in respect to the discovery shaft and the corner posts should be at the very beginning placed of record.” The trial court, in instructing the jury, relied upon a line of decisions of the Supreme Court of California and of the federal courts in this circuit. In McGarrity v. Byington, 12 Cal. 426, the court said: “The failure to comply with any one of the mining rules and regulations of the camp is not a forfeiture of title. It would be enough to hold the forfeiture as the result of noncompliance with such of them as make noncompliance a cause of forfeiture.” That decision was cited and followed by Judge Sawyer in Jupiter Min. Co. v. Bodie Con. Min. Co. (C.C.) 11 F. 666. In English v. Johnson, 17 Cal. 108, 76 Am.Dec. 574, the court said: “But in the absence of any rule declaring that a failure to record avoided the entry or claim, we cannot see that this failure, when actual possession was taken by the claimant and kept — no forfeiture or abandonment shown — rwould avoid the claim as against a subsequent entry and location in due form.” In Bell v. Bed Rock Co., 36 Cal. 219, the court said: “The failure of a party to comply with a mining rule or regulation cannot work a forfeiture unless the rule itself so provides.” In County of Kern v. Lee, 129 Cal. 369, 61 P. 1124, the court adhered to the doctrine of the prior decisions that, in the absence of a state or district requirement, the failure to record notice of location does not affect the validity of the location; and in the case of Daggett v. Yreka Min. Co., 149 Cal. 360, 86 P. 968, it was again held that, in the absence of a statute or local miners’ law requiring the recording of a notice, the recording does not constitute in itself a location of any part of a legal location of the claim. In Last Chance Min. Co. v. Bunker Hill & S. Min. Co., 131 F. 579, 66 C.C.A. 299, this court held that the failure of the locator of the Bunker Hill claim to record his notice of location within the time prescribed by the Idaho statute [255] did not work a forfeiture of the claim, there being no such penalty affixed by the statute; citing Jupiter Min. Co. v. Bodie Con. Min. Co. (C.C.) 11 F. 666, Bell v. Bed Rock T. & M. Co., 36 Cal. 214, and other cases from California and Arizona. In Zerres v. Vanina (C.C.) 134 F. 610, Judge Hawley construed Comp. Laws Nev. § 210, providing for the location of a lode mining claim, and declaring that within 90 days of the date of posting the location notices on the claim the locator shall record his claim within the mining district, etc., and held that, since the statute did not provide for a forfeiture for a failure to record within the time specified, the failure was insufficient to work a forfeiture of the locator’s right. And in Ford v. Campbell, 92 P. 206, the Supreme Court of Nevada said that the intention that failure to comply with the statute should work a forfeiture of mining rights “ought not to be imputed to the Legislature except upon the very clearest language, not susceptible to any other reasonable construction,” and quoted with approval the language of Judge Hawley in Zerres v. Vanina. Of similar import are Johnson et al. v. McLaughlin, 1 Ariz. 493, 4 P. 130, and Rush v. French, 1 Ariz. 99, 25 P. 816. Error is assigned to the instruction given to the jury that, if there is a variance or discrepancy between the stakes and monuments on the ground and the recorded location certificate, the former will prevail over the latter, as superior evidence of the particular ground located and its boundaries. It is contended that this instruction was erroneous, not because the proposition of law therein expressed is in itself unsound, but because the evidence in the case indicated that, at the time when the location of the plaintiff in error was made, the stakes marking the boundaries of the Lillian location had disappeared. But the record shows that the evidence on this feature of the case was conflicting. The defendant in error Vogel testified that on November 20, 1904, he found the stakes all in place. The court had instructed the jury that, when a valid location is once made, it vests in the locator the right of possession thereto, which cannot be divested by the obliteration or removal, without his fault, of the stakes and monuments marking its boundaries, or the obliteration or removal from the claim of the location notice posted thereon, and that marking the claim [256] on the ground by stakes and monuments, with or without written notice, whereby the boundaries of the claim can be readily traced, is sufficient, and submitted to the jury the question whether the location had been so staked and marked. No exception was taken to those instructions. There is no evidence in the case to indicate, and it is not claimed by the plaintiff in . error, that he was misled by the defect in the recorded notice of location, or that he ever saw or heard of the location notice. Indeed, he testified that he never saw it. In view of that fact, the case as it went to the jury stood precisely as it would have stood if no notice whatever of the location, had been recorded. The plaintiff in error is therefore in no position to object to the instruction, the giving of which he now assigns as error. Error is assigned to the refusal of the court to instruct in substance that, if the calls and distances given in the location notice posted on the ground do not correspond with .those actually marked on the ground, the notice .is misleading, and that fact must be taken into consideration in determining the markings as a whole, and that a person examining the ground and finding a posted location notice has the right to rely on the description of the ground so claimed by the locator or owner. The defect in the location notice was that the permanent monument to which it tied the claim was erroneously located. Any one finding the location notice posted on one of the stakes which marked the boundaries of the claim could observe that error at a glance. It would then devolve upon him to trace out the claim by reference to the calls and distances set forth in the notice, and to discover where it lay, and to disregard the obvious error in the reference to a permanent monument. The location notice was not by law or custom required to be posted on the claim or recorded. Stakes driven in the ground are the most certain means of identification. The location notice which, it was testified, was posted on the Lillian, described the claim by calls and distances to stakes, running from the stake on which it was posted. ■ No one could have been misled by - the erroneous call to the telephone pole. We find no error for which the judgment should be reversed. It is accordingly affirmed.