Penn v. Oldhauber

MR. JUSTICE WORD, after stating the case, delivered the opinion of the court. In the progress of the trial certain of plaintiffs’ witnesses were each asked, in substance, the question: “Do you know what were the rules and customs among miners in that district [meaning the district in which the Blue Bell lode was situated] as to the number of day’s work that constituted a hundred dollars worth of work?” The answer in each instance was, substantially: “Yes; twenty days’ work.” To this question, whenever asked, the defendant’s counsel objected on the ground that the same was incompetent, irrelevant, and immaterial, for the reason that the rules and customs as to the number of day’s work that” constituted $100 worth of work is not the standard by which the value of the work done upon a mining claim should be measured. The [290] court admitted this evidence subject to defendant’s objection, but afterwards excluded it from consideration on the ground that it was incompetent. This ruling of the court is the only-error assigned by appellants, and upon which they ask a reversal of the case. The appellants contend that in the year 1895 there was in existence in the district in which the property in controversy is situated a custom to the effect that 20 days’ work performed upon a claim satisfied the requirements of section 2324, Rev. St. U". S., as to annual work, and that evidence of such custom was admissible under section 1321 of the Code of Civil Procedure (Statutes of Montana.) Section 2324, Rev. St. U. S., among other things, provides that ‘ ‘the miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording amount of work necessary to hold possession of a mining claim, subject to the following requirements: * * * On each el aim located after the 10th day of May, eighteen hundred and seventy-two, and until a patent has been issued, therefor, not less than one hundred dollars worth of labor shall be performed or improvements made during each year:” And said section further provides that, upon a failure to comply with this condition, the claim or mine upon which such failure occurred, shall be open to relocation in the same manner as if no location of the same had ever been made. A rule or custom like the one appellants sought to establish must not only be reasonable, but it must not be in conflict with the laws of Congress, or of the state. Nor can such a custom authorize a less annual expenditure than that named in the Federal statute. (Sweet v. Webber, 7. Colo. 443, 4 Pac. 752; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. 301, 27 L. Ed. 990; Chambers v. Harrington, 111 U. S. 350, 4 Sup. Ct. 428, 28 L. Ed. 452.) From a consideration of this statute of the United States, it appears that, when the contention is as to whether or not a [291] mining claim has been represented for a given year, the test is not as to the number of days’ work done upon it, but what is the worth or reasonable value of the labor performed or improvements made thereon. The value of work done or improvements made is to be measured, not in days, but in dollars. Such work or improvements may add nothing to the value of the claim, but if, when completed, said work or improvements are reasonably worth the sum of one hundred dollars, then this requirement of the statute has been fulfilled. Such, in effect, is the holding of this court in Mattingly v. Lewishon, 13 Mont. 508, 35 Pac. 111, and that ruling we now approve. Were the principles contended for by appellants to prevail the sole question to be determined in a case like the one now under consideration, where the value of each day’s work had been fixed by custom, would be: How many days’ work has been done upon the claim? All questions as to the worth or reasonable value of the work done, or improvements made, or of the good faith of the owner, would be eliminated. Again, under the provisions of section 2324, Rev. St. U. S., we have a uniform rule as to the performance and as to the value of annual labor. Such would not be the case if the customs of a mining district as to the representation of claims are to be followed. In one district the actual value of tne work performed upon a claim within the number of days fixed by custom might be $100, while in another district, possibly adjacent, the reasonable value of the work done, or improvements made, because of a custom requiring a less number of days to represent a claim, might fall far short of the amount required by statute to be expended on a claim during each year. The actual cost to the same owner of representing claims in different districts, even though the custom as to the number of days’ work required^ to be performed was the same in each, might vary, owing to the difference in the price of labor. Other instances wherein the rule as to the value of the work done or improvements made in representing a mining claim, if the customs of a mining [292] district are tó prevail, would conflict with- that established by section 2324 of the Revised Statutes of the United States, readily suggest themselves. ’ That a custom such as that appellants sought to establish does conflict with said section 2324 is plain. The ruling of the court below excluding the evidence offered by appellants as to the rules and customs of the mining district in which the claim in controversy is situated is approved. A careful examination of the evidence shows a substantial conflict therein, and the judgment of the court below and the order refusing a new trial are accordingly affirmed. Affirmed. Mr. Chief Justice Brantly being disqualified, takes no part in the foregoing opinion.