Russell v. Hoyt

Wade, 0. J. Plaintiff claiming by virtue of his location of the J. H. Bussell lode situate in the Ten Mile Mining District, Lewis and Olark county, and having filed his protest and adverse claim to the application of the defendants for a patent to the Mammoth location, brings this action to have determined the right of possession to the ground in dispute. The plaintiff’s location was made in July, 1867, under the law of 1864, and answers all the requirements of the law. There was no issue in the pleadings as to a discovery upon this location, and all testimony upon that subject was properly excluded from the jury. The defendants base their right to the Mammoth lode upon a notice of location recorded on the 29th day of May, 1873. To this notice there is an affidavit attached stating that the locators are citizens of the United States and of the territory, but the matters and things contained in the notice or declaratory statement are not sworn to. On the trial the plaintiff objected to the introduction of this notice and declaratory statement in evidence, which objection was sustained, and upon this action of the court the defendants assign error. On the 8th day of May, 1873, twenty days before the Mammoth location was made and recorded, the following act of the legislature was approved and became a law: [420] “Any person or persons who shall hereafter discover any mining claim upon any vein or lode bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposit, 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;” which act took effect and was in force from and after its passage. The following act was in force at the date of the passage and approval of the foregoing: “All acts and joint resolutions which declare that they take effect from and after their passage and approval by the governor are hereby declared to take effect only at the seat of government; and in other portions of the territory, allowing fifteen miles from the seat of government for each day.” The act of May 8, 1873, was enacted and became a law at a session of the legislative assembly at Virginia City, then the seat of government of the territory, and appellants contend that the court ought to have taken judicial notice of the place where the Mammoth lode was located and its distance from the seat of the territorial government, and that by such notice, and without proof, to have determined and declared that the Mammoth location was so far distant from the capital of the territory as that the act of May 8th was not in force as to it, at the time the same was made and recorded, on the 29th of May, 1873. Courts will take judicial notice of what is generally known within the limits of their jurisdiction: of the divisions of a state or territory into towns and counties; of the leading geographical features of the land; of the position of important cities and towns, and of the government surveys of the public lands; but we are not' aware of any principle or authority that would authorize or require a court to take judicial notice of the place where mere private property is situated, or its distance [421] from the seat of government of the political division within which it is situated. Only matters of public importance and notoriety are within the scope of what courts will take judicial notice of. Matters of mere private concern, as the location or situation of a farm or a mining claim, or their distance from the seat of government, are not within the operation of the’principle. The act of May 8, 1873, was by its terms in force from and after its passage. If the defendants were within the exception they ought to have made that fact appear by proof. The objection to the introduction of the declaratory statement of the location of the Mammoth claim was properly sustained. The defendants basing their rights upon this declaratory statement, they had no standing in court without it. Possession without a valid location could not affect the rights of plaintiff. The right of possession comes only from a valid location. A location is not valid without a declaratory statement on oath. Without such a location the defendants could not question the plaintiff’s rights on the premises. The objection that there was no replication to the answer cannot be raised for the first time in this court. If a replication had been necessary the question ought to have been raised in the court below, where the same might have been supplied. The judgment is affirmed, with costs. ' Judgment affirmed.