Axiom Mining Co. v. White

Fuller, J. This action, to determine adyerse claims and qniet the title, as against appellants, to a mineral claim known as the ‘-Henry George. Lode,” held by respondent, a corporation, in common with other similar locations contiguous thereto, was tried to the court without a jury, upon stipulated facts, which in effect eliminate every consideration other than alleged errors of law occurring at the trial, the sufficiency of the evidence to sustain a judgment for respondent, and the ruling of the trial court in denying appellants’ motion for a new trial. It is conceded as against the world that respondent was, prior to the year 1891, owner in common and in possession of the Henry George lode, above mentioned, and the Harrison, Clontarf, Buena Vista, and Powderly lodes, contiguous thereto, by virtue of a conveyance from original locators, and a compliance with Sec. 2324 of the United States Revised Statutes, relative to the performance of annual labor; but appellants, who rely upon an adverse claim, contend that the Henry George was abandoned, and subject to their relocation, by reason of a failure on the part of the respondent to perform the required assessment work during the year 1891. Sec. 2324, supra, provides that “on each claim located after the tenth 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; * * * but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, 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.” As, under the law, contiguous locations held in common are treated as entireties, an expenditure of an amount 201 equal to $100 for each may be made upon one or more of such locations, provided such expenditure tends to the development of the property as a whole, and the burden of proving forfeiture or an intention to abandon is upon the one claiming under an adverse location. Clai’k, H. & C. Min. Law Dig. p. 480. “A forfeiture of a mining claim cannot be established except upon clear and convincing proof of the failure of the former owner to have work performed or improvements made to the amount required by law.” Hammer v. Milling Co., 130 U. S. 291, 9 Sup. Ct. 548; Quigley v. Gillett, 101 Cal. 462, 35 Pac. 1040; Johnson v. Young, 18 Colo. 625, 34 Pac. 173; Oreamuno v. Mining Co., 1 Nev. 215; Bishop v. Baisley (Or.) 41 Pac. 936. We are convinced from a regardful examination of the voluminous testimony offered at the trial, covering more than 225 closely printed pages of appellants’ abstract, that there is evidence sufficient to sustain the finding “that during the year 1891 the plaintiff did and performed, and caused to be done and performed, work, labor, and improvements upon the said Henry George lode to the value' of more than one hundred dollars, which said labor and expenditure was done and performed by plaintiff upon said Henry George lode for the purpose of developing the same, and performing the representative work required thereon by law for the year 1891, and that said Henry George lode was not abandoned by the owners thereof, the Axiom Mining Company, in the year 1891.” While, by every reasonable inference, appellants’ counsel concedes that a large number of witnesses testified positively that the value of the work done by respondent during the year 1891 on the Henry George lode was in excess of $100, and that the labor performed on the contiguous claims for the development of the entire property held in common, and including the location in dispute, greatly exceeded in value one hundred dollars per claim, he contends that such evidence was all unworthy of credence, and should have been disregarded by the trial court. Were we so extravagant as to assume that the witnesses assailed by coun 202 sel, with the intent to deceive, testified falsely to a material point, it would be exceedingly arbitrary for us to hold that by nob applying the maxim, “Falsus in tono, falsus in omnibus,” the trial court abused its discretion. Such is not the law. State v. Sexton, (10 S. D. 127) 72 N.W. 84. The witnesses appeared in person at the trial, and the judge, who observed their demeanor upon the stand, had facilities for determining their credibility which are denied to appellate tribunals, confined to the printed pages of the abstract. Moreover, as the evidence is conflicting, and the findings of fact always presumptively right, and in this instance obviously not against a fair preponderance of testimony, any interference therewith on appeal would be without justification. Caulfield v. Bogle, 2 Dak. 464, 11 N. W. 511; Feldman v. Trumbower, 7 S. D. 408, 64 N. W. 189; Evenson v. Webster, 5 S. D. 266, 58 N. W. 669; Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454. Counsel for both parties have in their briefs treated one of the' grounds specified in the motion for a new trial as that of “newly discovered evidence”; and, notwithstanding the application as made fails to come within the statute or rule governing such motions, the showing made has received careful consideration. The evidence offered is cumulative and impeaching in its character, and no sufficient reason is shown why the same was not obtained and introduced on the former trial. This court has held that, 1 ‘except under unusual circumstances, a new trial will not be granted on the ground of newly discovered evidence which goes only to discredit or impeach a witness, or which is merely cumulative. ” Scheffer v. Corson, 5 S. D. 233, 58 N. W. 555; Longley v. Daly, 1 S. D. 257, 46 N. W. 247; Gaines v. White, 2 S. D. 410, 50 N. W. 901. As such an application is addressed to the discretion of the court, always presumptively sound and properly exercised, in the absence of anything to show an abuse of such discretion, we decline to-disturb the ruling. Finding nothing in the record which requires a reversal, the judgment of the trial court is affirmed.