McKinstry v. Clark & Cameron

Conger, J. This is an action of ejectment brought to recover the possession of a certain mining claim, described as the Themis lode claim, the same being a quartz mining claim fifteen hundred feet in length by six hundred feet in width along said lode, situate in Summit Valley Mining District, Deer Lodge county, Montana territory, and also for damages in the sum of $100 and costs. Plaintiff avers that on the 2d day of March, 1880, he was the owner of and entitled to the possession of said lode, and that afterwards, to wit, on or about the 3d day of March, 1880, and while plaintiff was so seized and possessed and entitled to the possession, the defendants entered upon the same and did oust the plaintiff from possession, and maintain and hold the same. He therefore asks judgment for possession and his damages and costs in the case. Defendants, in answer, deny the allegations in plaintiff’s complaint, and for further answer allege: that since the 27th day of April, 1875, they and their predecessors in interest are and have been the owners of and in the possession of all the premises described and claimed by — 391 — the plaintiff, said premises being claimed and possessed as the Sankie lode claim. In reply plaintiff denies that defendants, or either of them, are now or have been the owners of said premises under the name of the Sankie lode claim since April 27, 1875, or otherwise, and deny that they are or have been entitled to the possession of the premises. Upon the trial of the cause, the jury found in their verdict for the defendants, upon which verdict the court ordered judgment for the defendants with costs. From which judgment of the court below plaintiff appeals to this court and assigns the following errors of law: First. The court erred in admitting certified copy of the declaratory statement of location of Sankie lode, as is specified in plaintiff’s hill of exceptions No. 1. Second. Admitting certified copy of deed from Ford to Cameron as specified in bill No. 2. Third. Error in giving instructions as specified in plaintiff’s bill No. 3. As to the first error assigned, viz., admitting in evidence a certified copy of declaratory statement of location of Sankie lode, without proof of the loss of the original, section 873, chapter 45, article 1, provides that any person hereafter discovering any mining claim, etc., shall within twenty days thereafter make and file for record in the office of the recorder of the county in which said discovery is made a declaratory statement thereof in writing, on oath, before some person authorized by law to administer oaths, describing such claim in the manner provided by the laws of the United States. The law requires the discoverer to make and file, in the office of the recorder, his declaratory statement to be by him recorded; and section 384, article 4, fifth division of ■the general laws, is as follows, to wit: “Copies of all papers filed in the office of the recorder of deeds, and transcripts from the books of record kept therein, certi — 392 — fied by him under the seal of his office, shall be primafacie evidence in all cases: ” And section 609, Civil Code: “There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases. Paragraph 4. When the original has been recorded and a certified copy is made evidence by this code or other-statute.” And in further explanation, the second clause-of the fifth subdivision provides that, in the cases mentioned in subdivisions 3 and 4, a copy of the original or a certified copy must be produced. Taking all these statutes together, the correct conclusion is, that either the one or the other is competent evidence to offer. And it was not error in the court below to admit the certified copy of location notice in evidence without first accounting for the absence of the original. The foregoing is also conclusive as to the second specification of error. The third assignment of error specified and relied on by the plaintiff is contained in bill of exceptions marked No. 3, and are exceptions to the following instructions offered by the defendants and given by the court, and numbered 1, 2 and 3. Upon examination of the transcript it appears that nine instructions were given by the court and indorsed as defendants’ instructions, but they are not numbered, except that as to the second there is a figure 2, and at the beginning of the third there is a figure 3. No numbering appears on the others. There then appears in the transcript ten other instructions, marked given, and indorsed as plaintiff’s instructions, but they are not numbered. The law requires in the sixth subdivision of section 253, Code of Civil Procedure, that: “When the argument of the case is concluded, the court shall give such instructions to the jury as may be necessary, which in — 393 — structions shall be in writing and be numbered and signed by the judge.” But this deficiency is not assigned as error and seems to have been no injury to the appellant, who has recited in his bill of exceptions the particular instructions to which he at the time. excepted. It is not, therefore, within the province of this court to consider in this cause this irregularity of the transcript. The court instructed the jury: “The defendants in this cause have denied all the material allegations in plaintiff’s complaint, and this puts upon him, the plaintiff, the burden of proving every material allegation in his complaint, before he can recover; and if the jury do not find from the evidence in the cause, and by a preponderance thereof, that the plaintiff made a discovery of a vein of quartz, and staked it and recorded it as required by law, then you should find your verdict for the defendants.” To which plaintiff excepted. “2. If you find that Ford located this ground in the manner required by law in 1875, and that it has been represented ever since, you must find for the defendants.” To which plaintiff excepted. “3. The jury must find that the ground plaintiff located was subject to location at the time he entered upon and located the same, or the verdict must be for the defendants.” To which plaintiff excepted. “If you, find that Ford discovered a ledge on the ground in controversy and made two distinct locations, you are instructed that he had a right to make one location, and that the first location, if regularly and lawfully made, was good and valid, notwithstanding he may, immediately after making the first, have attempted to make-file second. If, therefore, you find that one valid location was made, and that he and his successors, through whom defendants claim, have represented the same ever since, by doing the requisite amount of work thereon, such claim was not subject to relocation by plaintiffs, — 394 — provided you find that the ground in question was within that one of the two located which was validly located and represented by the defendants, and which was the one of the two they were entitled to hold.” To the giving of each one of the two foregoing instructions plaintiff excepted. “If plaintiff recovers it must be on the strength of his own title; and if one of the Sankie claims was not subject to relocation at the time plaintiff’s location was made, the burden of proof was on the plaintiff to show which of the two Sankie locations was invalid, and what part of said ground was subject to relocation, if defendants were in possession of the said Sankie claims.” To the giving of which plaintiff excepted. From an examination of the foregoing instructions and the evidence contained in the transcript, it is apparent that the trial proceeded and. the court instructed the jury upon the basis that defendants had located two claims, called Sankie East and Sankie West, from the same discovery. And the court instructed the jury, that: “ Although two locations cannot be made from one single discovery, yet if Anson Ford discovered the vein in two distinct places, he had a right to make a location for each of ,puch discoveries.” It will be seen .that by one of the instructions the jury were told that, if plaintiff recovers, it must be on the strength of his own title. So far, this is the law. But when they were told that if one of the Sankie claims was not subject to relocation at the time plaintiff’s location was made, the burden of proof is on the plaintiff to show which of the two Sankie locations was invalid, and what part of said ground was subject to relocation, it is evident a burden was laid on the plaintiff, which, by no construction of law or reasoning of logic, he was called on to bear. But it is contended that this error is cured by the rest of the instruction, viz.: “If defendants were in posses — 395 — sion of said Sankie claims,” and the following instruction, defining possession, which is as follows: “By possession of a mining claim, actual personal presence on the ground is not meant. But if a party has discovered a ledge with a well defined wall rock within the limits of such claim, has posted and recorded his notice •as required by law, marked its boundaries by placing sufficient stakes at the corners of his claim, so that such claim can be readily identified thereby, and then performed the amount of work thereon required by law to’ hold the same, these acts constitute possession of the claim.” This instruction is correct as to possession, but it goes far beyond that; and if defendants had performed the requirements of the instruction, they were not only in possession, but had the right to possession. But the mere stating of a correct legal proposition to a jury does by no means shift the burden of proving the facts necessary to form the basis of the instruction given. Counsel for respondents (defendants heretofore) contends: “That this is an action of ejectment, and the plaintiff must recover, if at all, upon the strength of his own title, and he (plaintiff) admits in his pleadings, and affirmatively alleges, that defendants were in actual possession of the ground at the date of the commencement ■of this action.” The supreme court of the United States, in the case of Belk v. Meagher et al., say: “ The right to the possession •comes only from a valid location; consequently, if there is no location, there can be no possession under it. Location does not necessarily follow from possession, but possession from location.” Again, counsel argue that plaintiff first proved his location. The defendants then proved a prior location by their grantor, Dr. Ford. Then it would devolve upon' plaintiff, in rebuttal, to show that Ford’s location was — 396 — void by reason of making two from the same discovery hole, and to show which one was first. This reasoning is in accord with the instructions above, and they were undoubtedly given on the same view of the law. When the plaintiff has proved his location, and the defendants have proved a prior valid location, that is doubtless sufficient to defeat plaintiff’s right; but that is not the case. Defendants claim two locations, one of which, it is assumed, may be invalid, and the jury were told the burden of proof was on the plaintiff to show which of the two was invalid, or, as counsel for respondents says in his brief, “to show which was first.” A simple analysis and statement is sufficient to show the error of law. These instructions would mislead the jury; for when they were told the burden of proving which of the two Sankie claims was invalid, if defendants were in possession as before stated, they would naturally be led to the conclusion that the defendants had performed their entire duty, if the plaintiff did not, by a preponderance of the evidence, prove to the contrary. It is said these instructions cannot be reversed on. account of there being no testimony to support them; that all the testimony in the case applicable to the instructions is not stated. Section 282 of the Civil Code is as follows: “The objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more.”’ This has been done in this case. It is true, as alleged by counsel, that the instructions must all be taken in connection, one with another. They are not the plaintiff’s instructions in part, and the defendants’ instructions in part, but they are, as a whole, the instructions of the court to the jury. They should so be delivered by the court, and be so received by the jury, ' and by this court be so examined and passed upon. This has been done, and a careful examination of them — 397 — as a whole does not in our opinion relieve them from the •objection that they were not in accord with law, and tend to mislead the jury. It is said by counsel, “that the objections and assignments of error as to the instructions seem to be general, and an appellate court will not consider the same, for the reason that counsel for appellant did not cite or call the •attention of the court below to any particular error in either of said instructions;” and cites as authority therefor, Griswold v. Boley, 1 Mont. 549, and McKinney v. Powers, 2 Mont. 466. In Griswold v. Boley the court says: “One other ■specification is as follows: The court erred in instructing the jury for the plaintiff, as they were instructed by the •court at the time.” This specification is of the like character to the one already considei'ed, and for like reasons cannot claim the attention of the court; and for another reason, the instructions given on behalf of the plaintiff were not excepted to at the time, and for all that appears went to the jury without objection. We can take no notice of exceptions not taken at the ■proper time and duly saved; and if this exception had been taken at the time the instructions were given, and this fact had duly appeared in the record, the exception is of such as general character that it does not meet the requirements of the code, which provides that the statement shall specify the particular errors upon which the party will rely. Exceptions to the charge to the jury ought to point out the specific portions excepted to, and to be made at the time of the trial, in order that the judge may have an opportunity, before the jury retires, to correct any •error he may have fallen into in the hurry and perplexities of the trial. Hicks v. Coleman, 25 Cal. 146. And no exceptions to the instructions to the jury ought to be regarded unless the same are made and presented to -the court before the same are finally submitted to the jury. — 398 — In McKinney v. Powers, 2 Mont. 466, the same doctrine is maintained, and the case of Griswold v. Boley affirmed. The court says: “The alleged errors complained of in this action arise upon the instructions of the court to the jury. The record shows that no exceptions were taken to the instructions as given. We have repeatedly held that this court will not consider the correctness or incorrectness of instructions to the jury, unless exceptions were properly taken and saved in the proper time. See Griswold v. Boley. Objections to instructions should be specifically pointed out before the case is finally submitted to the jury. The court below should have an opportunity to correct any alleged errors in the instructions, and this can only be done when such alleged errors are designated before the case goes to the jury. Obviously, this opportunity was not presented to the court in this case. The instructions went to the jury without objection, and it is now too late to assign errors upon such instructions, no exceptions having been taken at the proper time.” Section 2Y9, Code of Civil Procedure, provides: “ An exception is an objection taken at the trial to a decision upon a matter of law.” And section 281 provides further: “The point of the exception shall be particularly stated, except as provided in relation to instructions.” Subdivision 5 of section 523 of Civil Code provides: “When the evidence is concluded, and either party desires special instructions to be given to the jury, such instructions shall be reduced to writing and signed by the party, or his attorney, asking the same, and delivered to the court.” Sixth. “When the argument of the cause is concluded the court shall give such instructions to the jury as may be necessary, which instructions shall be in writing, and be numbered and signed by the judge.” Seventh. “ When either party asks special instructions to be given to the jury, the court shall either give such instruction as requested, or positively refuse to do so, — 399 — or give the instruction with a modification, and shall mark or indorse upon each instruction so offered, in such manner that it shall distinctly appear what' instructions were given in whole or in' part, and in like manner those refused, so that either party may except to the instructions as given, or refused, or modified, or to the modification. “If any party to the trial desires to except to any instruction given by the court, or to the refusal of the court to give any instruction asked for, or any modification thereof, he shall reduce such exception to writing, and file the same with the clerk before the cause is submitted to the jury.” The law requires the judge to indicate, by numbering and marking, the instructions offered to him, so that it shall distinctly appear what he gives, refuses and modifies. It also requires the parties to a suit desiring to except to this action of the court to specify the same in writing as to each instruction, and the objection to the same, so that the court may know whether the objection exists to the modification, or the giving, or the refusal of the court to give, the instruction. A general objection to each and all of the instructions, that they are not law, or are misleading to the jury, is not enough. This is the doctrine of the cases cited and is affirmed in this cause. The objections to the instructions in this case were taken severally and were sufficient. For the errors above stated this cause is reversed and remanded for a new trial. Judgment reversed.