Garfield M. & M. Co. v. Hammer and others
8 P. 153, 6 Mont. 53 (1885)
Filed August 15, 1885
1. MINING CLAIM WHAT CONSTITUTES LOCATION.
A valid location of a mining claim is not made by taking possession alone but by marking on the ground, recording, and doing whatever else is requires for the purpose by the acts of congress and the local laws and regulations.
2. SAME LOCATION NOTICE CITIZENSHIP PRESUMPTION.
Where the oath attached to the notice of location of a lode by one of the locators states that he and his co-locators are citizens of the United States over the age of 21 years, the presumption that the locators were citizens will protect the title of a party to whom they have transferred their claim, until it is affirmatively made to appear they were not citizens, or had not declared their intention to become such.
3. SAME IDENTIFICATION OF LAND.
Where a location is described by metes and hounds in a notice otherwise sufficient, and is further described as being 1,500 feet south from a well-known quartz location, and there is nothing in the evidence to contradict such description, distance, and direction, the ground claimed is sufficiently identified.
4. NEW TRIAL NEWLY DISCOVERED EVIDENCE.
Newly-discovered evidence that can only affect the credibility of a witness, or that is merely cumulative, is not ground for a new trial.
5. EVIDENCE CERTIFIED COPY OF LOCATION NOTICE DEED ARTICLES OF INCORPORATION MONTANA STATUTE.
A certified copy of a location notice, or of a deed, or of a certificate of incorporation, is admissible in evidence without first accounting for the original.
6. MINING CLAIM OPINION OF WITNESS.
A. witness who is not a mining expert is not competent to say whether, from an inspection of a shaft, he would have known if any work had been done there.
7. FOREIGN CORPORATION RIGHT TO DO BUSINESS IN MONTANA.
Under sections 46 and 47 of tile Codified Statutes of Montana a foreign corporation is not prohibited from doing business in that territory.Appeal from Third district, Lewis and Clarke county.
E. W. & J. K. Toole, for appellants, A. O. Hammer and others.
Sanders & Cullen, for respondent, Garfield M. & M. Co.
GALBRAITH, J. This is an appeal from an order overruling a motion for a new trial. The action was to quiet title. A trial by a jury was had between the respondent and the appellant Hammer. The pleadings, so far as they were concerned, were in substance as follows:
The complaint alleged that the respondent is a body politic and corporate, organized under the laws of the state of New York for the purpose of mining and milling ores, containing the precious metals, in Montana territory, and that it has complied with the laws of that territory in relation to foreign corporations; that it is the owner of a certain quartz-lode mining claim situate in Vaughn (unorganized) mining district, in the county of Lewis and Clarke, and territory of Montana, called the "Garfield Lode or Mining Claim;" that the respondent is now in the possession of the above claim, and that plain-
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tiff, and its predecessors in interest, have been, ever since the discovery and location of said claim, in the possession of the same, and entitled to be so in possession thereof; that the appellant Hammer, on or about the first day of January, 1883, assumed to enter upon said premises and to relocate the same, and had the relocation recorded in the county of Lewis and Clarke as the "Kinna Lode," and thereby now claims an interest therein, and the possession thereof, adversely to the respondent, and has made application for a patent to the premises under the name of the "Kinna Lode;" that the claim of the appellant is without any right whatever; that the respondent has filed its adverse claim in the land-office, whereby proceedings will be stayed till the final determination of the right to the premises.
The answer denies that the respondent "ever was or is a body politic and corporate, or that it has duly complied with the laws of Montana territory relative to foreign corporations; denies that the respondent is the owner of the premises, or that it is now, or ever was, in the possession thereof; or that it or its predecessors in interest have been, ever since the discovery or location thereof, in possession of the same, or are or 'were entitled to such possession, or that he assumed to relocate the said premises, or caused any location thereof to be recorded as the 'Kinna Lode,' or that his claim is without right, or that he has not any estate, title, interest, or right to the possession of said premises."
The appellant then founds his claim to the premises by virtue of a certain location made on the first day of January, 1883, by the name of the "Kinna Lode," the premises being then vacant mineral lands of the United States, such location having been made in full compliance with the laws of congress and Montana territory by one Wolfe; that on the day of January, 1883, the appellant purchased the premises from Wolfe, and ever since the first day of January, 1883, the appellant and his predecessor in interest have been the owners of, held possession, and duly represented, said Kinna Lode, and ever since said time this defendant has been and now is entitled to the possession of the same; that whatever claim the respondent ever had (if any) to said premises was forfeited prior to first January, 1883.
The reply denied all the affirmative allegations set forth in the answer. Upon the trial the court instructed the jury as follows:
"If you believe, from the evidence in the case that prior to the thirty-first day of December, A. D. 1882. the plaintiff was in the quiet and undisputed possession of the premises designated in the complaint as the "Garfield Lode," the validity of the original location of which is not questioned in the pleadings or testimony, claimed by the defendant as the Kinna Lode; that the boundaries of said claim were so marked upon the surface as to be readily traced; and that theretofore there had been discovered within said boundaries a vein or lode or quartz or other rock, in place, bearing gold, silver, or other precious metals, then this constitutes a prima facie case for the plaintiff, which can only be overcome by the defendant by proof of subsequent abandonment
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or forfeiture, or other divestiture, and the acquisition of a better right or title by the defendant."
The above statement of the pleadings shows that the respondent claimed its right to a decree that the title and right to the possession of the premises be adjudged to be in it, upon the allegations of ownership, possession, and right of possession thereto, and that these allegations are denied by toe answer.
The allegation of forfeiture in the answer is consistent with these denials. The respondent does not claim the premises by virtue of a patent from the United States, but by virtue of a location made by its predecessors in interest. Now, although the courts of this territory, in determining the title to mining claims where there is a dispute in relation thereto in the land-office, have adopted the forms of action by which title to land is tried, which may be either by the action of ejectment or to quiet title, yet the real question to be determined is, who is entitled to the patent from the United States government to the mining claim in controversy? Or, in other words, who has become the purchaser of the mining claim, and divested the title of the government thereto, by complying with the requirements of the laws of congress relative to acquiring title to mineral lands? The right to the possession of a mining claim comes only from a valid location. Consequently, if there is no location there can be no possession under it. Location does not necessarily follow from possession, but possession from location. A location is not made by taking possession alone, but by marking on the ground, recording, and doing whatever else is required for that purpose by the acts of congress and the local laws and regulations. Belk v. Mengher, 104 U. S. 279. Therefore, when the respondent's claim of ownership and right to the possession were put in issue by the answer, it devolved upon the respondent to show affirmatively upon the trial that it had complied fully with all the requirements of the act of congress, and the local rules and regulations, relative to the location of mining claims; that is, that it had made a valid location.
The above instruction, and others of the same tenor, took away from the jury the question of the validity of the original location made by the predecessors in interest of the respondent, and so far as the pleadings were concerned were clearly erroneous. The answer did properly put in issue the validity of the respondent's location. Were these instructions prejudicial to the appellant?, The record shows that the appellant did not introduce any evidence whatever tending to invalidate the respondent's location. The only evidence introduced by the appellant affecting the respondent's title was simply relative to the question of forfeiture. The uncontradicted evidence introduced by the respondent upon the trial relative to the location was as follows:
"That the boundaries of said claim were clearly marked upon the surface by stakes set at the corners thereof and elsewhere on said boundaries, and that said boundaries could be readily traced; that there was discovered thereon
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a lode of quartz rock, In place, bearing gold and silver; such vein having at least one well-defined wall."
As to the question of citizenship, the oath attached to the certified copy of the location notice of the Garfield lode by one of the locators states that he and his co-locators are citizens of the United States over the age of 21 years. There is nothing in the record indicating that the locators and predecessors in interest of the respondent were not citizens of the United States, or had not declared their intention to become such; and being natural persons they will be presumed to be citizens of the United States until the contrary appears. In Coxe v. Gulick, 10 N. J. Law, 828, referred to in 1 Phil. Ev. 556, FORD, J., held in substance that every man is presumed to be a citizen till the contrary be shown. In People v. Pease, 27 N. Y. 45, which was an action in the nature of a quo warranto to try title to an office, DAVIS, J., says:
"So was that part of the charge correct in relation to the witness Rivinot, who testified that he was born in France and had voted, and there was no evidence tending to show that he had ever been naturalized. The judge in that case charged that the legal presumption was that lie had been naturalized. No suggestion was made or evidence given, when the witness was on the stand, that he had not been naturalized. He had voted, and the presumption was that he had voted legally. It was not for the court to say as matter of law that the vote was illegal."
The citizenship of the respondent is established by the fact that it is a corporation formed under the laws of the state of New York. 'We think that the presumption that the locators and predecessors in interest of the respondent were citizens will protect its title to the property until it is affirmatively made to appear that they were not citizens, or had not declared their intention to become such. The recorded notice of location was, in our opinion, sufficient. The statutes of the United States require that this record should contain three things which are requisite to its validity, viz.: the name or names of the locators, the date of the location, and such a description of the claim or claims located, as by reference to some natural object or permanent monument, as will identify the claim. It is admitted by the appellant that this record does contain the first two requisites, and it is only claimed that it is defective in that it does not refer to some natural object or permanent monument which will identify the claim. It describes the location by metes and bounds as commencing at discovery stake; running 50 feet east to center stake; thence 800 feet north to stake A; thence 1,500 feet west to stake B; thence 600 feet south to stake C; and 1,500 feet east to stake D; and 800 feet north to place of commencement. It then states that "this lode is located about fifteen hundred feet south of 'Vaughn's Little Jennie Mine,' described and located on the fourth of July, 1880." There was no objection made that the notice of location of the Garfield lode was not filed within 20 days from the discovery thereof, as required by the local law. There is nothing in the evidence indicating that
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the Little Jennie mine was not a well-known valid location at the time of the location of the Garfield lode. It will be presumed to be a well-known natural object or permanent monument until the contrary appears. Where a location is described by metes and bounds, as in this notice, and is further described as being 1,500 feet south from a well-known quartz location, and there is nothing in the evidence to contradict such a description, distance, and direction, we think the ground claimed to be sufficiently identified to meet the above requirements of the act of congress. Besides, we have already said, in substance, that we cannot, by merely looking at the notice itself, say, without evidence to the contrary, that the claim is not properly identified. WADE, C. J., in Russell v. Chumasero, 4 Mont. 309; S. C. 1 Pac. Rep. 713.
No objection having been made that the notice, of location of the Garfield lode was not filed within 20 days after the discovery thereof, as required by the local law, such objection, if any, was waived. As will be seen hereafter, the certified copy of the declaratory statement or notice of location under oath of the Garfield lode was properly admitted in evidence. Every requisite, therefore, to a valid location of the Garfield lode was established by the respondent. No evidence was introduced by the appellant tending to invalidate the respondent's location. The only evidence offered by him was in relation to the question of forfeiture, which was upon the ground that the amount of work required by law was not done for the year 1882. The respondent's location was not questioned, and forfeiture was the only issue made upon the trial. The instruction complained of was, therefore, not prejudicial to the appellant. The plea of forfeiture was properly made by the appellant in his answer, and, this being the only issue made upon the trial, the following instruction by the court below was correct, except as to the pleadings, which, as we have said before, was not prejudicial:
"The right of the defendant to recover in this case depends upon the forfeiture, which he alleges took place, of plaintiff's right to the premises by reason of the failure of plaintiff to expend in labor or improvements upon the said Garfield lode the sum of one hundred dollars during the year 1882. The plaintiff being in possession under a location, the validity of which is not questioned, it became the duty of defendants to prove by a clear preponderance of testimony that there was a forfeiture, and unless they have so proved the same to your satisfaction your verdict should be for the plaintiff."
The appellant claims that the court erred in refusing to grant a new trial on the ground of newly-discovered evidence, which was that the witness McDonald, who testified to having done the work constituting the representation of the Garfield lode for 1882, had stated out of court and before the trial, in the presence and hearing of two witnesses, that "he did not perform but two days' work on said Garfield mine for 1882." This newly-discovered evidence could only affect the credibility of the witness McDonald. There is also an affi-
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davit by the witness McDonald contradicting the affidavit of the two witnesses, and asserting that he never made any such statement. This newly-discovered testimony is cumulative. The record shows that the witnesses Orth and Arnold, called by the appellant, testified upon the trial to substantially the same thing as is stated in the affidavits relating to the newly-discovered evidence. It is by no means clear that this newly-discovered evidence would have changed the result of the trial. In Levitsky v. Johnson, 85 Cal. 41, it is said:
"A party is presumed to know, when he is ready for trial upon the main, essential issues involved, and he cannot be allowed a new trial, after having submitted his case upon such testimony as he thought proper to introduce in support of those issues of fact, by a showing that he had subsequently discovered additional pertinent evidence upon the same issue, unless it is clear that such evidence would have changed the result, and that the strictest diligence would not have enabled him to procure the same on the trial."
The granting of a new trial rests in the sound discretion of the court, and in refusing a new trial under the above circumstances we do not think the court abused its discretion. Caruthers v. Pemberton, 1 Mont. 111. It is claimed that the court erred in admitting certified copies of the certificate of incorporation of the respondent, of the declaratory statement under oath of the locators of the Garfield lode, and of the deeds showing title from them and the other predecessors in interest to the respondent. In the case of McKinstry v. Clark, 4 Mont. 370, S. C. 1 Pac. Rep. 759, a question arose as to the admissibility of a certified copy of a declaratory statement; and in the opinion of the court it was said:
"The law requires the discoverer to make and file in the office of the recorder his declaratory statement to be by him recorded. And section 884 of article 4 of the fifth division of the general laws is as follows, to wit: 'Copies of all papers filed in the office of the recorder of deeds, and transcripts from the books of record kept therein, certified by him under the seal of his office, shall be prima facie evidence in all cases.' And section 609, Civil Code: 'There can be no evidence of the contents of a writing other than the writing itself, except in the following cases: * * * Paragraph 4. When the original has been recorded, and a certified copy is made evidence by this Code or other statute.' And in further explanation, the second clause of the fifth subdivision provides that, in the cases mentioned in subdivisions 3 and 4, a copy of the original, or a certified copy, must be produced. Taking all these statutes together, the correct conclusion is that either the one or the other is competent evidence to offer; and it was not error in the court below to admit the certified copy of location notice in evidence without first accounting for the original. The foregoing is also conclusive as to the second specification of error. By reference to the above case it will be seen that the second specification of error was: 'Admitting a certified copy of deed from Ford to Cameron.' The certified copy of the deed was also, therefore, properly admitted."
The above language is also applicable to the certified copies of the certificate of respondent's incorporation. It is objected that the court erred in refusing the appellant
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"From the examination you made of the discovery shaft in 1881, and in June, July, and August, 1882, are you able to state whether you would have known it, if any work bad been done in said shaft?"
The answer to this question would simply have been an opinion by the witness as to whether or not work had been done in the shaft in June, 1882. The witness does not appear to have been a mining expert, and it was only competent to show by him the facts, such as the condition and appearance of the shaft at the respective times stated, and it was for the jury to determine from such facts whether or not work had been done.
The only other objection insisted upon is that the respondent had not filed in the proper office its certificate of incorporation. This question was considered by this court in the case of King v. National M. & Exploring Co., 4 Mont. 1, S. C. 1 Pac. Rep. 727, where it was determined that under sections 46, 47, p. 419, Codified St., "that foreign corporations are * * * not prohibited from doing business in this territory." We are satisfied with that decision, and it is an answer to the above objection.
We see no error in this record that is prejudicial to the appellant. Judgment affirmed.
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