Ford v. Campbell

By the Court, Norcross, J.:

This is an appeal from the judgment and from an order denying defendants’ motion for a new trial.

The action was brought for the recovery of the possession of a certain mining claim in Bullfrog Mining'District, Nye County, called the "Ella May No. 1,” and for damages for the withholding thereof. The complaint alleges that the plaintiffs were on the 13th day of April, 1905, the owners of, in the possession of, and entitled to the possession, and are now such owners and entitled to the possession, of the said claim, particularly describing it; that, the plaintiffs being so possessed, the defendants on the 13th day of April, 1905, *583 without right, entered into the possession of the demanded premises and ousted the plaintiffs, and now unlawfully withhold the possession thereof from the plaintiffs, to their damage in the sum of $25,000.

The answer denied the allegations of the complaint and alleged: "That defendants on the 13th day of April, 1905, were, ever since have been, and now are, the owners, subject to the paramount title of th'e United States, in possession and entitled to the possession, of the real estate or, mining ground mentioned and described in the complaint, by location thereof on the 13th day of April, 1905, as a lode mining claim under and by virtue of, and in full compliance with and in conformity to, the laws of the United States and of the State of Nevada, relative to mineral locations made on, and the acquisition of, the public domain of the United States; that whatever right, if any was ever acquired by plaintiffs in and to the real estate or mining ground mentioned and described in the complaint, was by the location thereof as a lode mining claim on the 10th day of September, 1904, naming and designating the same the 'Ella May Lode Mining Claim,’ but no discovery shaft, cut, crosscut, tunnel, or open cut was in manner and form as provided by law, or at all, sunk, run, or opened upon said mining claim and location, and said claim and location were abandoned by plaintiffs, and said real estate or mining ground by them on the 13th day of December, 1904, relocated as the Ella May No. 1 lode mining claim, but the boundaries thereof were not in any manner, or at all, marked, defined, or designated, and the location of said ground so standing when the defendants located the same as aforesaid.” With the issues thus made by the pleadings, the parties went to trial.

The proofs showed that on the 10th day of September, 1904, the plaintiffs posted a location notice upon the ground in question designating the claim as the "Ella May.” Subsequently, and within the time allowed by law, they monumented and marked the boundaries of the claim, and performed their location work as they then supposed within the limits of their said claim, after which, on or about the 7th day of December, 1904, they filed a certificate of their *584 location with the district mining recorder and with the county-recorder. On or about the 13th day of December, 1904, the plaintiffs had their claim surveyed, and then discovered that a portion thereof overlapped a prior existing claim, and that this overlapping area included their location cut. They then moved their two south-end monuments so as to exclude the conflicting area, and posted a notice on their location cut to the effect that they abandoned such location work. Upon the advice of the surveyor, the plaintiffs, without removing the first notice of location, posted an additional location notice in the location monument reading as follows:

"Notice of Relocation. Notice is'hereby given that the undersigned hereby locate and claim the following-described piece of mineral bearing ground as a lode claim: From this discovery monument 410 feet in S. 3° 10' west direction and 750 feet in a N. 23° E. and 300 feet on each side of the middle of the vein. The south end-line is identical with the north end-line of the Pearlie lode claim and the Little Jim lode claim laps this claim on the west side. The general course of the vein or ledge is S. 3° 10' W. and N. 23° E., and the size of the claim is 1160 feet long by 600 feet wide, this claim shall be known as the Ella May No. 1. Situate in Bullfrog Mining District, Nye County, Nevada. Relocated this 13th day of December, 1904. This claim is marked at each corner and on each side-line center by a mound of rock and a rock chiseled with description of corner and is relocated to better describe the locus of said claim. Locators: J. G. Ford, J. H. Ford, J. T. Wheeler, O. R. Ford. Location work consists of cut about 250 feet N. E. of this monument, work equal to 240 cu. feet. Same recorded.” Plaintiffs then excavated a new discovery cut within the boundaries of their claim as modified. On March 31,1905, plaintiffs filed with the county recorder, but not with the district recorder, another or additional location certificate.

On the 13th day of April, 1905, the defendants, appellants herein, entered upon the ground in question, and posted a location notice thereon reading as follows: "Notice of Location. The undersigned hereby give notice that we have located a claim on a lode or vein. (1) The name of said loca *585 tion or claim is the Winifred. (2) The name of the locators is as follows, to wit: William Campbell, three-fourths, Add Rickard, one-fourth. (3) The claim was located on April 13,1905. (4) Number of lineal feet claimed in length along course of the vein each way from, the point of discovery, with the width on each side of the center of the vein, and the general course of the vein or lode as near as may be is as follows, to wit-- Situated in the Bullfrog Mining District, County of Nye, State of Nevada, commencing at the discovery monument and running 1,100 feet north and 400 feet south from the monument, together with 300 feet on each side of the center of the vein. This ground was formerly held by J. H. Ford, Wheeler, and others, and known as Ella May No. 1, but they, not having complied with the law, have forfeited their rights to said claim. -This claim is 1,500 feet long and 600 feet wide, and is about 1,200 or 1,400 feet west of the Denver lode. Witness our hands this 13th day of April, 1905. [Signed] William Campbell, %ths, Add Rickard, %th. Witness: E. M. Swan.”

They subsequently monumented and marked the boundaries of their said claim, sunk a discovery shaft, and filed a certificate of location with the district and county recorder, within the time required by law for such acts to be performed. It appears both from defendants’ answer and their notice of location that defendants recognized that the plaintiffs had initiated a valid location of the claim in controversy, but contend that whatever rights plaintiffs had to the mining ground had been forfeited for noneompliance with the law before the defendants made their entry and location.

To support the position of appellants, the principal contention made is that the plaintiffs and respondents never made a valid record of their claim, and that such record is an essential part of a valid location. Section 3 of "An act relating to the location, relocation, manner of recording lode and placer claims, mill sites, tunnel rights, amount of work necessary to hold possession of mining claims and the right of coowners therein” (Comp. Laws, p. 43, sec. 210): "Within ninety days of the date of posting the location notice upon the claim the locator shall record his claim with the mining *586 district recorder and the county recorder of the mining district or county in which such claim is situated by a location certificate which must contain: 1st, the name of the lode or vein; 2d, the name of the locator or locators; 3d, the date of the location and such description of the location of said claim, with reference to some natural object or permanent monument, as will identify the claim; 4th, the number of linear feet claimed in length along the course of the vein each way from the point of discovery, with a width on each side of the center of the vein, and the general course of the lode or vein as near as may be; 5th, the dimensions and location of the discovery shaft, or its equivalent, sunk upon the claim; 6th, the location and description of each corner, with the markings thereon. Any record of the location of a lode mining claim which Shall not contain all the requirements named in this section shall be void. * * * And any such record, or a copy thereof, duly verified by a mining recorder or duly certified by a county recorder shall be prima facie evidence of the facts therein stated.”

The contention of counsel for appellants is well taken, that where there is a district recorder, whose place of business is publicly known, to make a valid record, it is essential to record the certificate of location of a mining claim within such district with the district recorder, as well as with the county recorder. Section 25 of the act heretofore mentioned reads as follows: "Where there is no mining district, or where a district having once existed the residence of the officers within the district and their places of business within the district where the books are kept are not publicly known, district recording shall not be required of the locator or claim owner. But recording shall be required in the office of the county recorder in all eases; as well where there is a district recorder as where there is none.” (Comp. Laws, 232.) This section, construed in connection with section 3, heretofore quoted, shows, we think, clearly that it was the legislative intention to require recording of certificates of location with the county recorder in all cases, and, in addition, with the district recorder in cases where the office of such recorder within the district where *587 the books are kept is publicly' known. In order for a locator to avail himself of the benefits given to him by statute by recording a certificate of location, such recordation must be with both the district and county recorder, where the office of the district recorder is publicly known, and, where there is no such district recorder, recording with the county recorder alone is sufficient. . In the case at bar it is shown that there was a district mining recorder within the district where plaintiffs’ claim was situated, and that the second certificate of location filed by respondents was not recorded with the district recorder.

It is further contended that neither of said certificates are sufficient in form, for the reason neither contains a description of the location of the claim with reference to some natural object or permanent monument as will identify the claim as is required by subdivision 3 of section 3, supra. The description given in both certificates is substantially the same, and is as follows: "Said claim is situated'about two miles from the Town of Amargosa.” No direction is given, and the claim might be anywhere within an area of from six to eight square miles, and still answer to the description given. We think.it needs no argument to convince the mind that such a description is not a substantial compliance with the requirements of the statute, even though the courts are very liberal in such matters, and ordinarily it is a question of fact for the jury to determine. (Brady v. Husby, 21 Nev. 453 , 33 Pac. 801 .) So far as the certificates of location in question in this case are concerned, plaintiffs are in no better position than if no certificate or certificates had been made or filed.

This leads to an inquiry into the proposition most strenuously contended for by appellants’ counsel — that under the mining laws of this state recordation in the manner prescribed .by law is necessary to perfect a valid location; in other words, that it is an essential part of the location itself. In this contention we cannot agree. The recording of a mining claim by the laws of Congress is not made an essential requisite to a valid location. (Haus v. Victoria Copper Co., 160 U. S. 303 , 16 Sup. Ct. 282, 40 L. Ed. 436 ; Brady v. *588 Husby, 21 Nev. 453 , 33 Pac. 801 ; Poujade v. Ryan, 21 Nev. 449 , 33 Pac. 659 ; Southern Gross M. Co. v. Europa M. Co., 15 Nev. 383 ; Gleeson v. Mining Co., 13 Nev. 442 ; 1 Lindley on Mines, 2d ed. 273.) If it is a necessary step to perfect a valid location, and a failure to make a valid record works a forfeiture of prior existing rights, such legislation must be found clearly expressed in our state statute.

Section 24 of the mining act of this state reads as follows: "Certificates of location and of labor and improvements necessary to hold claims need not' be sworn to, and are not required to be in any specified form, nor to state facts in any specific order; but must .truly state the required facts.” (Comp. Laws, 231.) Counsel for appellants urges that the words in this section " necessary to hold claims ” refer to the words "certificates of location.” We think the legislature intended them to refer alone to the words "labor and improvements.” The labor and improvements mentioned in this section refer, we think, to the provisions of the federal statute requiring the expenditure of $100 a year annually in labor or improvements in order to hold a mining claim prior to the issuance of patent. Sections 24 and 25 were not originally a part of the general mining act passed by the legislature of 1897, but were added to the act by an act amendatory of and supplemental to the original act passed by the legislature of 1899. Section 10 of the original act (Comp. Laws, 217) required certificates of labor or improvements "required by law to be annually performed or made upon any mining claim” to be in the form of an affidavit. This requirement, among other things, is obviated by the provisions of the added section 24. The construction we have placed on this section is further borne out by the language of section 9 of the act, which, in part, reads: "The amount of work done or improvements made during each year to hold possession of a mining claim shall be that prescribed by the laws of the United States, to wit: One hundred dollars annually. * * *” (Comp. Laws, 216.) By referring to the title of the mining act, heretofore quoted, it will be observed that one branch of the legislation covered by the statute is the location, another is the relocation, and another is the manner of recording *589 lode and placer claims, mill sites, etc. If tbe contention of counsel for appellants is correct, the words "manner of recording” are mere surplusage and are fully covered by the words location and relocation.

Counsel for appellants contends that the words " shall record his claim” used in section 3 above quoted shows that the legislature intended recording to be an essential step in perfecting a valid location. Similar language is used in section 14 (Comp. Laws, 221) of the same act relative to the certificate of location of a placer claim; in section 17 '(Comp. Laws, 224) relative to the location of a mill site, and in section 21 (Comp. Laws, 228) relative to the location of a tunnel right. In all these various sections is the-provision that, if the certificate as recorded does not contain all the requirements named, such record shall be void. If the legislature had intended that the location shall be void if the record was not made as required by the particular section of the statute, it would have been very easy for it to have said so. Upon the contrary, it has said, not once, but repeatedly, that such record shall be void. The statute provides that these records when properly made are prima facie evidence of the recitals therein contained.' Where such records are not made and filed in the manner required by law, they are declared to be void, and hence they cannot be used to establish prima facie the facts which they recite. If a certificate of a mining location was filed which conformed in every particular to the requirements of the statute, with the exception that it failed to set forth the location of the discovery shaft,, the certificate would, under appellants’ counsel’s contention, not only be void as a record* but the whole location would be void, unless the record was corrected before an intervening location was made. If this contention were correct, then, the legislature has, in effect, prescribed that a mere oversight in omitting something required in the record is sufficient to work a forfeiture of valuable mining rights. Such intention we think ought not to be imputed to the legislature, except upon the very clearest language, not susceptible to any other reasonable construction.

Commenting on the same provision of our statute, Judge *590 Hawley, in the ease of Zerres v. Vanina (C. C.), 134 Fed. 618 , said: "The statute under consideration, while designed to give constructive notice to prospectors of ground claimed by the locators, was also intended for the benefit of the miners making location upon the public domain. It gives •to the locator ninety days to record his certificate of location after posting his notice of location, tells him what it shall contain, and declares that, if it does not contain what is required, the 'record’ shall be void. It does not say that, if the record is not made, his rights to the claim shall be forfeited. It is important for him to make the record, to record his certificate of location within the time required, and see to it that it contains all of the six requirements stated in section 210. Why? Because, as therein stated, ' any such record or a copy thereof * * * shall be prima facie evidence of the facts therein stated.’ But, if he fails to record his claim, it was not intended that he should be deprived of all his rights to the mining ground j provided he had substantially complied with all the other requirements of the mining laws. The record of the location is the inception of what may be called the paper title. It does not of itself constitute title, nor the possessory right to the mining ground to which it relates. * * * Suppose the certificate of location had been filed within the time specified, and that it literally complied with all the requirements provided in the statute, but in reality that the statements therein made were'false.’ Such a record would not make the pos-sessory title good. The subsequent locator, notwithstanding the fact that a perfect record had been made, would not be estopped from showing that it was false. If no record at all is made until after a subsequent locator claims a right to the ground, should not the original locator be allowed to prove, if he can, that he had in all other respects fully complied with all the requirements of the law? If he fails to properly record his certificate of location, he may be deprived of the benefits given by law, which would enable him more easily to prove and make out a prima facie case. But it was not the intention of the lawmakers to deprive him of otherwise proving that he had performed the essential acts necessary to give *591 him the right of possession to the ground.” (Last Chance M. Co. v. Bunker Hill S. M. Co., 131 Fed. 579 , 66 C.C.A.299.)

It appears from the transcript that the plaintiffs rely upon proof independent of any recorded certificate to establish a valid location of the Ella May No. 1 claim. It is contended by appellants that the proofs show that the plaintiffs abandoned their first location of the Ella May claim, and relocated it as an abandoned mining claim, and that they failed to comply with the requirements of law in reference to the location of abandoned mining claims. The trial court found that it was not the intention of the plaintiffs to abandon their rights, whatever they were, under their prior location; and we think the evidence and circumstances of the case justify this finding. When plaintiffs discovered by the survey that their location work was upon a prior existing claim, they posted a notice that they abandoned such work. This of itself evidenced an intention not to abandon any rights they might still have in their location beyond the area in conflict. They did not remove their first notice' from the location monument, and the so-called "notice of relocation” in terms stated the purpose for which it was posted, to wit: "This claim * * * is relocated to better describe the locus of said lode claim.” It may be that the plaintiffs did not adopt the best course in the premises, or use the most explicit language, but is quite certain that they were acting in good faith, and that no intervening rights were prejudiced. (Lockhart v Johnson, 181 U. S. 516, 526 , 21 Sup. Ct. 665, 45 L. Ed. 979 ; Lindley on Mines, 2d ed. 330.)

Appellants contend that there is no sufficient showing of a discovery upon the Ella May claim; that the location work is insufficient in amount and does not disclose a lode or vein of mineral in place; and, further, that the markings of the boundaries are insufficient. As to the question of discovery, even if that question were not taken out of the case by the pleadings as we think it is (1 Lindley on Mines, 2d ed. 404), the most that can be said is that there is a substantial conflict in the evidence upon this question, and, where such is the case, this court has repeatedly held that it will not disturb the finding of the trial court. The same may also, we *592 think, be said with regard to the location ent. The contention with regard to the sufficiency of the monuments and markings thereon is based entirely upon the assumption that the Ella May No. 1 claim was located as an abandoned mining claim, and that the prescribed method of monumenting and marking such abandoned claim was not complied with. This question has already been disposed of.

Other alleged errors are assigned in the transcript, but the views we have already expressed regarding this case make it unnecessary to refer to them.

For the reason given, the judgment and order of the trial court are affirmed.