Bonanza Consolidated Mining Co. v. Golden Head Mining Co.

80 P. 436, 29 Utah 159, 1905 Utah LEXIS 9

• Court: Utah Supreme Court
• Decided: April 11, 1905
• Docket: No. 1612
• Status: Published

Opinions

BARTCH, C. J.,

after stating the facts, delivered the opinion of the court.

The principal and decisive question presented on this appeal is whether the notices of location of the Medway and Hillside mining claims, considering the supplementary proof, were properly admitted in evidence over the objection by the appellants of uncertainty of description. The notice of the Medway reads:

“Notice is hereby given that the undersigned having complied with the requirements of section 2324 of the Revised Statutes of the United States and the local laws, customs and regulations of this district, has located 1,500 feet in length by 600 feet in width on this the Medway lode, vein or deposit, bearing gold, silver and other precious metals, situated in Snake Creek Mining District, Wasatch county, Utah Territory, the location being described and marked on the ground as follow, to-wit:

“Commencing at discovery and running Y50 feet in a northeasterly direction, and 750 feet in a southwesterly direction and marking the exterior ends by lawful stakes 1, 2, 3, and 4, a claim 300 feet on each side of center of same. The nearest known claim is the Hillside. The mining claim above described shall be known as the Medway.

“Located this 7th day of January, 1888.

“Name of locator, Hugh Bhlkenney, 1,500 feet.

“Filed for record January 11, 1888, at 3 o’clock, p. m.

“JeeeMiah Roby, Recorder.”

The notice of the Hillside reads:

“Notice is hereby given that the undersigned, having complied with the requirements of section 2324 of the Revised Statutes of the United States and the local laws, customs arid regulations of this district, has located 1,500 feet in length by 600 feet in width on this Hillside lode, vein or deposit, bearing gold, silver and other precious metals, situated in the Snake Creek Mining District, Wasatch county, Utah Territory, the location being described and marked on the ground as follows, to-wit:

“Commencing at the discovery and claiming 300 feet on each side of the centre of the vein, together with all dips, spurs, angles and variations, running 750 feet in a southwesterly direction and 750 feet in a northeasterly direction from discovery and marked by laurful stakes on both ends and comers 1, 2, 3, and 4. The nearest known claim is the Wild Bill mine on the west. The mining claim above described shall be known as the Hillside mine.

“Located this 7th day of January, 1888.

“Name of locator, Hugh Kilkenney, 1,500 feet.

“Riled for record January 11, 1888, at 3 o’clock, p. m.

“Jeremiah Roby, Recorder.”

.The objections urged, to these notices are that they are indefinite, do not describe any ground, and do not tip the claims to any natural monument or permanent object; and that they do not comply with the requirements of section 2324, Revised Statutes, United States (U. S. Comp. St. 1901, p.- 1426), which provides that such locations “must be distinctly marked on the ground” so that their “boundaries can be readily traced,” and requires that all records of mining claims shall contain, among other things, “such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.” We do not regard these objections as well founded. It will be observed that, while the notices are not artistically drawn, each one nevertheless shows a discovery made upon a vein or deposit bearing precious metals; the amount of ground claimed; the length of the claim, giving the distance in opposite directions from the discovery; that the claim was staked at both ends and at the corners in a lawful way; and refers to another claim as the one nearest to it. Each notice also contains the name of the claim, the signature of the locator, the date of location and of record, and the county and mining district where located. Then there is proof to show that the descriptions and marking of the boundaries indicated in each notice were true; that a stake and notice was posted up at each discovery, and that a stake three or four inches in diameter and four to four and a half feet high was marked and put up at each corner, except at the northeast corner of the Medway, where a stump was marked as the corner; that the stakes were driven into the ground at the respective corners and numbered as indicated in the notices; that they were reset from time to time and kept up; and that the surveys for patent were made covering the ground practically as originally located and staked. These notices, where the ground was actually marked as shown by the proof herein, although in some particulars indefinite and subject to criticism, were not calculated to mislead the public. Any prospector who appeared and read the notices could readily identify the ground embraced within the description. Such a notice -is a sufficient compliance with the statute, and when it substantially complies with the statute it is sufficient for record.

In the location of a mining claim the notice or “cértificate is not required to show the precise boundaries of the claim as marked on the ground, but it is sufficient if it contains directions, which, taken in connection with such boundaries, will enable a person of reasonable intelligence to find the claim and trace the lines.” (1 Lindley on Mines, sec. 381; Carter v. Bacigalupi, 83 Cal. 187, 23 Pac. 361.) Location notices of mining claims, being usually prepared by unlettered men, must not be held to technical accuracy, but must be construed with much liberality, else the main object of the law, which was not to wrest from the prospector the fruits resulting from honest toil and innumerable hardships, but to aid him in acquiring valuable rights in mining property, and to develop the mineral resources of the country, will be defeated. It is true the descriptions should bo as definite as the surrounding circumstances permit.

“With just how much accuracy the description of a mining claim, in reference to a natural object or permanent monument, must be stated in the notice of location, is not set forth in the statute; and where, as in this case, the location was evidently made in good faith, we are not disposed to hold the locator to a very strict compliance with the law in respect to his location notice. If, by any reasonable construction, in view of the surrounding circumstances, the language employed in the description will impart notice to subsequent locators, it is sufficient. Prospectors, as a rule, make no pretensions of scholarship or the art of composition, are neither surveyors nor lawyers; and if, in their notice of location, technical accuracy of expression were an absolute requirement, the object of the law, which doubtless is the encouragement and benefit of the miners, would in many cases be frustrated, and injustice would result, by the disturbing of possession after much hard labor performed and money in good faith expended. Therefore mere imperfections in the notice of location will not render it void. Courts have usually construed the statute respecting the location of mining claims with much liberality, and the sufficiency of the location, with reference to natural objects or permanent monuments, is simply a question of fact.” (Gold Mining Co. v. Gold & Copper Co., 20 Utah 363, 58 Pac. 832; 1 Lindley on Mines, sec. 355; Wells v. Davis, 22 Utah 322, 62 Pac. 3; Wilson v. Triumph Min. Co., 19 Utah 66, 56 Pac. 300, 75 Am. St. Rep. 718; North Noonday Min. Co. v. Orient Min. Co. [C. C.], 1 Fed. 522; Erhardt v. Boaro, 113 U. S. 52, 5 Sup. Ct. 560, 28 L. Ed. 1113.)

The circumstances and conditions of the surrounding country may be, and, doubtless, in many instances are, such that stakes driven firmly into the ground will afford the best means to identify the claim and the discovery. In such cases such identification will be considered as a sufficient compliance with the statute. As said by the Supreme Court of the United States in Hammer v. Garfield Min. Co., 130 U. S. 291, 9 Sup. Ct. 548, 32 L. Ed. 964:

. “There provisions, as appears on their face, are designed to secure a definite description — one so plain that the claim can be readily ascertained. A reference to some natural object or permanent monument is named for that purpose. Of course, the section means, when such reference can be made. Mining lode claims are frequently found where there are no permanent monuments or natural objects other than rocks or neighboring hills. Stakes driven into the ground are in such cases the most certain means of identification.” (Jupiter Min. Co. v. Bodie Con. Min. Co. [C. C.], 11 Fed. 666; Baton v. Norris, 131 Cal. 561, 63 Pac. 856.)

We are of the opinion that the notices in question, under the circumstances, were sufficiently definite to comply with the law, and were properly admitted in evidence. Nor do we think the court erred in admitting in evidence, against the objection that it was not pleaded, the decree in favor of Kilkenny and against the plaintiff in a former action, which decree adjudged Kilkenny to be the owner of the Last Chance mining claim, which embraced within its exterior boundaries the discovery point of Blackhawk No. 2 claim. There is no doubt that, where a party to an action in equity relies upon a former adjudication as a bar to an action, such adjudication, to be of avail, must be pleaded; but that doctrine has no application here. In this case the controversy is over the conflict of the Blackhawk No. 2 with, the Medway claim, and this conflict was not involved in the former litigation. There only such portion of the Blackhawk No. 2 was involved as conflicted with the Last Chance claim, and that conflict was adjudicated in that case; and the Last Chance, which included within its boundaries the discovery point of the Blackhawk No. 2, was decreed to belong to Kilkenny. In this action a prior location of a valid claim, Blackhawk No. 2, was alleged by the plaintiffs. This was denied by the defendant, and its claim that the Medway was a valid location was set up and relied upon. Upon this issue thus raised the right to the conflict area was to be determined. The defendant, to maintain its position, had a right to resort to any legal proof which would show that the Blackhawk No. 2 was not a valid location, and hence could show by such proof that the discovery point of that claim was adjudicated to be within the boundaries of another prior, existing valid location or claim. For such purpose the judgment in question was admissible, because it constituted legal proof of the fact that the entire location of the Blackhawk Np. 2 claim, including that portion in conflict with the Medway claim, is invalid. It was a judgment in a suit where the opposing party herein was party plaintiff, and where the party defendant herein was in privity with the party defendant therein, and constituted merely proof that a certain mineral location was void. The decree was not, and could not, without proper plea, be offered for the purpose of showing that the matter in issue herein was res judicata. Nor could it be relied upon as res judicata of this controversy. In Glenn v. Priest (C. C,), 48 Fed. 19, Mr. Justice Thayer, referring to a Missouri case, where it was held that judgment might be offered in a subsequent case as evidence of a fact, though not pleaded, said:

“It will also be observed from a careful examina-; tion of the case in question that, as the issues were made up, the judgment in all probability was properly admissible in evidence, even if it had been objected to, because it tended to contradict material facts stated in the petition. My conclusion is that under the Missouri Code a judgment must be specially pleaded before it can be admitted in evidence, when tbe purpose of offering it is merely to show that the matter in issue is res judicata.. If a judgment in a former suit between the parties tends to disprove material facts stated by the plaintiff in his petition, a different rule obtains.” (Garton v. Botts, 73 Mo. 274; Krekeler v. Ritter, 62 N. Y. 372.)

Nor do we think the court erred in holding that the appellants are not entitled to the Eclipse mining claim. The findings and decree as to that claim as well as to the others appear to be supported by competent proof.

The remaining questions presented, but not herein discussed, we have carefully examined, and found no reversible error.

The judgment of the court is affirmed, with eosts.

McCARTY, J., concurs.