O'Donnell v. Glenn

De Witt, J. The sufficiency of the location notice of the Argonaut Claim is no longer an open question in this case. It was decided to be invalid on the former appeal. (8 Mont. 248.) That decision is now the law of this case. The other consideration is whether the common error sought to be proved and — 461 — relied upon by defendants was, in fact, a common error, and wbetber, as such, it was of a nature to make good, for the purposes of the action, the defective location- notice. The District Court held that both the existence and effect of a common error of this sort is a question for the court and not the jury. The matter is one of mixed law and fact. In the application of the maxim communis error facit jus, the inquiry is whether “the-law is made.” If the fact of the existence of a common error is to be submitted to the jury, and the jury finds its existence, then the court has no province but to complete the maxim and say, facit jus. But that is the very question for a court, that is to say, “ what is the law.” The court must say what the “ law has been made,” whether by a common error, or by a legislature. We are, therefore, of opinion that the lower court was correct in holding that both the existence and effect of the alleged common error was for the court and not for the jury. To hold otherwise would be to make the jury the judges of the law. (See McKeen v. Delancy’s Lessee, 5 Cranch, 22, and cases cited below.) We will now endeavor to determine whether the court erred in its decision, that such a common error existed as should be held to make the law that the controverted location notice was good for the purposes of the case on trial. The application of the maxim under consideration, like that of all concrete generalizations, is attended with difficulty and danger. A review of the authorities leads us to the conclusion that each case of the invocation of the rule must stand largely upon its own facts. In Coke upon Littleton, we find that the learned author often prefaces-the announcement of a legal principle with the words “it is commonly said.” By these words we understand is meant, “ it is commonly the legal opinion.” To the expression cited, Little-ton adds: “That is, it is the common opinion, and communis opinio is of good authority in law. A communi observantia non est recedendum;” which we may read, “there must not be a departure from a common or general observation or practice.” The annotator to Coke upon Littleton adds, at this point: “ Other rules immediately connected with this are, communis error facit jus, and res judicata pro veritate habetwr, and minime mutanda srnit, guce certam interpretaiionem habuerv/nt.” The two latter — 462 — may, perhaps, be well rendered, “an adjudicated matter shall be deemed to be correct,” and “those matters shall be least changed which have attained a certain interpretation.” The language of these maxims carries the idea of an observance, an interpretation, a construction, and to some extent, a judicial one at that, as evidenced by the words, observancia,, res judicata, and interpretationem. Thus we find our maxim under purview at an early day, in company with language tending to the view that the common error that makes the law is an error in the observing, the construing, the interpreting law, and not an error in totally disregarding, and in practice, repealing a positive statute; and furthermore, that the error is general, and not confined to a portion of one class of the inhabitants of one geographical or political division of the jurisdiction, as was the case with the error being considered, which was confined to thirty-three per cent of the prospectors of the county of Deer Lodge, of the Territory of Montana. In the year 1764, the Supreme Court of Pennsylvania say: “These deeds, and this mode of examination of femmes covert, on conveying their estates, have generally prevailed in this province from its first settlement, and undergone from time to time the notice of the courts of justice; it would be very mischievous now to overturn them. The maxim communis error faait jus cannot operate more properly than in this case.” (Davey v. Turner, 1 Dall. 14.) Here a general practice had received tacit judicial approval for years. The same-court, in 1768, apply the maxim to a “ constant usage,” the individual instance of which having occurred forty-one years prior • to the controversy before the court. (Lloyd v. Taylor, 1 Dall . 17.) The Supreme Court of the United States, in 1809, apply and discuss the doctrine. Says Mr. Chief Justice Marshall: “ The first question which presents itself in this case is, was this deed properly proved? Were this act of 1715 now, for the first time, to be construed, the opinion of this court would certainly be that the deed was not regularly proved. A justice of the Supreme Court would not be deemed a justice of the county, and the decision would be that the deed was not properly proved, and therefore not legally recorded. But in construing the statutes of a State on which land titles depend, infinite mischief would — 463 — ensue, should this court observe a different rule from that which has long been established in the State; and in this case the court cannot doubt that the courts of Pennsylvania consider a justice of the Supreme Court as within the description of the act. It is of some weight that this deed was acknowledged by the chief justice, who certainly must have been acquainted with the construction given to the act, and that the acknowledgment was taken before another judge of the Supreme Court. It is also recollected that the gentlemen of the bar, who supported the conveyance, spoke positively as to the universal understanding of the State on this point, and that those who controverted the usage on other points did not controvert it on this. But what is decisive with the court is, that the judge who presides in the Circuit Court for the district of Pennsylvania reports to us that this construction was universally received.” (McKeen v. Delancy’s Lessee, 5 Cranch, 22.) In this case there was a “universal understanding in the State”; and the learned Chief Justice refers to the judicial and professional construction in the State. In McFerran v. Powers, 1 Serg. & R. 101, the same question was before the Supreme Court of the State of Pennsylvania, and was decided upon the authority of the case last above cited. And here again, we find the idea of a universal and judicial or professional construction. In the Supreme Court of the United States, in 1803, in the case of Stuart v. Laird, 1 Cranch, 309, the court, Patterson, J., says: “To this objection, which is of reeent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.” This case is another instance of the universal and judicial character of the error. (See, also, Green v. Neal’s Lessee, 6 Peters, 291, which reviews many of the cases.) The Supreme Court of Massachusetts say, in Rogers v. Goodwin, 2 Mass. 477: “Of these statutes a practical construction early and generally obtained, that in the power to dispose of lands was included a power to sell and convey the common lands. — 464 — Large and valuable estates are held in various parts of the commonwealth, the titles to which depend on this construction.Were the court now to decide that this construction is not to be supported, very great mischief would follow. .... We cannot shake a principle which in practice has so long and so extensively prevailed. If the practice originated in error, yet the' error is now so common that it must have the force of law. The legal ground on which this provision is now supported is, that long and continued usage furnishes a contemporaneous construction, which must prevail over the mere technical import of the words.” We cite Mr. Justice Blackburn as follows, in Reg. v. Justices of Sussex, 2 Best & Smith, 664: “I think, also, that there are-cases in which a mistaken notion of the law has, no matter why, beeome so generally accepted, and been so acted upon, as to render it probable that business has been regulated, and the position of parties altered in consequence, and in such cases we may hold that the general acceptation of the mistake has made that law which was originally error. Communis error facit jus; but then, I think, that before we act upon this principle, we ought to see it clearly made out that the error has been commonly accepted, and that the nature of the case is such that parties are likely to have acted upon the mistake and so altered their rights and position.” Lord Brougham, chancellor, says, in Devaynes v. Noble, 2 Russ. & M. 495: “If it be true that even a prevailing error, what is called a common or a universal error, may be said to make the law, this at least may be allowed to be a sound foundation of the doctrine I am. referring to, namely, that unless a' great and manifest deviation from principle shall have been com--mitted, it may create much further mischief to reverse an individual case by way of correcting a slight error, if that error has been acted upon for a long series of years, than to leave it as it stands; more especially if the opinions of lawyers and the decisions of judges have been ruled by it, and if, upon the analogies of that case, the same principle has been recognized and adopted in other cases connected with and relating to it.” ■ The learned chancellor above calls a common error a universal error, and speaks of the opinions of lawyers and the decisions - — 465 — of judges being ruled by it. In the Matter of the Will of Warfield, 22 Cal. 71, the court says: “Courts feel themselves constrained to uphold, where it is possible, contemporaneous interpretation of statutes, under which interpretation rights of property have for many years been acquired.” In the case of Panaud v. Jones, 1 Cal. 498, the court cites with approval a Spanish authority, Escriche’s Derecho Español, as follows: “Legitimate custom acquires the force of law, not only when there is no law to the contrary, but, also, when its effect is to abrogate any former law which may be opposed to it, as well as. to explain that which is doubtful. Hence it is said, that there may be a custom without law, in opposition to law, and according to law.” Counsel for respondents has urged this opinion in his argument. We hesitate to adopt the views therein contained, however, to the extent that a common error can have the effect to abrogate a positive statute, except under most extraordinary circumstances, of which we now have no knowledge. The California decision was made in the earliest history of the jurisprudence of that State, when it had just fallen heir to much that was Spanish, and along with the rest, perhaps, some customs that were not so valuable as other portions of the inheritance. We have reviewed some of the leading cases in which the maxim under consideration has been discussed and applied, with the view of discovering what the current opinion would be as to the facts in the case at bar. (See, also, the cases cited in the foregoing authorities; and also Broom’s Legal Maxims, p. *141; Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74; Hazard v. Martin, 2 Vt. 77.) It is not possible to deduce from the authorities inflexible rules governing the practical scope of the maxim, communis error facit jus. The decisions tend, however, toward a few general principles, each of which principles has at some time been invoked in some case, but not all of them, perhaps; in the same case. In every case we find some of them applied, while in some cases some of them may be disregarded. We cannot lay down rules, any one of which would be decisive of every case. But.we state the following principles, with the suggestion that if an individual case fell within the purview of all of them, — 466 — there would be no difficulty with the maxim, and that in proportion as the facts of a case depart from the principles announced, the difficulty of application is increased. Every case depends upon its own facts. The rules as we conceive them to be, rules flexible in their nature, and subject to the qualifications above suggested, are: — • 1. The common error must be one having some judicial or professional recognition, approved or tolerated by decisions of judges or opinions of lawyers, or to put the rule less positively, such judicial or professional recognition adds to the law-mak- . ing force of the common error. We further qualify the rule, in this, that common error may possibly have the law-making power, when supported by lay opinion only, provided that other rules may be forcibly applied. 2. Courts will not lightly or inconsiderately allow a common. error to subvert a rule of law or abrogate a positive statute. 3. The error must be a universal or very general one. The nearer universal, the more forcibly will it address itself, as a law-maker, to the approval of courts. 4. The acquiescence in the common error has involved, or there depends upon it large property interests. 5. The error must be one that people have relied and acted upon, and have fixed their rights and positions thereby. 6. The longer the error has existed the greater force it has. 7. The error must be clearly proved. 8. The error must be one in the observing, construing, or interpreting law, and not an error in directly disobeying and abrogating that which is law. We have called the above&suggestions “rules”; but the word “rules” must be received with the limitations above laid down. If the facts in the case at bar met the requirements of all these rules, or if they fell fairly within them, we should affirm the judgment below. But let us examine the facts in the order in which we have stated the rules. 1, The alleged common error in the location notice in question never received approval or toleration by judicial decision or legal opinion. The form of verification was adopted simply by a few prospectors in a part of the Territory, without any assurance from any source that it was correct. — 467 — 2. The United States and territorial laws as to the requirements of a location notice, as construed in 8 Mont. 248, are peremptory. We hesitate to admit that thirty-three per cent of the mining locators of one county of a vast Territory can, by their own unauthorized practice, abrogate, repeal, and nullify a positive law. 3. So far from the error being general or universal among the people, it was limited to a very small number. 4. It is not shown that large property interests depend upon the upholding of this location notice. Only 283 of these notices are found, and these all in two years. This was ten years ago. In the history of mining prospecting, ten years will see the valuable mines patented and the others abandoned or relocated. They are, in either instance, beyond the necessity of relying upon the defective location notice. 5. It does not appear that any considerable number of persons have relied upon, or sought to fix their rights upon, the alleged common errror. 6. The error existed but a short time. It attained its height months before the location of defendants. From March, 1880, it rapidly waned into desuetude, and disappeared with the defendants’ location December 22d. 7. The error was clearly enough proved, so far as it went. 8. The error did not consist in any effort to observe, construe, or interpret the law of Congress or the Territory. It was rather a direct disobedieuce of those laws. To construe or interpret a statute is to read it for the purpose of ascertaining its meaning and effect. He cannot be said to construe or interpret who clearly disregards the law. That is not construing. It is refusing to do so. It is defying the law. We arrive at the opinion that the facts in the case at bar are almost wholly in conflict with all the principles governing the application of communis error faeit jus. The District Court erred in instruction No. 3, recited above, upon the subject of common error. The action of the court in this matter of the alleged common error was objected to, and exception saved in other manner as well as in the instruction referred to. The j udgment is reversed, and the case remanded for a new trial. Blake, C. J., and Harwood, J., concur.