De Wolfe, J.
Action brought to determine the right to the possession of a quartz lode mining claim, in pursuance of section 2326 of the Revised Statutes of the United States. The respondents claim under a location called the Justice Lode, made on the 2d of January, 1884, by George Travis and Joseph Flick, by their agent, Joseph Lutterell, a notice of which location was filed for record in the recorder’s office of Lewis and Clarke County, where said lode was situated, on the 8th of January following. The appellants claim under a location made on the 16th of October, 1885, by Elmer E. Brayman, of the Clementh Lode, recorded on the 19th of October, 1885. The allegations and denials were the usual ones in actions of this kind. The cause was tried by a jury, who returned a verdict for the plaintiffs. A judgment and decree were entered accordingly, awarding the possession of the premises to the plaintiffs (respondents in this court). The cause is brought up by appeal from the judgment and order overruling a motion for a new trial, based on errors in instructions given by the court to the jury. We will consider such of these instructions only as we deem necessary to determine the merits of this appeal. Instruction No. 9, given by the court, is as follows: “The jury are instructed that the recorded notice of location of the Justice Lode, prima fade establishes the facts, and the matters stated therein; and such matters can only be controverted by a preponderance of credible testimony on the part of the defendants.”
The law of Congress (U. S. Rev. Stats. § 2324) prescribes what the record of a lode location shall contain, when a record thereof is required by the local law, and is as follows, as far as it relates to this subject: “ All records of mining claims hereafter made shall contain the names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim.” The law of the Territory [303] which requires a record of lode claims to be filed in the recorder’s office of the county in which the location is made, within twenty days after the location, has in no way added to the requirements of the act of Congress above referred to, but only requires the record to describe the claim “in the manner provided by the laws of the United States.” (Comp. Stats. Mont. div. 5, § 1477.) The record in this case did contain several statements in addition to those required by the mining act of Congress referred to above. It recites, first, that the locators were citizens of the United States, or had declared their intention to become such citizens. This was not a declaration of any certain fact, but stated a fact in the alternative. Secondly, it recited the discovery of a vein or lode within the limits of the claim located, with a crevice of quartz or ore, with at least one well-defined wall. Thirdly, it gave the dimensions of the claim located, and described the same by metes and bounds, and recited that the location was distinctly marked on the ground so that its boundaries could be readily traced. These several statements contained in the record were, if not superfluous, certainly in addition to the statements required by law to be contained in the record of a mining location. As to the recital that the locators had located a vein or lode with “at least one well-defined wall,” it is unnecessary to determine here whether the legislature of the Territory had authority to engraft a requirement of this kind upon the act of Congress governing the location of claims on veins, lodes, or ledges; and whether such an enactment is not in conflict with that section of the Organic Act of the Territory, which prohibits the territorial legislature from passing any law which interferes with the primary disposal of the soil. The legislation is at least of doubtful authority; but whether valid or invalid, like the other recitals of this record above referred to, it was not required to be stated in a location record. Any doubt as to this point is in no respect in conflict with the opinion of this court as to the validity of the territorial law requiring the locators of a lode claim to make affidavit to the notice of location, as decided in the case of O’Donnelly. Glenn, ante, page 248, decided at the January term of this court. We understand the true rule to be that, when the law requires a record of any instrument, the record itself is [304] the best evidence of the facts therein stated. Our statute somewhat extends the rule, and makes a certified copy of a record admissible in like manner, and with like effect as the original would be if produced. (Code Civ. Proc. § 542.)
Free access — add to your briefcase to read the full text and ask questions with AI
De Wolfe, J.
Action brought to determine the right to the possession of a quartz lode mining claim, in pursuance of section 2326 of the Revised Statutes of the United States. The respondents claim under a location called the Justice Lode, made on the 2d of January, 1884, by George Travis and Joseph Flick, by their agent, Joseph Lutterell, a notice of which location was filed for record in the recorder’s office of Lewis and Clarke County, where said lode was situated, on the 8th of January following. The appellants claim under a location made on the 16th of October, 1885, by Elmer E. Brayman, of the Clementh Lode, recorded on the 19th of October, 1885. The allegations and denials were the usual ones in actions of this kind. The cause was tried by a jury, who returned a verdict for the plaintiffs. A judgment and decree were entered accordingly, awarding the possession of the premises to the plaintiffs (respondents in this court). The cause is brought up by appeal from the judgment and order overruling a motion for a new trial, based on errors in instructions given by the court to the jury. We will consider such of these instructions only as we deem necessary to determine the merits of this appeal. Instruction No. 9, given by the court, is as follows: “The jury are instructed that the recorded notice of location of the Justice Lode, prima fade establishes the facts, and the matters stated therein; and such matters can only be controverted by a preponderance of credible testimony on the part of the defendants.”
The law of Congress (U. S. Rev. Stats. § 2324) prescribes what the record of a lode location shall contain, when a record thereof is required by the local law, and is as follows, as far as it relates to this subject: “ All records of mining claims hereafter made shall contain the names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim.” The law of the Territory [303] which requires a record of lode claims to be filed in the recorder’s office of the county in which the location is made, within twenty days after the location, has in no way added to the requirements of the act of Congress above referred to, but only requires the record to describe the claim “in the manner provided by the laws of the United States.” (Comp. Stats. Mont. div. 5, § 1477.) The record in this case did contain several statements in addition to those required by the mining act of Congress referred to above. It recites, first, that the locators were citizens of the United States, or had declared their intention to become such citizens. This was not a declaration of any certain fact, but stated a fact in the alternative. Secondly, it recited the discovery of a vein or lode within the limits of the claim located, with a crevice of quartz or ore, with at least one well-defined wall. Thirdly, it gave the dimensions of the claim located, and described the same by metes and bounds, and recited that the location was distinctly marked on the ground so that its boundaries could be readily traced. These several statements contained in the record were, if not superfluous, certainly in addition to the statements required by law to be contained in the record of a mining location. As to the recital that the locators had located a vein or lode with “at least one well-defined wall,” it is unnecessary to determine here whether the legislature of the Territory had authority to engraft a requirement of this kind upon the act of Congress governing the location of claims on veins, lodes, or ledges; and whether such an enactment is not in conflict with that section of the Organic Act of the Territory, which prohibits the territorial legislature from passing any law which interferes with the primary disposal of the soil. The legislation is at least of doubtful authority; but whether valid or invalid, like the other recitals of this record above referred to, it was not required to be stated in a location record. Any doubt as to this point is in no respect in conflict with the opinion of this court as to the validity of the territorial law requiring the locators of a lode claim to make affidavit to the notice of location, as decided in the case of O’Donnelly. Glenn, ante, page 248, decided at the January term of this court. We understand the true rule to be that, when the law requires a record of any instrument, the record itself is [304] the best evidence of the facts therein stated. Our statute somewhat extends the rule, and makes a certified copy of a record admissible in like manner, and with like effect as the original would be if produced. (Code Civ. Proc. § 542.)
This familiar principle of evidence does not require a reference to authority to show its correctness; but the rule itself is limited to such facts and instruments as by law are required to be of record, and does not extend to such outside or extrinsic facts, which, though contained in a record, are not required by law. If this was not so, it would be in the power of any one to manufacture evidence in his own behalf, by putting in a record something outside the requirements of law, and then introducing the record as proof of such fact; such is not, and was never intended to be, the rule applicable to official records. Prior to 1883 there was no law of this Territory requiring a record of placer locations. In 1876 the case of Moxon v. Wilkinson, 2 Mont. 421, came before this court on appeal, and one of the errors assigned in the appeal was, the refusal of the court to admit in evidence the record of a placer location; but on this question the court, speaking through Justice Blake, says: “ There is no law of the Territory which requires the discoverer of a placer mining claim to make or file for record a statement respecting it. The instrument purporting to be a record of the ground in dispute by the appellants was not made and filed under the laws of the Territory or the United States, and could not be a legal notice of their rights to the respondents. It was not a link in the chain of their title, and the court properly excluded it as incompetent evidence.” (Referring to the case of Mesick v. Sunderland, 6 Cal. 315, in support of the doctrine thus laid down.) Accepting this as a correct statement of the rule of evidence applicable to the admissibility of a record in evidence, and applying the rule to instruction No, 9, it clearly appears that that instruction was too broad and general in stating that the recorded notice of location of the Justice Lode prima faeie established the facts and matters therein contained, and such facts and matters could only be controverted by a preponderance of credible testimony on the part of defendants. The effect of the instruction was to shift the burden of proof of the due location of the Justice Lode from the plaintiffs to the [305] defendants, a fact that we have shown was not, and could not be proved by the record of location. It is urged on the part of the respondents that the instructions, taken as a whole, correctly state the law applicable to the case. We will not deny the correctness of most of the instructions which the court gave; but if the correct rule was elsewhere stated in the instructions, the instruction referred to must have been in conflict therewith; and it has been held in many cases that where instructions on a material point are contradictory and inconsistent, the judgment must, on this account, be reversed. In Brown v. McAllister, 39 Cal. 573, the court says on this point: “ When the instructions on a material point are contradictory, it is impossible for the jury to decide which should prevail; and it is equally impossible, after the verdict, to know that the jury was not influenced by the instruction which was erroneous, as one or the other must be, when the two are repugnant.” (Referring also to other authorities holding a like principle.)
For the error contained in the instruction mentioned the cause must be reversed and remanded for a new trial.
Judgment reversed.
Bach, J., and Liddell, J., concur.