Dillon v. Bayliss

De Witt, J. We will discuss the two points suggested in the above statement of the case. Was the location notice properly admitted in evidence? Did the court properly exclude evidence tending to show that the description in the notice was not sufficient to identify the claim? 1. The Devised Statutes of the United States (§ 2324), under which locations of mining claims may be made upon the public domain, provide: “All records of mining claims .... shall contain .... such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.” The description in the location notice of the Kilby Claim is by reference to three alleged adjoining claims, the Marble Heart, the Nine Hour, and the St. Louis. A description by reference to an adjoining mining claim is a sufficient reference to a permanent monument to allow the notice of location to be intro — 179 — duced in evidence, and it then becomes a matter of proof as to whether the adjoining claim is a permanent monument. In Metcalf v. Prescott, 10 Mont. 283, is the last affirmance which this court has made of a line of decisions to that effect. Therefore, the reference to a permanent monument was sufficient in the Kilby location notice to allow it to be introduced in evidence. Appellant’s counsel, as appears by the records of this court, is not without a share in the labor of establishing this doctrine upon the firm foundation on which it now rests in this court, and in the argument at the bar in this case he cordially assents to its continued stability. But his objection to the location notice goes beyond the principle just cited. Admitting that the three mentioned adjoining claims are permanent monuments, yet he says that the reference to them does not identify the claim. We are prepared to concede that, no matter how permanent and prominent the monument may be, or how conspicuous and certain the natural object is, yet, if there was no intelligent reference to them that would identify the claim, the description would not satisfy the requirements of the United States law. The very object of selecting a natural object, or erecting or referring to a permanent monument, is, in the language of the statute, to identify the claim. As remarked by Judge Hallett in Faxon v. Barnard, in the Circuit Court of the United States for the district of Colorado, 9 Morr. Min. Rep. 515 s "The government gives its lands to those citizens who may discover precious metal ores therein, upon the condition that they will define the subject of the grant with such certainty as may be necessary to prevent mistakes on the part of the government, and on the part of other citizens who may be asking the same bounty. This is reasonable and necessary to justly administer the law, and therefore it must be said that without such description a certificate of location is void.” Now, what are the facts as to the location notice in question? We examine it now upon its face alone, to ascertain whether it should, prima facie, be admitted in evidence, wholly disregarding, for the present, all uncertainties and ambiguities that may be developed by evidence aliunde the notice. We find that the claim is two hundred feet long, running easterly and westerly, and six hundred feet wide. It is in a — 180 — certain mining district, county, and Territory. A post and notice are set at discovery shaft. There is a substantial post and monument at each corner. The Marble Heart claim is on the southeast, the Nine Hour on the southwest, and the St. Louis on the north. The description begins at the southwest boundary of the Marble Heart, and runs two hundred feet to the Nine Hour, on the southwest side. Appellant argues that, if the Marble Heart is on the southeast of the Kilby, that a corner of the Kilby cannot be on the southwest boundary of the Marble Heart. From the location notice, the court did not know the directions of the surface lines of the Marble Heart, or the superficial shape of the same, or of the other adjoining claims. Mining claims are not always right-angled parallelograms. They are frequently, especially in a district well covered by locations, and in which are many fractions of full claims, very irregular figures, preserving a general parallelism of the end lines. It does not appear from the face of the Kilby location notice that the Marble Heart was of such a shape that there was not a boundary which could be intelligently called a southwest boundary, although the body of the Marble Heart might be properly described as lying southeast of the Kilby. A court could not say from an inspection of the notice that such description was an impossible or uncertain one. And so with the balance of the description by reference to the adjoining claims. The face of the notice does not set forth the corners or figures of the Nine Hour or St. Louis claims. It does not appear from the notice, but the surface lines of these claims were such that the Kilby’s reference to them would have been certain, -when one went upon the ground, and observed their lines, and the Kilby’s conformation to them. The Supreme Court of Colorado in Drummond v. Long, 9 Colo. 539, says: “ That degree of certainty with which the final survey for a patent fixes the focus and boundaries of the subject-matter of the grant is not required in the original location to be made by the discoverer of the lode, nor would it be practicable, without the aid of a professional surveyor.” We are of opinion that there was no error in admitting the location notice in evidence. Its fate, however, when it got into — 181 — court, and met the attacks of its adversary, is another matter, and brings us to the consideration of the second error assigned by the appellant. 2. It was shown in the evidence and by one of plaintiff’s witnesses, among others, that the three adjoining claims named were situated in directions from the Kilby other than those set forth in the location notice. Witnesses who were skilled engineers were offered to prove that an engineer could not take the description in the location notice, and, by referring to the permanent monuments therein mentioned, find the premises claimed as the Kilby Lode. We do not attach importance to the fact that these witnesses were professional engineers. We mention them as such, for it was in that character that they appeared upon the trial. If, instead of being engineers, they had been any other class of persons, “who, having organs of sense, can perceive, aud, perceiving, can make known their perceptions to others,” the principle involved in the exclusion of their evidence would have been the same. Their offered testimony was not excluded because it was an attempt to set up the technical aud exact rules and methods of applied mathematics as against the common perceptions of laymen. We can understand bow an engineer might say professionally that a description was insufficient for him to find the ground, if he spoke by the principles of the exact science in which he dealt, while, as an ordinary observer, he might be compelled to admit that the description would guide him to the ground, and that, disregarding scientific errors and inaccuracies, he might find the ground intended to be described. But, as remarked, the engineers’ testimony was not excluded because it was offered as conclusive in establishing that the description Avas fatally defective. It was not objected to that it was applying too strict scientific measurements to locations Avhich of necessity are made by men unacquainted with professional surveying, The laAV recognizes that locations of mining claims are generally not made Avitlx mathematical exactness, and much liberality is properly extended to the locator who does the best that the circumstances allow. A surveyor could technically and truthfully say that a certain description would not identity the ground. With scientific — 182 — exactness, it might not; but a practical miner, familiar with the methods of locating claims, and with knowledge of the neighborhood, might as truthfully testify that he could take the description and find the ground. The question in the case at bar is not between exact science and common knowledge. The engineers’ testimony was excluded on a different ground — a ground that would have applied as well to the witness of common knowledge as to the civil engineer. If the engineers’ testimony was to be excluded on the ground assigned, then all testimony of all witnesses to the same effect is incompetent. The ground was as follows: Respondent took the position that the sufficiency of the description in the location notice was a matter for the court, and this was concluded by the fact that the location notice had been admitted in evidence, and that it could not then be attacked by testimony. On this objection the court excluded the testimony offered. To be sure, it was for the court to determine whether the location notice was sufficient, on its face, to admit it in evidence; and this, as we have shown above, the court properly decided. But did the notice then become infallible? Could it not be shown by engineers, or any competent witnesses who knew the facts, that the description of the notice, when applied to the premises and the alleged monuments, failed to identify the claim? And this is the precise class of testimony that the court had been allowing throughout the trial. The responsibility of its exclusion at this point, we are constrained to remark, is upon the counsel and not upon the court. The objection, as appears, was, quoting the language of the record, “ for the reasons above given.” This was in the course of an examination, in which certain pertinent objections had been made, and the reasons given, and the objections sustained. Then comes the objection in question, “for the reasons above given.” Among those “ reasons above given ” was the one that the description in the location notice was conclusive. This was not called to the special attention of the court, but, in the collection of “reasons above given,” the court must have had in mind other reasons and grounds which were deemed to be good. This is the only explanation of the sudden and single departure of the court from the course which it had theretofore followed. — 183 — Take the respondent’s position in its extreme results, and it would appear that, if the description upon the face of a notice is good, then it is still good, even if it be made to appear by the clearest evidence that it describes nothing. Take an apparently good description, go upon the ground with it, find the monuments mentioned, then start to run the lines of the claim by reference to the monuments, and find that the monuments so exist, and the lines are so located by reference to them that the description is wholly unintelligible, and, with the description, one cannot find the premises intended to be described. Then we must accept that location description as final, and cannot show by any testimony that it is utterly worthless for the purposes of identifying the claim. We do not understand that to be the law. The reference to natural objects or permanent monuments is for the purpose of identifying the claim. It is, among other purposes, to show the prospector that the ground that he may desire to appropriate has been taken by another. Now, if such prospector reads his predecessor’s notice, finds his monuments, and, tracing the description, finds nothing described, is that notice to him? Or is it a description which enables the government to grant to such locator anything certain? We think not. We do not know what the testimony of these witnesses would have been. We do not speak of its weight. It might have been, in the minds of the jury, wholly overthrown. But the nature of it was competent. It is a matter of proof whether or not an object described in the location notice as a permanent monument is in fact such. Then it is certainly a matter of legitimate proof whether, in fact, there is any reference to the permanent monument which is intelligible, or whether the reference is delusive, meaning nothing, describing nothing, and misleading. Let it be well understood that we pass upon the objection as it was made and sustained. If the question was objectionable upon grounds other than those assigned, and called to the attention of the court, that was not before the District Court nor this court. The court on the trial had received evidence of the errors of the description, that the adjoining claims were not situated as described in the notice, and evidence tending to show — 184 — that the claim could not be found from the description. Then the question is asked, could a civil engineer take the description and find the ground? In view of the question, and the objection thereto, it would have been the same thing if it had been asked whether the ground could be found from the description? and, if not, why not? going into the same testimony as to errors in the description which the court had already entertained, and the case would have been upon the same ground upon which it had been proceeding. But counsel’s objection threw the case off the track which it had been pursuing. He said the location notice description was conclusive, and it could not be attacked by evidence; and this view the court sustained, apparently inadvertently, because it contradicted the theory upon which the court had theretofore gone. As the objection was made, it was not valid, and we pass upon its validity as made. The logic of Russell v. Chumasero, 4 Mont. 317, and kindred cases, points clearly to this view. The notice in those cases was admitted, not as conclusive. The notice, prima facie good, may go into evidence. Then it may be shown whether the natural object or permanent monument is such. The reference to the permanent monument is quite as material to the description as is the permanent monument itself. A permanent monument, with no intelligible reference to it, would not describe or identify the claim. Then why may it not be shown that there is no reference, as well as that there is no permanent monument? Of this we have no doubt whatever. We are of opinion that the court erred in excluding the pro-offered testimony of Cummings, Keerl, and Bobinson, and on that ground the judgment is reversed and the case is remanded, with directions to grant a new trial. Reversed. Harwood, J., concurs. Blake, C. J., having tried this case when chief justice of the territorial Supreme Court, did not participate in this decision.