author: HUNT, J.

text:
    SANDERS et al., Appellants, v. NOBLE et al., Respondents.
    [No. 1306.]
    [Submitted January 11, 1899.
    Decided January 31, 1899.]

      Mimes — Location■—Notice—Description—Veins.
    Under Revised Statutes of the United States, Section 2324, requiring a mining location to be distinctly marked on the ground, so that its boundaries can be readily traced, and all records'to contain a description sufficient to identify it; and Political Code, Sections 3610, 3612, requiring the locator to post a notice at the point of discovery, giving the length claimed along the vein each way and its general course as near as may be and within 90 days thereafter to file a declaratory statement giving a 'description of the claim sufficient to identify it — the locator, having posted the notice stating the general course of the vein, may swing his claim in any direction required to include tlie vein, within the 90 days, and this though the notice laid the course to the points .of the compass, no bad faith being shown.

      Appeal from District Court, Jefferson County; M. II. Parker, Judge.

    Action by William H. Sanders and others against D. H. Noble and others. There was a judgment for defendants, and plaintiffs appeal.
    Reversed.

      Lew L. • Callaway, E. B. Howell and E. W. Harney, for Appellants.

      J. S. Shropshire and M. P. Gilchrist, for Respondents.
    The court below did not err in holding that the plaintiffs were bound by the description in their location notice. (Juhiter M. Co. v. Bodie M. Co., 11 Fed. 676; Morr. M. R., 40, 41, 61, 62, 28, 29; 1 Lindley on M., Secs. 344, 330, 371 — 3; Upton v. Larkin, 5 Mont. 600; Horsewell v. Puis, 67 Cal. Ill; North N. Co. v. Orient Go., 1 Fed. 532-3; Mc-Ginnis v. Egbert, 8 Cal. 41; Field v. Grey, 25 Pac. 793; Gleason v. White M. Co., 13 Nev. 462; Mount D. M. Co. v. Collison, 5 Sawy. 449; Hauswirth v. Butcher, 4 Mont. 308; Funk v. Sterrett, 59 Cal. 613; Land Office Ru.es, Copp’s M. L., 231, 276 — 305; 15 Ency. of Law, 527; L. S. M. Co. v. E. M., Etc., Co., 118 U. S. 196; Garfield M. Co. v. Hamer, 6 Mont. 53; Belli v. Meagher, 104 U. S. 279; McEinstry v. Clark, 4 Mont. 395; Noyes v. Black, 4 Mont. 527; Hopkins v. Noyes, 4 Mont. 550; Newbill v. Thurston, 65 Cal. 419.)
    Even if the plaintiffs had made a valid discovery, defendants still contend that they have no right to the ground in controversy by reason of the lack of' a valid location. But they had neither a valid discovery nor location. (A few of the authorities on these points are here cited: 1 Lindley,
    .Sec. 336, pp. 435-40; Van Zandt v. Argentine M. Co., 8 .Fed. 725; Book v. Justice Co., 58 'Fed. 106; Uptowv. Lar

      kin, 5 Mont. 600; Garfield M. Go. v. Hamer, 6 Mont. 53; McKinstry v. Clark, é Mont. 370-395; Noyes v. Black, é Mont. 527.)
   HUNT, J.

Plaintiffs, (appellants here) sued the defendants (who are the respondents) to enjoin certain trespasses upon the Never Sweat Lode Claim, and to enjoin them from asserting title to any portion of said claim, the ownership and possession of which plaintiffs allege to be in themselves. Defendants denied the ownership and possession of plaintiffs, and the validity of the Never Sweat location, set up their own title to the Yukon Lode Claim, and prayed that the same be quieted in themselves. The trial was had before a jury, and testimony was heard on both sides. At the conclusion of the plaintiff’s rebuttal testimony, the defendants moved the court to instruct the jury to find in defendants’ favor. The court granted the motion. Yerdict and judgment were rendered m defendants’ favor. Plaintiffs appeal from the judgment and an order overruling a motion for a new trial!

The ground of the defendants’ motion to direct a verdict was that the plaintiffs had failed to make any proof of a compliance with the statute in respect to disclosing a well-defined crevice at the point of discovery of the Never Sweat claim for the depth of 10 feet. The court, however, did not sustain the motion upon the ground included therein, but held that defendants were entitled to a verdict because the plaintiffs were bound strictly by their location notice, and that, the plaintiffs having infringed upon the defendants’ claim, they must be held to the lines of their location notice, and could not “get off onto some adjoining claimant’s claim;” and that, if they made a mistake, the prejudice lies at their door, and not at the door of the other parties upon whose rights they have inrringed. To make the ruling of the court intelligible, and state the case on its merits, it is necessary to briefly recite what the evidence tended to show:

In August, 1897, W. H. Sanders, Henry Knight and J. W. Knight, three of the plaintiffs, were working and prospecting in the vicinity of the ground in controversy. They were co-owners in the Copper Crown Lode Claim, which lies in a southwesterly direction, and adjacent to the Never Sweat. In a northeasterly direction from the Copper Crown there was an unappropriated triangular tract, approximately 600 by 900 feet. Plaintiffs, after endeavoring to trace float rock, finally succeeded, and followed the same up the hillside, where they commenced to dig, and found what appears to be the apex of the Never Sweat lode. On August 7th they made their discovery. They dug down about 2 feet, and on the surface cut a hole about 2|- by 3 feet, finding in the hole what one of the plaintiffs says was a ledge of quartz, in a northerly and southerly direction, as near as he could tell. This ledge was traced by the float on the surface, but there was no outcropping on either side of the hole. On August 7th, Sanders and Knight, for themselves and the other plaintiffs, posted a notice of location at the point of discovery. It was in the usual form of location notices. It named the quartz claim as the “Never Sweat,” and continued as follows: “Extending along said vein or lode five hundred feet in a southerly direction and one thousand feet in a northerly direction, from the center of the discovery shaft (at which shaft this notice and statement is posted), and three hundred feet on each side from the middle or center of said lode vein at the surface; comprising in all fifteen hundred feet in length along said vein or lode, and six hundred feet in width. ’ ’ Plaintiffs testified that, when they made this discovery, they intended to take the fraction above referred to, and supposed that their claim was running pretty near north and south. After putting up this notice of location of the Never Sweat, plaintiffs left that vicinity entirely, to fulfill a contract elsewhere, and were gone about 30 days. During their absence, the defendants, in August, went upon the ground involved in this controversy, and located the Yukon Mining Claim. One of the locators testified that he found some rich float on August 28th; that they saw the notice which was posted at the Never Sweat, and read it. Desirous of avoiding the locating of any ground unless it was vacant, the defendants started from the location of the Never Sweat, and went due north, determining where due north was by the shadow of the sun about noon of the day they made their location. After measuring due north about 350 feet, they measured 300 feet down the hill, and concluded that they had about reached the side line of the Never Sweat. Then they measured 50 feet more, to allow the Never Sweat locators room “to swing their claim a little; we thought 50 feet was enough.” Then they measured 150 feet from their discovery and located the Yukon claim easterly and westerly. Defendants ran a tunnel to the vein, disclosing the same at a depth of 10 feet or more. They explored and concluded their staking within a period of 30 days after the posting of the Yukon notice. They filed a declaratory statement with the county recorder of Madison county within 90 days, but the date of filing such statement was subsequent to the filing of the plaintiff’s declaratory statement. When the plaintiffs got back to the Never Sweat, the defendants had completed the work of locating the Yukon, and had gone. Plaintiffs sunk a 10-foot shaft, established corner monuments, and recorded their declaratory statement of their location of the Never Sweat, all within 90 days after the posting of their notice as aforesaid. When they staked their claim, they located parallel to the Copper Crown, and included the discovery cut of the Yukon, which was 700 feet from the discovery point of the Never Sweat. The plaintiffs and the defendants had some conversation in relation to the conflicts, but it never resulted in any agreement between them. Plaintiffs also commenced to run a tunnel some 27 feet north of the mouth of the defendants’ tunnel,' .and prosecuted this work until they tapped the vein claimed by defendants as the Yukon, about 12 feet at the head of the defendants’ workings. This work was done after they had staked their claim so as to include the point referred to. Then plaintiffs notified the defendants to keep off the ground; the defendants refused, and both plaintiffs and defendants continued to work until suit was brought. The accompanying diagram illustrates the ground in question.

The respondents contend that there was no sufficient discovery made of any mineral, lode, or vein at the time the Never Sweat was located, and for that reason the Never Sweat location was void. We are advised, however, upon argument in this Court, that the learned Judge of the District Court did not pass upon this question raised by the motion of the respondents. It is here conceded that his decision was based solely upon the right of the locator of a mining claim to swing his claim within the statutory period of 90 days after the date of his discovery and notice thereof, and that he passed upon no other point. Under the circumstances, therefore, we do not feel called upon to positively decide whether the location of the Never Sweat was absolutely void or not, for lack of sufficient discovery. There was considerable testimony of miners and others introduced upon this point by both sides, and, for the purposes of the present appeal, we shall hold that there was enough of a showing made by the plaintiffs to entitle them to stand upon the discovery as a valid one, within the meaning of the statutes of the United States and the State. One of the plaintiffs testified that, in making the location, they dug a hole, and found ledge matter, and a well-defined lead, which averaged from 12 to 18 inches wide; that the quartz was white, such as is found in that vicinity. Other witnesses testified that there was a vein in the shaft of the Never Sweat; that it dipped to the west; that it laid so flat that it only disclosed a hanging wall at the northwest corner of the shaft, and that on the lower side there was afoot wall; that the rock was in place, and that the vein was such as a miner would be willing to follow in the expectation to find ore of commercial value, and that it assayed from $2.40 to $3.20 in different portions thereof. These facts are sufficient to show that the location was made in good faith; and, at least until the District Court shall hold otherwise, we think plaintiffs proved a compliance with the provisions of Section 2320 of the Revised Statutes of the United States, requiring that there be a dis-' covery of a vein or lode within the limits of the claim, before a valid location thereof can be made. (McShane v. Kenkle, 18 Mont. 208, 44 Pac. 979, and authorities therein cited; Shoshone Mining Co. v. Rutter, 31 C. C. A. 224, 87 Fed. 801.)

Passing, then, the question of a sufficient discovery, we address ourselves to the requirements concerning the marking of mining claims so that the boundaries can be readily traced, and to a consideration of the demands of the Federal statutes bearing upon the possessory rights to mining locations.

Section 2324, Rev. St. U. S., provides: “The location must be distinctly marked on the ground so that its boundaries cam, be readily traced. All records of mining claims hereafter made shall contain the name or names of the locator or 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. ’ ’ This statute does not require a description of the claim to be included in the notice of location; nor does the United States demand more than that the claim shall be distinctly marked upon the ground, so that its boundaries can be readily traced. The simple requirements of the laws of the United States have led courts to regard the mining laws as beneficial — to be liberally, not technically construed; to be expounded with as little differentiation as may be between former known actual customs of miners and the formulated expressions of Congress based upon those customs in present positive law. Justice Bach in Upton v. Larkin, 7 Mont. 449, 17 Pac. 728, said:

£ ‘What are the two chief requirements of the statutes as far as the possessory right is concerned? (1) Discovery; (2) the marking of the claim upon the ground so that the boundaries can be readily traced. The first requirement is made for the benefit of the United States, so that the land cannot be acquired under this law until its character is first ascertained to be mineral; the second is made in order that those going upon the ground may know that others have acquired and claim title thereto. Certainly, these steps are very simple; the intricacies are those found by the courts of the states and territories wherein mineral lands are situated. ’ ’

We find certain statutory provisions included in the Codes, consistent, apparently, with the laws of the United States, and supplementary thereto. The portions of the statute pertinent to the case at bar are as follows:

Sec. 3610 (Political Code). “Any person, a citizen, etc., * * * who discovers a vein or lode bearing gold, silver, etc., * * * may locate a claim upon such vein, lode or deposit, by defining the boundaries of the claim in the manner hereinafter described, and by posting a notice of such location at the point of discovery, which notice must contain:
“1. The name of the lode or claim.
‘ ‘2. The name of the locator or locators.
“3. The date of the location.
£ ‘4. If a lode claim, the number of lineal feet claimed in length along the course of the vein each wa'y 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.”

Sec. 3611. “Before the expiration of ninety days from the date of posting such notice upon the claim, the locator or locators must sink a discovery shaft upon the lode or claim to a depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper if necessary to show a well defined crevice or valuable deposit. Its equivalent in work must be done upon placer claims. A cut, a crosscut or a tunnel, which cuts a lode at the depth of ten feet below the surface, or an open cut of at least ten feet in length along the lode from the point where the lode may be in any manner discovered, is equivalent to a discovery shaft. The locator or locators must define the boundaries of his or their claim by marking a tree or rock in place, or by setting a post or stone at each corner or angle of the claim, ’ ’ etc.

Sec. 3612. “Within ninety days of the date of posting the location notice upon the claim, there must be filed in the office of the county clerk of the county in which the lode or' claim is situated, a declaratory statement, which must contain:

“1. The name of the lode or claim.
‘ £2. The name of the locator or locators.
‘ ‘3. The date of location and such description of the location of said claim with reference to some natural object or permanent monument as will identify the claim.
£ £4. If a lode claim, the number of lineal feet claimed in length along the 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 lode or vein as near as may be.
“5. If a placer or mill site claim, the number of acres or superficial feet claimed.
“6. The dimensiens and location of the discovery shaft, or its equivalent, sunk upon lode or placer claims.
‘ ‘7. The location and description of each corner, with the markings thereon.
£ ‘Such declaratory statement must be verified by the oath of the locator, or one of the locators, and in case of a corporation by an officer thereof duly authorized to act. ’ ’

Appellants’ position is that, under these State statutes a claimant has 90 days after posting notice of location within which to define the boundaries of his claim, and that the course of the lead as given in the posted notice is but preliminary, and not binding upon the locator. Respondents, on the other hand, insist that, although a locator has 90 days within which to complete his location, nevertheless the statute does not and could not extend the time within which a locator must marie the ground so that its boundaries can be readily traced, as required by the United States statute — in other words, a distinction is sought to be drawn between the Federal statute as to marking the ground so that the boundaries of the claim can be traced, and the State statute allowing 90 days within which to stake the claim, record the notice, and perfect the location.

Taking up the statutes quoted, it will be seen that to initiate and complete a mining location five acts must be performed:

1. There must be a discovery.
2. There must be a definition of boundaries, as required by Section 3611.
3. There must be a posting of notice at the point of discovery.
4. There must be development within 90 days from the date of posting the.required notice.
5. There must be a declaratory statement filed in the office of the county clerk.

The first essential was performed so far as the case now presents itself; and, it having been complied with by immediately thereafter placing at the point of discovery a notice as required by statute, we believe that, until the expiration of 90 days thereafter, the plaintiffs’ claim was valid and subsisting. All persons were warned of the claim of the Never Sweat lode, and, by the law, prospectors or others going within the limits included within the notice, to locate another claim, were trespassers. Coming after the discovery made, it was an appropriation of the land specified therein; and the two acts — discovery and posting the notice — constituted the origin of a good title to the Never Sweat mining claim. The condition of a continued ownership was development and a definition of boundaries, by marking a tree or rock in place, or by setting a post or stone at each corner or angle of the claim, as set forth in Section 3611, supra.

In the interpretation of statutes substantially like ours, we have the repeated adjudications of both Federal and State Courts, the more important of which we here collate:

In 1874 the Legislature of Colorado enacted that the discoverer. of a lode should have 60 days from the time of the uncovering or disclosing a lode to sink a discovery shaft thereon, and should have three months in which to record his claim by a location certificate; (Mills’ Ann. St. Secs. 3150, 3155.) Our statutes are generally similar to thé earlier laws of Colorado. (Morrison’s Mining Rights, p. 25.)

In Erhardt v. Boaro, (decided in 1881) 8 Fed. 692, the construction of the Colorado statutes came before the Circuit Court of the United States for the District of Colorado. The case there was this: Plaintiffs, while prospecting, discovered mineral, and set up their discovery stake, containing the name of the Hawk Lode, the date of the discovery, the name of the discoverers, and other matters, substantially as required by law. Thirteen days thereafter, the defendants pulled up the stake, threw it away, took possession, went to work in the same hole, and, having sunk the shaft to the required depth, made a location of the claim. The plaintiffs there contended that they were the discoverers of the lode, and that they had 60 days under the law in which to complete the sinking of their prospect shaft and make their formal location. Defendants contended that plaintiffs were not in actual possession between the time they set their stake and the time defendants entered and, furthermore, that the notice upon the discovery stake of plaintiff’s was not sufficient, in that it failed to give the course of the lode. Justice Miller used the following language:

‘ 'The law of the State gives sixty days after making discovery of mineral in which to sink a shaft ten feet in depth. The main object of the sixty days possession, it seems to the ■court, must be to allow time to discover the course of the lode, in order that the location may be made thereon. Counsel for defendants made an ingenious argument to show that the locator during those sixty days, to hold his right, must remain in continuous actual possession of the ground. The ■court does not so hold. If the discoverer put up a stake at the discovery, giving the name of the lode, date of discovery, and notice of his intention to locate the claim, this is equivalent to actual possession. Otherwise, the statute ¡serves no useful purpose. The intention of the statute must be that the setting up of the discovery stake, with the notice thereon, as required, is equivalent to actual possession for the sixty days, within which he may proceed to the next step, to-wit: ■ Sink the discovery shaft to the depth of ten feet, have survey made, mark the lines and make formal location. ’ ’

The Supreme Court of the State of Colorado, in Armstrong v. Lower, 6 Colo. 581, in 1883, used the following language:

“Under the Federal and State statutes, two kinds of possession of mining ground are recognized: First, where the miner, by virtue of work and improvements upon a tract of mineral land and occupancy thereof, holds the same independent of location statutes against one having no better right; .secondly, where, after discovering a vein, the miner undertakes to avail himself of the benefits of the location statutes. The law gives him possession of his entire claim as marked ¡upon the surface for the period of ninety days from the date of discovery, provided he post his discovery notice and, within sixty days next after such date, sink his discovery shaft. Having perfected his location by a full compliance with the requirements of the statutes, his possession of the entire claim remains until he does or omits to do something which, in law, amounts to an abandonment thereof. ’ ’

Erhardt v. Boaro, supra, was determined by the Supreme Court of the United States on appeal (113 U. S. 527, 5 Sup. Ct. 560), in 1885, and the views that had been expressed by Justice Miller from the Circuit Court were affirmed through Justice Field. The Hawk Lode, involved in that case, was-claimed by the following notice, posted at the point of discovery :

£ ‘Hawk Lode.
“We, the undersigned, claim 1500 feet on this mineral-bearing lode, vein or deposit. Dated June 17, 1880.
“Joel B. Erhardt, 4-5ths; Thomas Carroll, l-5th.”

After holding that the notice on the stake, placed at the-point of discovery, contained a sufficient specification or description of the ground claimed by the locators, the Court expressly held that the statute of the United States allows a discoverer to locate a claim upon a lode or vein to the extent of 1500 feet, and that Erhardt’s notice informed all persons subsequently seeking to excavate and open the lode or vein that, the locators claimed all that the law permitted them to take. The notice was regarded as indefinite, simply, however, in not. stating the number of feet claimed on each side of the discovery point, but that as a notice of discovery and original' location, it was sufficient.. The Court goes on to say:

‘ ‘Greater particularity of description of a location of a mining claim on a lode or vein could seldom be given until subsequent excavations have disclosed the course of the latter. These excavations are to be made within sixty days after the discovery. Then the location must be distinctly marked on the ground, so that its boundaries can be readily traced and, within one month thereafter — that is, within three months from the discovery — a certificate of the location must be filed for record in the county in which the lode is situated, containing the designation of the lode, the names of the locators. the date of the location, the number of feet claimed on each side of the center of the discovery shaft, the general course of the lode and such a description of the claim, by reference to some natural object or permanent monument, as will identify it with reasonable certainty. (Rev. St. U. S., Sec. 2321; Gen. Laws Colo., Secs. 1813, 1811.)
‘ ‘But during the intermediate period, from the discovery of the lode or vein and its excavation, a general designation of the claim by notice posted on a stake placed at the point of discovery, such as was posted by Carroll, stating the date of the location, the extent of the ground claimed, the designation of the lode and the names of the locators, will entitle ■them to such possession as will enable them to make the necessary excavations and prepare the proper certificate for record. The statute of Colorado requires that the discoverer before a certificate of location is filed for record shall, in addition to posting the notice mentioned at the point of discovery, sink a shaft upon the lode to the depth of at least, ten feet from the lowest part of such shaft under the surface or deeper if necessary to show a defined crevice, and to mark the surface boundaries of the claim. Before this work could be done by the plaintiff and his co-locator, the ground claimed by them was taken possession of by the defendants; the stake at the point of discovery, upon which the notice was posted, was removed; and Carroll was thereby, and by threats of violence, prevented from re-entering upon the premises and completing the work required to perfect the location and prepare a certificate for record — at least the evidence tended to establish these facts. If they existed — and this was a question for the jury — the plaintiff was entitled to recover possession of the premises. To the extent of seven hundred and fifty feet on the course of the lode on each side from the point of discovery, he and his co-locator were entitled to protection in the possession of their claim. They did not lose their right to perfect their location and perform the necessary work for that purpose, by the wrongful intrusion upon the premises, and by threats of violence if they should attempt to resume possession. As against the defendants, they were entitled to be reinstated into the possession of their claim. They could not be deprived of their inchoate rights by the tortious acts of others; nor could the intruders and trespassers initiate any rights which would defeat those.of the prior discoverers.”

Further on in the opinion it is laid down that, whenever preliminary work is required to 'define and describe the claim located, the first discoverer must be protected in the possession of the claim until sufficient excavations and development can be made so as to disclose whether a vein or deposit of such richness exists as to justify work to extract the metal. “Otherwise, ’ ’ say the Court, “the whole purpose of allowing the free exploration of the public lands for the precious metals would in such cases be defeated and force and violence in the struggle for possession, instead of previous discovery, would determine the rights of claimants. ’ ’ And, as meeting the argument of respondents’ counsel in the case under consideration, that the law§ of the-United States require the excavations necessary to enable the locator to prepare and record a certificate to be made directly after his discovery, the Court certainly held that the Federal laws do not prescribe any time in which such excavations and record shall be made, but say that that is left to the legislation of the State, which in Colorado prescribed at that time 60 days for the excavations upon the vein from the date of discovery, and 30 days afterwards for the preparation of the certificate and filing.

Again, this case of Erhardt v. Boaro refutes that portion of the respondents’ argument wherein it is said that the plaintiffs’ location of the Never Sweat was for speculative purposes, and made without discovery, with a view to profit by the explorations and discoveries of the defendants. Justice Field said that if there is a discovery of the presence of the precious metals in the location, or in such proximity to it as to justify a reasonable belief in their existence, “then protection will be afforded to the locator to make the excavations and prepare the proper certificate for record. ’ ’

In Iron Silver Min. Co. v. Elgin, Mining & Smelting Co., 118 U. S. 196, 6 Sup. Ct. 1177, the Supreme Court considered the Federal statute requiring the location of a claim to be distinctly marked on the ground, so that its boundaries may be readily traced, and used the following language:

‘fSuch location often precedes any extended explorations, and is therefore made without accurate knowledge of the course and direction of the vein. When a vein has been discovered, the rules of miners, and the legislative regulations of mining states and territories, generally allow some specified time for explorations before the location is definitely marked. But miners discovering a lode are sometimes in such haste to locate-their claim, and mark its extent and boundaries on the surface, that they omit to make sufficient explorations to guide them aright in measuring the ground and fixing its end lines. Hence efforts are not infrequently made to change those lines when the true course and direction of the vein are ascertained by subsequent developments. ”

After discussing the difficulty in applying the statutes of the United States providing for the extent of the right of the possession and enjoyment of all the surface included within the lines of mining locations, it was remarked:

‘ ‘The remedy must be found, until the statute is changed, in carefully making the location, and in postponing the marling of its boundaries until explorations can be made to ascertain, as near as possible, the course and direction of the vein. In Colorado the statute allows for this purpose 60 days after notice of the discovery of the lode. Then the location must be distinctly marked on the ground, and 30 days thereafter are given for the preparation of the proper certificate of location to be recorded. (Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560.)”.

This case thoroughly affirms so much of the Erhardt v. Boaro decision as implied the allowance of 60 days given by the State statute for the marking of the boundaries until explorations could be made to ascertain, as near as possible, the course and direction of the vein, before distinctly marking the location on the ground.

In Omar v. Soper (decided in 1888), 11 Colo. 380, 18 Pac. 443, it was said:

‘ ‘To • hold that the miner, as soon as he discovers a lode, must immediately stake the territory which he is entitled to claim thereon, in order to protect it from the invasion and claims of other persons learning of his find, would be an unreasonable, if not an impossible, requirement. An attempt to do so would result, in many cases, in leaving the main portion of the lode outside the staked boundaries. The object of the statute in'giving 60 days for sinking the discovery shaft was evidently to afford the miner time to sink his shaft, and to •ascertain the true course of his lode, when he would be qualified to mark its boundaries on the surface. When the legislative intent is clear, or can be reasonably inferred, it is held to be the duty of the courts to so construe the statute as to render it effective, if possible to do so under the rules of statutory construction. (Simmons v. Powder Works, 7 Colo. 285-289, 3 Pac. 420.) To hold that the claim is protected throughout its whole extent, during this period, from invasion and adverse claims, by a notice which, in addition to the statutory requirements, shall specify the extent of territory claimed along the vein on both sides of the point of discovery, is both reasonable and equitable. It is likewise consistent with the spirit and policy of the statute, and a construction which renders it effective. Such a notice, • properly made and posted, is an appropriation of the territory specified therein for the period of 60 days. It has been repeatedly held that only the unappropriated mineral lands of the United States are open to exploration and location. No one can therefore lawfully enter upon the territory so claimed, during the period named, for the purpose of initiating a claim thereto; and it necessarily and logically follows, from an application of the same rules and principles, that no one, during this period, can stand out-1 side such appropriated territory, and in any manner initiate a claim thereto capable of being rendered valid in the future by the happening of fortuitous circumstances. ’ ’

The statutes of South Dakota (Pol. Code, Comp. Laws Dak. ;Sec 1997 et seq.) require a discoverer of a lode to record his •claim within 60 days from the date of the discovery, by a location certificate containing much the same information required by the laws of Montana, and that before filing such ■certificate the .discoverer shall do certain development work, and post a notice, and mark the surface boundaries. These statutes were construed in Marshall et al. v. H. P. T. M. M. & Manufacturing Co. (decided in 1890) 1 S. D. 350, 47 N. W. 290. As particularly appropriate to the facts of the present •case, we quote from that decision: “The testimony of the plaintiffs shows that they did make the discovery, uncovered .and disclosed the lode, and placed at the point of discovery a notice as required by the statute; and, until the expiration of sixty days, their claim was a valid, subsisting mining claim, by reason of this discovery. The notice posted notified any ■one coming within the limits described by that notice, for the purpose of making another location, that there had been a previous location; and, if they attempted to occupy any portion or all of that ground described within the limits of the notice, they would be trespassers. In all legislation, whether by Congress or the State or Territory, and by'all mining regulations and rules, discovery and appropriation are recognized as the sources of title to mining claims, and development, by working, as the condition of continued ownership, until it is ■obtained. Whenever preliminary work is required to define and describe the claim located, the first discoverer must be protected in the possession of the claim until sufficient excavations and developments can be made so as to disclose whether a vein or deposit of such richness exists as to justify work to ■extract the metal. The notice of plaintiffs of July, 1884, constituted an appropriation of the territory specified for the period of 60 days; and if the location of Coates was a portion of that territory, or all of it, and was made before the 60' days had expired, it was not a valid location, and he could ac- • quire no right by reason of it.”

Prior to these several last referred to decisions, the case of Newbill et al. v. Thurston et al., 65 Cal. 419, 4 Pac. 409, was decided by the Supreme Court of that State in 1884 and, seemingly, took a contrary view to the decisions just referred to. It appeared in that case that Newbill went upon the mining ground there in controversy, posted a notice, and erected a discovery monument. No other marks were made or monuments erected at that time by him, but the notice stated that the locator claimed 20 days within which to mark the boundaries and record the claim. The ground claimed by the notice extended 500 feet southeasterly, and 1,000 feet northerly, from the notice. For the two weeks following March 26, 1881, which was the date of the discovery and notice, New-bill was upon the claim several times, although he went to other mining regions and posted notices there. On April 5th the defendants’ grantors made a location, properly marked, embracing a portion of the ground ‘ ‘indicated, ’ ’ as the Court expresses it, “in the Newbill notice. ” On the 10th or 11th of April, Newbill made an arrangement with his co-plaintiffs, by which they were to complete his location, for their mutual benefit. Notice was accordingly posted on behalf of said plaintiffs, and monuments erected. When suit was brought to recover as much of the one claim as was within the boundaries of the other, the Superior Court found that, from the time of the discovery by Newbill until the marking of the boundaries was finally completed, no unreasonable time elapsed, and that there was no unreasonable delay, or any delay, except such as was necessary and unavoidable. The Supreme Court of California reversed the case, holding that, while the Act of Congress does not state any time within which the location must be completed, yet it says ,the claim must be distinctly marked on the ground, so that its boundaries can be readily traced and that, if a person is not on the ground engaged in marking the boundaries of his claim the subsequent locations are to be regarded as prior in time, and must prevail.

This same ground involved in the Newbill case, later on, in 1893, became the subject of a controversy in the Federal courts and we find the questions involved discussed in Doe v. Waterloo Mining Co., 55 Fed. 11. The case on its facts, as stated by Judge Ross, is very close to the controversy before us. The defendants there saw the notice.that had been posted by' Newbill when they made their location, which took in a part of the ground that would be included by embracing within the boundaries of Newbill’s claim as they had been established for Newbill and others. The court regarded, the question as of “easy solution,” and discussed it as follows:

“Newbill was the first discoverer of the ground in question. True, upon the day. of its discovery — March 26, 1881 —he did not establish monuments around the exterior boundaries of the claim; and those monuments were not marked at the time Warden and Yager located the Mammoth claim, on the 6th of April, 1881. But the notice on the stake placed by Newbill at the point of his discovery notified Warden and Yager, and every one else, that Newbill had located and claimed the vein for 1,000 feet in a northwesterly direction and for 500 feet in a southeasterly direction, from the discovery stake, with 300 feet on each side thereof. A less definite notice was held sufficient to protect the locator against the acts of subsequent locators by the Supreme Court in the -case of Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560.”

In California at that time there appeared to be no mining rules or regulations fixing the time within which locators should establish the exterior boundaries of their claims; but Judge Ross held that locators should be allowed a reasonable time, and that it had not expired when the defendants went upon the ground that had been claimed by Newbill. “They then saw,” continues the Court, “and should have read New-bill’s notice of March 26th, claiming the vein on which it was posted for 1,000 feet northwesterly and 500 feet southeasterly of his discovery monument, together with 300 feet on each side of it, and claiming the reasonable time of twenty days within which to mark the exterior boundaries of his claim. Warden and Yager were thereby apprised that no part of the ground embraced by Newbill’s notice was open to location by them, and their act in including a part of that ground was therefore nugatory.

‘‘Speaking of a similar notice the Court, in the case of Marshall v. Manufacturing Co., (S. D.) 47 N. W. 293, said: ‘The notice posted notified any one coming within the limits described by that notice for the purpose of making another location that there had been a previous location and if they attempted to occupy any portion or all of that ground described within the limits of that notice, they would be trespassers. ’

“It is suggested that the act of Parks, Wallace and Farrell in marking the exterior boundaries, of the Red Jacket claim, on the 12th of April, was unavailing, because one of those corners was established within the boundaries of tbe Mammoth claim, as established by Warden and Yager on the 6th of April. To affirm that position would be to affirm that the perfecting of the right initiated by Newbill on the 26th of March could be arrested and defeated by the illegal and void act of Warden and Yager in embracing within the boundaries of the Mammoth claim ground not at the time subject to location. I think it clear that the defendant, Waterloo Mining Company, is entitled to that portion of the mining ground in dispute that is embraced by both the Red Jacket and Mammoth locations, and that complainant, Doe, has no right thereto nor interest therein. ” .

In 1894 the Supreme Court of Oregon, in Patterson v. Tarbell. 26 Or. 29, 37 Pac. 76, was called upon to pass upon the right to the possession of certain surface ground within the boundaries of the Collateral Quartz Mining Claim, located and owned by plaintiff, and the Palmer Quartz Mining Claim, located and owned by the defendant. Tarbell was prospecting within the limits of the Virtue mining claim, by permission’ of the owner of the latter claim. His object was to trace the new veins if he could, to the adjoining public lands, with a view of locating a claim. He discovered a spur which he traced to its intersection with a gold-bearing vein of quartz upon unoccupied land. From February, when he was prospecting, until April, he continued his work at intervals, for the purpose of determining the course or strike of the lead discovered by him and in so doing sunk several shafts along the course or strike of the lode or vein. About March 10th, and soon after making the discovery, he posted a notice at the first shaft sunk by him and put up some preliminary stakes. He then went away to secure a mineral surveyor; and, during his absence, plaintiff, supposing the ground unoccupied, located the Collateral- claim, posted a notice and marked the boundaries in a manner required by law and embraced the shafts and pits dug by the defendant. The contention of the defendant in that case was that the first discoverer of a lode or vein has a reasonable time after the discovery in which to trace out and determine the direction or course of such vein or lode before locating his claim and in the meantime is protected in his right to 1,500 feet of surface ground in length along the vein or lode and 300 feet on either side; while the plaintiffs contended that, as soon as a discovery is made, the claim must be located, by marking its boundaries on the ground. The Court emphasized the fact that there is no specific time allowed by the laws of Oregon for exploration after a discovery is made, and before a location is required to be definitely marked on the ground; and, in the absence of such legislation, they met the question presented as one to be determined by the mining laws of the United States. It was decided that, in the absence of local legislation allowing some time for exploration, the discoverer of a lode “must immediately locate his claim, by distinctly marking the same on the ground, so that its boundaries can be readily ascertained, in order to hold it against a subsequent valid location peaceably made. ’ ’ Among other things the Court said:

“Requiring the discoverer of a mine to proceed diligently to complete his location, without waiting to trace the course or strike of the vein or lode, may in some instances work an apparent hardship; but until the matter is provided for by some local rule or regulation it is better, whatever the effect may be in particular cases, that the rule should be settled, and thus prevent as far as possible the uncertainty in titles to mining claims, and the strife and litigation among miners, which would necessarily follow if the discoverer is allowed an indefinite time in which to develop his lode or vein, which, in many instances, would require much time and labor and a large expenditure of money. If, during such development or exploration, he is allowed to hold a floating grant to surface ground six hundred by fifteen hundred feet in size, with the right to definitely locate the same as he may subsequently determine, it would create great uncertainty in mining titles, increase litigation, and often defeat the purpose and object of the law, throwing open the mining lands of the country to occupation and purchase. Nor do we find anything in the authorities cited by the defendants in conflict with the rule which we have suggested. The decisions in the cases of Iron Silver Min. Co. v. Elgin Mining & Smelting Co., 118 U. S. 196, 6 Sup. Ct. 1177; and Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, were both made under the law of Colorado, which allows the discoverer a specified time for exploration before marking the boundaries of his claim. ’ ’

This case follows the California rule in Newbill et al. v. Thurston, supra, but it undoubtedly conflicts with the decision of Judge Ross in Doe v. Mining Co., supra, and with Patterson v. Hitchcock, (decided in 1877) 3 Colo. 533, but, so far as it bears upon the case at bar, by implication it affirms the views that, where there is a State law allowing the discoverer a specified time for exploration before marking the boundaries of his claim, he will be protected in his possession until he has complied with the State statute.

The last decision which we have been able to find in point is the appeal of Doe v. Waterloo Mining Co. to the Circuit Court of Appeals (17 C. C. A. 190, 70 Fed. 155). The opinion of the Court is by Judge Knowles, whose opinions upon questions of mining law, as recorded in the earlier Montana Reports, and in later years in the Federal Reports, have always been regarded with very high respect by the profession. After recapitulating the facts connected with the discovery and location by Newbill, as heretofore set forth, the learned Judge goes on to say:

“The first contention is that the location of the Red Jacket gold, silver and nickel mining claim is not a completion of the claim made by Newbill. The Supreme Court of California, upon the same evidence, in the case of Newbill v. Thurston, 65 Cal. 419, 4 Pac. 409, held that it was not. With the highest respect for that distinguished Court, I cannot come to the same conclusion. Newbill undoubtedly made some kind of a mineral discovery on the ground located. He posted a notice on this ground, claiming the right to locate some 1,500 feet on the same — 500 feet in one direction, and 1,000 feet in another, from the point where he posted his notice. He went upon the ground after this, with the view of marking the boundaries of his location, and was prevented by sickness. He made an agreement, for a valuable consideration, with Parks, Wallace and Farrell, by which they were to complete his location. In pursuance of that agrément, they did complete it. That was the contract and intention of all parties. The fact that a new location notice was posted by them on the ground, in which an addition of some descriptive terms was applied to the name given in the location notice of Newbill, cannot make it a new location. The ground was what was sought, not a name. There is no objection to changing the name of a location until after a record is made of the same. There can be no objection to changing the description in a location notice, so other ground is not embraced, up to the date the location notice becomes a record. From necessity, such a fact would often occur in the location of mining ground. A location notice generally does describe the ground located, and not what it is proposed to locate. The notice of Newbill should .have no other force than a notice of discovery. As a notice of discovery and intention to claim and locate the ground described therein, it was certainly sufficient. (Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560; Marshall v. Manufacturing Co. (S. D.) 47 N. W. 293.)”

Judge Knowles also discusses proof of a custom in a particular mining district, allowing a discoverer of a mineral-bearing vein 20 days after his discovery in which to fully bompíete his location of his claim, and says, without qualification, that there is no doubt that the discoverer of a mineral vein-should have a reasonable time after the dicovery of his vein in which to complete his location embracing the same, and further he says: “Wherever there has been any legislation upon the subject, the time given after the discovery in which to complete a mining location has exceeded twenty days. The statute in Colorado is sixty days, and the record thereof must be made within thirty days thereafter. Without consulting what has been considered by rules and regulations or statute law upon the subject as to the time within which after discovery the location of a mining claim should be completed, we would say that what would be a reasonable time for such completion would depend upon the circumstances affecting the ability of the locator to properly define his claim.5 ’

Lindley, in his valuable and highly approved work on mines, discusses the conflicting rulings in the Newbill Case, but approves of the Federal decisions, as according to the spirit of the law as interpreted by the Supreme Courts of Colorado and of the United States. He says: “To hold that the miner, as soon as he discovers a lode, must immediately stake the territory which he is entitled to claim, in order to-protect it from invasion and claims of other persons, would bean unreasonable, if not impossible, requirement.” (Section 339.)

He also lays it down that, where the statutes require preliminary work in order to define and describe the claim located,, the first discoverer “must be protected in the possession of the claim until sufficient excavations and development can be made so as to disclose whether a vein or deposit of such richness exists as to justify the work to extract the metal.” He sums up the logical consequence of the rules established by the case of Erhardt v. Boaro, and the later Federal decisions which have followed that decision, in the following language:

“The effect of this rule is practically to reserve, after the discovery and during the statutory period allowed for perfecting the claim, a surface area circular in form, the radius of which may be the length claimed on the discovered lode, within which area the location may be ultimately made. Such is the manifest intent of the rule. This was the custom under the act of 1866. The miner posted his notice, claiming so many linear feet on the vein; and under the law as then interpreted, prior to fixing the situs of his lode, by filing a diagram for patent purposes, he might follow the vein wheresoever it ran, to the length claimed. When he filed his diagram, and inclosed his lode within surface boundaries, his right to pursue the vein on its course ceased, when it passed out of his surface lines.

“Under the existing state of the law, the location must be marked within a certain period of time, whereupon the locator’ s rights become definitely fixed and confined, except as to the extralateral right, to his marked boundaries. Until this is doné, however, and within the prescribed period, his right to be protected to the extent heretofore stated is well settled. ’ ’ (Section 339.)

The decisions of the Supreme Court of the Territory and of the State rendered prior to the enactment of the statutes which require development work before boundaries are to be defined cannot control the present condition of the law. It is true, we think, that one of the objects in requiring a location to be marked upon the ground is to fix the claim, and to prevent floating or swinging, so that those who are in good faith looking for unoccupied ground may know exactly what has been appropriated; and we thoroughly agree with the principle announced in Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714, that the provisions of the law designed for the attainment of this object are very important, and ought not to be frittered away by construction; but, on the other hand, it is of equal importance that the miner have ample opportunity to perfect his mining location, in order that he may be protected in the full enjoyment of the rights accorded to him by the Federal statutes. And it was for the purpose of affording the full enjoyment of these rights that the State statutes were passed, merely postponing the necessity for definition by marking the boundaries of his claim until he may have full opportunity to ascertain the strike or course of che vein or lode which he has discovered. The law has said that he must do all this within ninety days. Thereafter there can be no floating or swinging. But up to the expiration of that time, under the decisions quoted, we are forced to conclude that, if in good faith, he may use his discovery post as a pivot, and move his lines, at least in the general course of his vein given in his notice, so as to secure the full benefit of his discovery.

The distinction between the notice of discovery or notice of location required to be posted on the claim by Section 3610, and the declaratory statement required to be filed for record by Section 3612, is a substantial one, easily understood when the purpose of each is kept in mind. The notice of discovery should be, and usually is, posted immediately at the discovery hole, and often before the discoverer can possibly survey or even measure his ground. It is often done before even specific bearings are known. It is a simple announcement, and meant only to be a simple notice of a discovery, and of an intention to claim the vein discovered, and, by posting it, the discoverer finds an easy and quick way of announcing his claim. Afterwards, though, when an opportunity is had to follow the vein on its strike, then the boundaries must be marked, and the claim must be described by reference to natural objects or permanent monuments. Then it is, too, but not before, that the evidence of the location must be pre. served, by recording the declaratory statement containing such description of the location with reference to some natural object or permanent monument as will identify the claim.

The notice of location is a protection to the discoverer during the process of location. ‘ ‘The record of a mining claim, ’ ’ says Judge Ross in Gird et al. v. Cal. Oil Co., 60 Fed. 531, ‘ ‘when one is required, is intended to contain a more exact and specific description of the claim than the notice posted upon it.” (Gleeson v. Mining Co., 13 Nev. 465.)

But respondents’ counsel say, even if this be the law generally, yet in this case, plaintiffs having described their localion by their notice as extending along the Never Sweat lode ■claim in a southerly and northerly direction from the center ■of the discovery shaft, they cannot now object to the acts of ■defendants in running the lines of the Never Sweat due north :and due south, so as to allow defendants to perfect a location •of the Yukon claim without the lines of the Never Sweatwhen so run due north and due south. This argument, of course, involves the proposition that the statute which requires a notice to be posted at the point of discovery, in which must be ■contained the general course of the vein or lode ‘ ‘as near as ¡may be, ” demands an accurate description of the course of the vein by the points of the compass. We cannot adopt such ;a construction of the law without frittering away the underlying purpose of the statute to give to the discoverer ninety days in which to define the boundaries of his claim; for, if he ■must accurately state the general course of the vein in his notice posted at the point of his discovery, and at the time thereof, and is to be held to such course literally, the development work that he is required to do to demonstrate whether he has a claim worth further exploitation would be of no avail to him if it should demonstrate that the course of his vein varies even to the slightest extent from the general course given in his ■discovery notice. The statute requires only that he give the general course “as near as may be;” and where, as in this •case, the course is given as southerly and northerly, and it subsequently appears by the surveyor’s plats that the course of the vein is not due north and south, in the absence of proof of .a lack of good faith we hold .that such a notice is sufficient and valid.

In Book v. Justice Mining Co., 58 Fed. 106, a claim was described as beginning at the southwest boundary of the West Justice and lying north of the Ennis mine. It was argued in the Circuit Court of the United States that the locations were invalid because notices were posted that did not correctly describe the lode.. Judge Hawley said:

“In construing notices of this character, where, under the mining rules and local regulations or State laws, such notices are required to be posted upon the ground, the courts are naturally inclined to be exceedingly liberal in their construction. Such notices are often drawn by practical miners, unaccustomed to legal forms and technical phraseology; hence-the language used in the notices is often subject to more or less criticism by counsel learned in the law, and engaged in preparing documents in legal shape and form. Then, again, locations are often made without any accurate knowledge of the true course and directions which a compass would readily give, and mistakes in the notice as to the direction and course of the ground located often occur. But such mistakes do not invalidate the location. Positive exactness in such matters-should never be required. It is the marking of the location by posts and monuments that determines the particular ground located. ’ ’

In that same case the location notice described the claim as extending 1,500 feet in a northerly direction. That was a mistake so far as the direction was concerned, as true north would have carried the line over and across another mine, instead of along the proper line, but the Court said:

“The word ‘northerly,’ under such circumstances, conditions and surroundings, should not be interpreted as meaning due north. It includes and may mean any meridian line or course between a due north and northwest, and is defined and made certain by the posting of the stakes or the building of the monuments at the corner’s of the locations, or along the lines thereof. Such stakes or monuments would control the courses specified in the notice. ’ ’. ( West Granite Mountain Min. Co. v. Granite Mountain Min. Co., 7 Mont. 356, 17 Pac. 547; Gamer v. Glenn, 8 Mont. 379, 20 Pac. 654.)

The respondents’ counsel, in their brief, tell us that the. court was impressed with the bad faith of these plaintiffs; but, there is nothing in the record which informs us that the court, considered that question at all, and we cannot presume that, they acted in other than good faith.

To extend the discussion of these questions would be useless. The law is too well settled to be disturbed at this late;. day, and the only clear deductions which we can make are in harmony with Lindley’s statement, as wre have quoted it. If the locator postpones marking his boundaries, he must be protected until the statutory time given him in which to do the acts required has elapsed; and until he has done what the statutes require, if his notice is valid, and he has a discovery all persons proceeding to enter within the limits of the ground located do so at their peril.

If the questions which we have discussed were res integra, we should be disposed to take a view of the Federal statute (Section 2324) differing from the rule of Erhardt v. Boaro, supra, and to agree with the California and Oregon cases cited, which interpret the law as requiring an immediate marking of the location on the ground, so that the boundaries can be readily traced, or that a possessio pedis be had until they can be so marked within a reasonable time. There is a great deal to be said in support of the argument that Congress never meant to allow the discoverer to stop his work, leave his claim and postpone marking his boundaries for any period of time. The effect of the present construction is to give advantages to the discoverer beyond what the statute seems to fairly contemplate; and yet, if the right to postpone the marking of the boundaries for 90 days exists, there is no escape from the conclusion that the right to swing in good faith during that time goes with it. This is so because the reason for allowing the right to postpone is to definitely ascertain the strike, so that the discoverer may secure the benefit of his location before marking. Therefore where the discoverer gives as he must under the State statute the general course of his vein-in his discovery notice and, notwithstanding those courses, he can postpone marking the ground for 90 days thereafter, so that the boundaries of his claim may be traced, it should necessarily follow that, if the course given in the notice posted is not the true course of the lode as ascertained, he may swing his claim so as to iuelude within his boundaries ground that was not embraced in the notice of discovery, provided it includes the true course of the vein claimed. This right toipostpone thus gives a discoverer a circle to move his claim in •until he marks its boundaries, the radius of the circle being • ordinarily a distance equal to the longest distance claimed from, ‘the point of discovery. This for a time practically withdraws -a large area from the public domain and compels prospectors ■to abide the time when the discoverer of a vein may elect to mark his ground. We doubt if Congress ever intended such -a consequence. The question, however, involves Federal .laws and statutes complementary of Federal laws; so we feel bound by the interpretations of the United States Courts, hence dismiss the subject with the foregoing observations of -our own.

The application of what we have said necessarily leads to the conclusion that the defendants in this case had no right to embrace in the location of the Yukon any of the ground included within the boundaries of the Never Sweat, as the plaintiffs defined said boundaries within the period of 90 days .after their discovery of the Never Sweat.

The judgment is reversed and the cause remanded with di.rections to grant a new trial.

Reversed and rema/nded.

Bjrantly, C. J., and Pigott, J., concur.


source: Caselaw Access Project

author:
BRANTLY, C. J.
      PER CURIAM.

license: Public Domain

text:
    GUIGNON, Respondent, v. FIRST NATIONAL BANK OF HELENA et al., Appellants.
    [No. 1235.]
    [Submitted January 9, 1899.
    Decided February 6, 1899.]

      .Ranks and Banking — Collections — Insolvency — Agency— Debtor and Creditor — Following Trust Funds — Interest.
    ;.l. Where a bank receives a draft, with directions to collect, and notify the owner, and its correspondent collects the fund, the mere crediting of the proceeds to the owner on its books, though it has an open account with him, does not change its relation of agent to that of debtor. Hence, the bank having failed, and the fund having been paid by the correspondent to the receiver, the owner might follow the fund.
    : 2. Where a collection made by a bank’s correspondent and paid to a receiver subsequently appointed for the bank is followed into the receiver’s hands as a trust fund, the owner is not entitled to interest thereon.

      Appeal from District Court, Lewis and Clarke County H. C. Smith, Judge.

    Action by Charles Guignon against the First National Bank, of Helena and another. There was a judgment for plaintiff,., and all parties appeal.
    Affirmed.
    Statement of the case by the Justice delivering the opinion..
    On August 8, 1896, plaintiff deposited with the First National Bank of Helena; Mont, (hereinafter called the “National Bank”) a draft for £400 on the Standard Bank of" South Africa, of London, England, with instructions to col- • lect it, and notify him. At this time, and thereafter until September 4, 1896,' the National Bank was solvent, and doing-a general banking business. Melville, Fickus & Co., bankers,, of London, • England (hereinafter designated as the ‘ ‘London.! bank”), were the correspondents of the National Bank, and each house had current accounts with the other on its books. It was the custom, observed by them, for each bank, upon-making a collection for the other, to credit it, as soon as • made, upon its own books, and notify the other by letter of its action. The other would thereupon charge the collecting-bank with the amount so collected. On August 8th the plaintiff’s draft was forwarded by the National Bank to the-London bank for collection in the usual course. The London-, bank collected the draft on August 21st, and thereupon, on-the same day, notified the National Bank by letter than it had credited the amount. On September 2d this letter was received, and on the same day the National Bank wrote the London bank, approving its action, and notifying it that- the National Bank had charged the amount to the London bank. This charge was made that day. From August 21st until September 3d the two banks continued business as usual, making - drafts upon each other, but the volume of this business does ■ not appear, except as hereinafter stated. From August 22st. to September 4th the National bank did a large volume of general business, foreign and domestic, amounting to from.. :$75,000 to $200,000 and upwards daily. On September 4th the National Bank failed to open its doors. On September 15th the defendant Wilson, in charge of it as examiner, called upon the London bank for the credit on its books in favor of the National Bank. This balance, amounting to £47 5 14s 4d., was paid to Wilson, the receiver, on October 26, 1896. It was larger than, the balance shown by -the books of the National Bank, because two drafts had been drawn by the National .Bank against its London balance three or four days before suspension, and credited on its own books, but had not ■been paid by the London bank. These, together, amounted to $38.60. At the time the National Bank closed its doors it Lad on Land in cash $4,343.72. The National Bank paid plaintiff no part of the amount of the draft, nor has he been paid any part of it by any one. The defendant Wilson was .subsequently made receiver of the National Bank. On August 8th, and thereafter until the National Bank closed its •doors, the plaintiff had an account with it open to check. Demand was made upon Wilson by the plaintiff herein for the amount collected from the London bank, but this demand was ■denied.
    The court below found upon these facts that from and after August 21st until September 4th the London bank had a continuous balance in favor of the National Bank upon its books of more than the amount of plaintiff’s draft; that the relation of principal and agent between plaintiff and defendant bank had never been converted into the relation of debtor and creditor ; that plaintiff had a preferential claim against the funds in the hands of the receiver because of the payment by the London bank into his hands of the balance on its books; and that he was, therefore, entitled to recover from the receiver the sum of $1,928, the full amount of his claim, without interest, because, if interest were allowed, it would be drawn from the general assets of the bank. From this judgment both parties ' appeal.

      Wm. Wallace, Jr., for Appellants.

      It has been uniformly held that when the collection has been rso far completed as that it only remains for the collecting bank to pay over the money to him who left the collection, so ■instanti the relation changes and thenceforward is merely that of debtor and creditor. (Old First National v. GermanAmerioan National, 155 IT. S. 556, 562, foot (39 Co-Op. Ed. 262); Ilallam v. TilUnghast, 52 Pac. R. 329; Sayles v. Cox, 32 S. W. Rep. 626, 627, left foot; 1 Morse on B. and B. 248; 3 Am. and Eng. Ency. Law (2d Ed.), 819.) Respondent is assumed to have assented to the customary mode of making such a collection, i. e. through a correspondent bank. {First Natl. v. Sprague, 51 N. W. Rep. 846, 848; Comn. Natl. v. Armstrong, 148 IT. S. 60, top, (37 Co-Op. 367, right foot.) If he is not deemed to have assented in the custom, then the act of the First National of Helena, in sending the collection to London and having it, when made, passed to its credit, was a mere conversion accomplished August 21, and rendered it on that date liable in damages only, which would be a general, not a preferred claim. (Edson v. Angelí, 25 N. W. Rep. 307, 308; Bank v. Dowd, 38 Eed.- Rep. 172.) This is especially true where respondent’s original instruction was not to collect and credit, but to collect and remit, or pay over and return. (Bank v. Dowd, 38 Eed. Rep. 173.)

      J. M. Clements, for Respondent.
    We can not calmly view the writhings of the author of appellants’ brief in his delirious wrestle with imaginary presumptions; hence we hasten on, to assert respondents’ claim for interest, stopping to say that the decree below is based on principles applied to corresponding facts in the following decisive cases: (Henderson v. O'1 Conor, 106 Cal. 385; Com. Bank of Penn. v. Armstrong, 39 Eed. Rep. 684; Same v. Same, 148 U. S. 50, approved in Evansville Ba/nk v. Ger. - Amer. Bank, 155 U. S. 556, 564.) The court below should have allowed interest on the amount of its decree, $1,928, from the time demand was made on the receiver, to-wit: November 16, 1896, when the right to recover vested. (Anderson
      v. Hulme, 5 Mont. 295, 298; National Bank of Commonwealth v. Mechanics' Nat. Bank, 94 U. S. 437; Chemical Nat. Bank v. Bailey, 5 Federal Cases, 537; Lem v. Nat. Bank of Mo., 5 Dill, 104, 111.) Equity follows the law im such cases. (Crocker v. Clements, 23 Ala. 296, 312.) The-receiver represents, not the government, but the bank, its. stockholders "and creditors. (Case v. Terrell, 11 Wall. 199,, 202.)
   BRANTLY, C. J.

The defendants assign as error that the' facts found will not support the judgment. The plaintiff insists that he should be allowed interest.

It will be seen from the statement of facts that the relations of principal and agent was established between the plaintiff and the National Bank by the transaction between them on-August 8, 1,896. The draft was deposited with directions to-collect and notify plaintiff, and not for credit. Though the-plaintiff at that time had an open account with the bank subject to check, this fact is of no weight in view of the specific directions given by him. Furthermore, the record does not. show that the defendant bank ever gave notice to the plaintiff,, or credited him with the amount of the collection. In oureview of this case, the mere act of crediting the amount to the-plaintiff upon the books of the defendant bank would not, change the relation of the bank to plaintiff from that of agent, to that of debtor until it had actually received the money from the London'bank. The plaintiff could still pursue the funds, in the hands of the latter so long as he could identify them. The title to the draft did not pass to the National Bank. We-conclude also that the fact that its office was that of a mere-collecting agent was communicated to its subagent in London,, because we must presume, in the absence of proof to the contrary, that it obeyed its instructions, and transmitted the draft, for collection as plaintiff’s agent. The subagent bank must, therefore have understood the nature of the transaction upon receipt .of the draft. The right of the plaintiff to have its-claim paid as a preferential one out of th©-. fund- collected by the receiver from the London -bank therefore depends upon whether the facts in the case show that the £400 collected by the London bank so far retained its identity that it is traceable to the hands of the receiver. No money was remitted to the National Bank by the London bank. Therefore the duties of the latter were not fully discharged up to the time the former closed its doors. The London bank could only receive .cash in payment of the draft, and it could only discharge its duty by remitting the cash collected to the National Bank. ( Ward v. Smith, 7 Wall. 452; Levi v. Nat. Bank of Missouri, 5 Dill. 104, Fed. Cas. No. 8,289; First Nat. Bank v. First Nat. Bank, 76 Ind. 561; Henderson v. O'Conor, 106 Cal. 385, 39 Pac. 786; 2 Morse on Banks and Banking, Sec. 568; Evansville Bank v. German-American Bank, 155 U. S. 556, 15 Sup. Ct. 221.)

It is true that if the National Bank had been indebted to the London bank at the time the collection was made, and credit had been given by the latter to the former in settlement of this indebtedness before the former closed its doors, this would have been equivalent to a transmission of the funds to the National Bank. It would also have been a complete conversion of the money. (Bank of Pa. v. Armstrong, 148 U. S. 50, 13 Sup. Ct. 533; Evansville Banke v. German-American Bank, 155 U. S. 556, 15 Sup. Ct. 221; National Exchange Bank of Dallas v. Beal, 50 Fed. 355; 3 Am. and Eng. Ency. Law (2d Ed.) 818.) But this was not the condition of things in this case. The National Bank was not indebted to the London bank at the time of the collection of the draft. It did not become so indebted at any time afterwards. The collection was made on August 21st, and credited. The National Bank received notice on September 2d, and charged the London bank with it. The National Bank closed its doors on September 4th. At this time there was charged to the London bank £475 14s. 4d., or its equivalent in American money, less two drafts, amounting to $38.60, drawn and credited three or four days before that date. On October 26, 1896, the London bank paid the receiver the full amount of this credit, because it had not paid the two drafts. Therefore there must have been a continuous balance upon the books of the London bank from August 21st until it was collected by the receiver of $475 14s. 4d.; for it does not appear that any other draft was drawn by either bank upon the other, or that any collection was made by either and charged or credited after August 21st. It therefore appears that the balance in the hands of the London bank must necessarily have been made up of the amount of the collection upon plaintiff’s draft with other money theretofore collected. The burden rests upon the plaintiff to establish his claim. (Bank v. Austin, 48 Fed. 25; Nonotuck Silk Co. v. Flanders (Wis.), 58 N. W. 383; 5 Thompson on Corporations, Sec. 7104.) In 2 Pomeroy on Equity Jurisprudence, Sec. 1058, the rule is stated:

“No change in the form of the trust property, effected by the trustee, will impede the rights of the beneficial owner to reach it and to compel its transfer, provided it can be identified as a distinct fund, and is not so mingled up with other moneys or property that it can no longer be specifically separated. * * * The existence of a constructive trust, as of a resulting one, must be proved by clear, unequivocal evidence. ’ ’

The facts found by the court below show that the plaintiff had successfully met the obligation cast upon him to show that his property, as a specific fund, passed into the hands of the receiver. The receiver has in his hands the money'thus belonging to the plaintiff.

The court below rendered judgment for the full amount of the sum collected, but allowed no interest. This we think correct. We have no statutory provision strictly applicable to such cases, and we think it inequitable that the assets in the hands of the receiver to which the general creditors must resort should be taken to pay interest on the sum so withheld by the receiver until he could be- advised as to his duty in the premises. The discretion of the lower court was wisely exercised in this particular, and we shall not interfere.

The judgment will therefore be affirmed. Affirmed.

Hunt and Pigott, JJ., concur.

PER CURIAM.

After the foregoing opinion was handed down, the Court, not being fully satisfied as to the conclusion reached touching the question of interest, of its own motion suggested to counsel that an application be made for a rehearing upon this question. The remittitur was ordered withheld pending the action of counsel upon this suggestion. Subsequently the Court was advised that a settlement of the case had been reached, and that no rehearing would be applied for. The conclusions reached will therefore be allowed to stand.


author: PER CURIAM.

text:
    BASIN MINING AND CONCENTRATING CO., Appellant, v. WHITE, Respondent.
    [No. 1024.]
    [Submitted January 26, 1899.
    Decided February 6, 1899.]

      Miming Claim — Location—Survey—Mistake— TI. S. Surveyor.

    One who has located a claim, filed his notice and procured a survey thereof by the United States deputy surveyor, as required by law, cannot be deprived of his property because the surveyor failed by mistake to include all that was covered by his location notice, where the mistake was cured by a resurvey, under the orders of the Interior Department, within a few days after the owner discovered it.
    The surveyor is an official of the United States Government and acts in that capacity and not as the agent or attorney of the owners of mining claims.

      Appeal from District Court, Jefferson Coumty; Framk Showers, Judge.

    Action by the Basin Mining & Concentrating Company against Wallace McC. White. From a judgment for defendant and the denial of a new trial plaintiff appeals.
    Reversed.

      Clayberg, Corbett & Gunn, for Appellant.

      Stapleton & Stapleton, for Respondent.
   PER CURIAM.

Action pursuant to Section 2326 of the Revised Statutes of the United States to determine the right of possession of a mining claim. Defendant (respondent) applied for patent to the “Canon Lode Claim.” Plaintiff (appellant) filed its adverse claim thereto asserting ownership and right of possession by virtue of a prior location under the name of the “Hope Lode Claim.” The answer disclaimed any interest in the Hope except the area in conflict, and averred ownership and right to the possession of the area in controversy under the location of the Canon. The defendant also pleaded abandonment by the plaintiff prior to December 14, 1893, the date of the location of the Canon lode. He further pleaded that in November, 1893, plaintiff caused an official survey of the Hope claim to be made by the Surveyor General of Montana, with a view to applying for patent therefor; that, according to this survey, the Hope claim did not include the Canon claim; and that, relying upon the fact that plaintiff did not claim the area of the Canon lode claim, and believing the ground to be part of the public domain, located the Canon lode claim, and afterwards expended a large amount of money in the development thereof; but that, after defendant had applied for a patent, plaintiff caused an amended survey to be made of the Hope lode claim and included therein the Canon lode. The defendant contends that by reason of these facts the plaintiff is estopped from asserting title to the area in conflict.

Plaintiff, by replication, alleged that in November, 1893, it made application for a survey of the Hope claim, and directed' the same to be surveyed as located; that the survey was made under the direction of the Surveyor General of Montana and that the deputy mineral surveyor making the survey was not plaintiff’s agent; that by mistake the deputy excluded from the Hope survey the ground in controversy, and without the plaintiff’s knowledge or consent; that, as soon as such mistake was discovered, an application was made for an amended survey, so as to include the ground omitted; that an order for an amended survey was issued and an amended survey made which included the ground in conflict; and that the application for a patent to the Hope claim was based upon this amended survey.

The case was tried before a jury, and special findings returned, together with a general verdict. The verdict was for the defendant. The jury found that the area in controversy was omitted from the official survey of the Hope by mistake, and that the plaintiff intended to abandon the area in dispute. Other findings were made favorable to the defendant. The court adopted the general verdict of the jury and all of the special findings, except that relating to abandonment, upon which issue the court found that plaintiff did not intend to abandon the area in conflict. The court found also that plaintiff was estopped from claiming the ground in dispute, and that defendant was the owner and entitled to the possession thereof.

Plaintiff’s motion for a new trial was overruled, and an appeal taken to this Court.

It is conceded that the ground included in the Canon location as made by respondent on December 14, 1893, was included in the boundaries of the Hope lode claim as described in the recorded notice of location of the Hope, a certified copy of which record was on file with the Surveyor General, and delivered to the United States deputy mineral surveyor, on October 9, 1893, when he was ordered to make an official survey of the Hope. The deputy mineral surveyor had no instructions other than his order of survey, which directed him to survey the claim in strict conformity with existing laws and. official regulations and instructions thereunder. The superintendent of the Hope told him they wanted all the ground they could get, but did not direct him what to include. When the survey was made, the surveyor threw one end of his survey as far easterly as he could, leaving out a fraction of the Hope ground as located. Acting also upon certain in.formation which he had obtained to the effect that an application for patent had been made for certain adjacent ground as the Lotta claim, the surveyor made his lines conform to the lines of such adjacent claim. His object in doing so he said was to simplify his notes and make no conflicts. He used a plat furnished by the Surveyor General, which showed an adjacent claim, but did not show the original Hope location, and he presumed the fraction appearing thereon was patented with the Lotta, the adjacent claim. The surveyor was several weeks engaged in his work. Notices were posted on the claim December 18, 1893. A week or ten days subsequent to the completion of it he discovered that the fraction last referred to had not been claimed in the patent for the Lotta, and that it was inside of the original location of the Hope, as shown on the official plat as filed. Thereupon he notified the Hope people of his error by telling them of his omission to include all the unclaimed ground. They said they wished all the ground, and would take steps to have a resurvey made. Accordingly they did so, and on January 18, 1894, a resurvey was ordered by the Surveyor General in obedience to telegraphic orders from the Interior Department at W ashington. This resurvey was made at once and embraced the area of the Canon as included in the original Hope location.

It seems to us so clear that a bona fide mistake was made by the United States surveyor that any discussion of the merits of the case is unnecessary. There can be no serious contention to the contrary under the evidence. The surveyor was an official of the United States Government, and acted in that capacity and not as the agent or attorney of the Hope lode claimants. His function and orders were to survey the Hope lode claim. He had to determine the situs and boundaries thereof from the certified copy of the location notice, and from an examination of the ground and the markings on the surface. He followed certain misinformation, instead of the location notice and by doing so left part of the Hope ground out. Respondent now asks us to deprive plaintiff of its property because of this error of the surveyor — not the fault of the plaintiff at all — and to do this despite the fact that, as soon as the mistake was known, all possible means and expedition were used by plaintiff to rectify it so as to preserve to plaintiff its claim as the same had been located and as it should have been surveyed by the surveyor. We decline to lend the j udgment of the Court to any such result.

The evidence not only positively disproves any abandonment by the plaintiff of the ground in question, but it shows every intent and wish to retain it, and we know of no principle of law by which the owner of a mining claim seeking a patent can be deprived of his property because of an error by a United States surveyor in the survey, which the owner in good faith takes steps to cure, and does cure, by permission of the Interior Department within a few days after his discovery of its existence. Respondent was a trespasser when he went on the ground included within the limits of the Hope and by no act of the appellant has he ever acquired any other attitude against it.

Reversed and remanded for a new trial.