Russell v. Chumasero

Wade, 0. J. Plaintiff, to maintain his action, offered in evidence the record of his declaratory statement and location of the Alta lode claim, which is in the words and figures following, to wit: “Declaratory Statement. “ Alta Lode. “This lode is situated in Ten Mile Mining District, Lewis and Clarke county, Montana territory, discovered July 26, 1816, by J. H. Russell, and he hereby gives notice that he has located the above named lode under the provisions of the act of congress, May 10, 1812, and claims 1,300 feet westerly and 200 feet easterly from discovery; thence to stake A 300 feet, to stake B 200 feet, to stake 0 390 feet, to stake D 1,500 feet, to stake 600 feet, to stake A 800 feet, bounded on the north by the south lines of the Mammoth and Free Speech lodes, and on the-south by the north lines' of Eureka and Fairview lodes.”1 Which was properly verified. Defendants objected to» the introduction of this declaratory statement in evidence, which was sustained and exception saved, and this action of the court is the error complained of. The act under which that location was made requires, that the location be distinctly marked on the ground, so that its boundaries can be readily traced, and that the [317] record thereof shall contain the name of the locator*, the date of the location, and such a description of the claim located, by reference to some natural object or permanent monument, as will identify the claim. We held in the case of Hauswirth v. Butcher, at this ‘term, that such a location carried with it a grant from the government to the person making the same, and that the recoi’d must contain such a description of the claim located, by reference to some natural object or permanent monument, as will identify it. We affirm that decision. The record of location must contain a reference to such objects or monuments. But it is not for the court to say, by merely looking at a record or declaratory statement, what ai*e or what are not permanent objects or monuments; that is matter of proof. A stake or a stone of the proper size, and properly marked, may be a permanent monument. A declaratory statement or record thereof, with a reference to permanent stakes or monuments, which did not exist as a fact on the ground, would not be good, while a defective description in the record or •declaratory statement might be cured if the stakes or monuments on the ground identified the claim. . The location in question was bounded on the north by "the Mammoth claim, and on the south by the Eureka and Fairview claims. It was not for the court to say, by «imply looking at this declaratory statement, that the boundaries of these claims did not sufficiently describe -and identify the claim of plaintiff on the northern and •southern boundaries. These claims may have been held by patents from the government with corners and bound.aries so definite and certain as to leave no question concerning the location of the plaintiff’s claim. Whether this was so or not was matter of proof, and the plaintiff ought to have had an opportunity to have supported and made certain his declaratory statement by competent testimony. The judgment is reversed and cause remanded for a .new trial. Judgment reversed.