text:
    COTTER, Respondent, v. GRAND LODGE A. O. U. W. OF MONTANA, Appellant.
    [No. 1157.]
    [Submitted April 28, 1899.
    Decided June 26, 1899.]

      Mutual Benefit Associations — Constitution a/nd By-Laws— Contracts — ■ Ousting Jurisdiction of Courts— Validity— Construction — Mandamus.

      1. Civil Code 1895, Section 2245, making void provisions of contracts by which the jurisdiction of courts over controversies thereunder is ousted, does not apply to contracts made before its adoption.
    2. The common law doctrine, that a provision in an ordinary contract requiring all differences between the parties touching their rights and liabilities thereunder to be submitted to arbiters, whose decision shall be conclusive and final, will not be allowed to bar the litigation of such differences in the courts, is an anomaly, and inconsistent with the right freely to contract, and its operation should not be extended by construction, nor should it ever be invoked to nullify or impair contractual provisions not clearly infected with the supposed evils intended to be cured or prevented.
    8. Semble: Members of, and those claiming benefits from, mutual benefit societies are bound, in the absence of fraud or palpable error, to seek redress of their grievances in the mode prescribed by the society, wherein vests the sole jurisdiction to right their wrongs, and are precluded from resort to the courts.
    4. The laws of a voluntary mutual benefit society required a claimant, whenever any claim under a beneficiary certificate shall be rejected by its grand master and finance committee, before any other proceedings shall be had thereunder, to demand a hearing and offer to submit his claim to its board of arbitration, and if dissatisfied with the conclusions of said board, he must, by appeal, submit 1ns claim to the grand lodge, and if dissatisfied with the action of the grand lodge, he must, by appeal, submit his claim to the supreme lodge, and without such submission and appeal said claimant shall be estopped by virtue thereof from maintaining any suit or action upon such claim.
    - Held: That such provisions are valid and enforceable so far as they require, as a condition precedent to the bringing of an action at law to recover a money judgment upon a death claim, an exhaustion of the prescribed, remedies within the order.
    5. The constitution and by-laws of a mutual benefit society are binding on the beneficiary of a deceased member.
    6. The laws of a mutual benefit society provided, that when a death claim “shall be rejected by the grand master workman a/nd finance committee of this grand lodge” the claimant must, before taldng any other proceeding, demand a hearing, and submit his claim for .the consideration of the board of arbitration. Held, that, in view of other provisions of the law referred to in the opinion, the copulative “and” between “grand master workman” and “finance committee” should be read as if it were the disjunctive “or,” and that a rejection of a claim by either the grand master workman or by the finance committee is effectual, and that the grand master workman has nothing whatever to do in the matter of approving or disapproving a death claim when the finance committee has rejected it; it is only when the finance committee approves a claim that the power to reject is confided to the8grand master workman.

      Semble: The duty of the finance committee to act, upon the claim, was a ministerial one, the performance of which, if refused or unreasonably delayed, could be compelled by mandamui,.

    7. The finance committee of the state lodge of a mutual benefit society reported, in writing, on a claim submitted to it, that the records showed a prior suspension of the member in question, and there was no report from the subordinate lodge as to his standing since then, and therefore there was nothing before the committee on which it could act. The committee then orally rejected the claim, and the written report of the committee, together with the fact that it had rejected the claim, was communicated to the subordinate lodge which had presented the claim to the state organization. Held, a rejection of the claim, within a by-law of the society requiring such claim, on its rejection, to be submitted to arbitration.

      Mr. J. W. Kmsley and Mr. Massena Bullard, for Appellants.

      Messrs. Howell da Harney, for Respondent.
    Courts will not allow contracting parties to oust the” jurisdiction of the courts as to any controversies that may arise. (Randall v. American Fire Ins. Go., 10 Mont. 353; Kumle v. Grand Lodge A. O. If. W., 110 Cal. 204, 42 Pac. R. 634; Ba/niher v. Grand Lodge A. O.U.W., 37 Pac. R. 245; Insurance Go. v. Morse, 20 Wall. 451; Kinney v. Baltimore da Ohio Employees Association, 15 L. R. A. 142, and cases cited.)
    Even those authorities that hold that benefit societies such as the defendant order are in a different category from ordinary mutual life insurance companies, and that provisions in the laws of such societies for the arbitration of claims of members or beneficiaries should first be followed by the person seeking relief before resorting to the courts, nevertheless say that where such provisions seek to make the decisions of the tribunals of the order final and to preclude the member or beneficiary from subsequently resorting to the courts (as in the present case), they are void as against public policy and may be disregarded. (Niblack on Benefit Societies, Sec. 317, 317a; Stephenson v. Insurance Co., 52 Me. 70; Roxbury Lodge Wo. 18h, I- O. O. F., v. Ilocking, 38 Atl. R. 693; Reed, v. Washington Ins. Co., 138 Mass. 572.)
    .When plaintiff’s claim was submitted to the finance committee, i( found that there was nothing before it on which it could act. Plaintiff was told as plainly as possible that she had no standing before the tribunals, of defendant order. The answer of defendant virtually asserts the same thing, and yet maintains that she should have sought relief from these tribunals instead of resorting to the civil courts. Such an unjust attitude and procedure on the part of defendant order would in any case justify a member in at once resorting to the courts. (Niblack on Ben. Soc., Sec. 314; Savage v. Phoenix Ins. Co., 12 Mont. 468.)
    Granting for the purposes of this brief, that the laws of the defendant order are binding upon plaintiff, yet it will be seen that defendant never gave her any opportunity for such arbitration. The constitution of defendant provides that arbitration may be demanded by a beneficiary after a claim is rejected by the grand master workman and finance committee of the grand lodge.
    It will be seen from the entry in the records of defendant order, that plaintiff’s claim was never, in fact, rejected, but the finance committee merely refused to act, and this provision of the constitution purports to be one of forfeiture, and must be strictly construed.
    ‘ ‘As in all other cases, forfeiture of insurance provided in mutual benefit associations is not favored by the courts. They, in construing the conditions of membership, when a forfeiture is claimed, will preserve, if possible, the equitable rights of the holder of the certificate of membership. (ModernWoodmen of America v. Jameson, 48 Kan. 718, 30 Pac. 460; Elliott v. Grand Lodge, 47 Pac. 1009; Niblack on Ben. Socs., Sec. 315.)

      The same section of defendant’s constitution provides that the defendant order, by its grand master workman, may demand this arbitration. No demand for arbitration was ever made by defendant; they simply refused to act, and arbitratration was thereby waived. (Spoeri v. Massachusetts Mat. Life Ins. Co., 39 Fed. 752.)
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

This was an action brought to recover §2,000, the amount of a beneficiary certificate issued by the defendant to one Daniel P. Cotter, and payable, in the event of his dying while a member in good standing of the defendant, to his daughter, the plaintiff. Trial was had by jury, who found for plaintiff. From an order denying its motion for a new trial, defendant appeals.

Some thirty-seven errors are specified as having been committed by the district court. Of the many questions presented, a detesmination of those relating to one issue will suffice to dispose of the appeal. Questions touching the legal capacity of the defendant to be sued, the admission of Daniel P. Cotter to the Ancient Order of United Workmen, his duty as a member, his alleged suspension and failure to be restored, and the duties and agency of the subordinate lodge to which Cotter belonged, have been raised, but, a decision of them being unnecessary, they are reserved.

The Ancient Order of United Workmen is a voluntary mutual benefit society or association composed entirely of such persons as may become and remain members thereof in compliance with its laws. Its objects, as promulgated by the supreme lodge, are to unite white male persons over 21 and under 45 years of age, regardless of nationality, political preference, or denominational distinctions, who believe in a Supreme Being, into a “fraternal brotherhood” (sic), and to “pledge the members to the payment of a stipulated sum to such beneficiary as a deceased member may have designated while living, under such restrictions and upon such conditions as the laws of the order may prescribe. ’ ’ The supreme lodge is the governing body of the society, having exclusive jurisdiction of all subjects pertaining to the general welfare of the order, and clothed with appellate jurisdiction, as a final tribunal of review and appeal, of the decisions of the grand lodges. The defendant is the Grand Lodge of the Ancient Order of United Workmen of Montana. It has exclusive original jurisdiction over all lodges of the society in Montana, subject to the constitution and laws of the supreme lodge and the right of appeal. It has power to make rules for conducting its beneficiary system. Its revenues are derived from the fees for the organization of new subordinate lodges, issuing of beneficiary certificates, the sale of lodge supplies, a per capita tax on the membership, and from an assessment of $1 on each member who has received the Workman degree, imposed whenever the beneficiary fund in the grand lodge treasury is less than §2,000, or whenever the beneficiary fund would, by the payment of the beneficiary certificates whose liquidation is unavoidably delayed, be reduced below that sum. The members pay the poll taxes and assessments to the subordinate lodges to which they belong, and such lodges forward the money collected to the grand lodge. Upon receipt of the official notice and proof of death of a member in good standing entitled to the benefits of the order, the recorder of the grand lodge shall refer the same to the finance committee, and, when approved by this committee, a warrant shall, with the consent of the grand master workman, be drawn upon the receiver of the grand lodge in favor of the beneficiary of such deceased member, and forwarded to the subordinate lodge to which decedent belonged. The chief officer of the grand lodge is the grand master workman. He must sign all orders drawn upon the grand receiver for such sums as may be voted by the grand lodge, and all warrants authorized by the finance committee between sessions of the grand lodge, if he concur in the approval of the claims for which warrants are authorized. The only method provided through which the grand lodge may pay money is by orders or warrants on its receiver, signed by the grand master workman, and attested by the grand recorder, under the seal of the grand lodge. The constitution of the defendant grand lodge requires the appointment at each annual session of a board of arbitration to hear and determine all controverted questions which may arise as to the disbursement of its beneficiary fund, and controversies touching its liability for demands against it by those claiming to be beneficiaries of deceased members, and as between those who assert rights as beneficiaries when conflicting claims are set up, “and the decision of a majority of said board shall be final and conclusive, unless reversed by the grand lodge or supreme lodge, it being the purpose and intention of this provision that all these rights shall be determined without recourse to courts of law. ’ ’ The board shall report its action to the grand lodge, which may affirm or reverse the same, and, as a tribunal of review and appeal, make such disposition .of the matter as to it may seem proper, subject to an appeal to the supreme lodge. Whenever any claim under a beneficiary certificate issued by the defendant grand lodge ‘ ‘shall be rejected by the grand master workman and finance committee of this grand lodge, before any other proceeding shall be had thereunder, it shall be necessary for the claimant or claimants to demand a hearing, and offer to submit their claim or claims for the consideration of the board of arbitration of this grand lodge, and if, after such offer of submission and hearing thereof, such claimant or claimants are not satisfied with the conclusions of the board of arbitration, such claimant or claimants must, by appeal, submit their claim or claims to the grand lodge for its consideration, and, if such claimant or claimants are not satisfied with the action of this grand lodge, such claimant or claimants must, by appeal, submit their claim or claims to the supreme lodge Ancient Order United Workmen for its consideration and action, as provided by the general laws of this order; and any claimant or claimants seeking to enforce a claim or claims without such submission and appeal shall be estopped, by virtue hereof, from maintaining any suit or action upon such claim. ’ ’

In December, 1888, Cotter became a member of Butte Lodge No. 1, which was then within the jurisdiction of the grand lodge of Nevada, but which since January 1, 1891, has been under the jurisdiction of the defendant grand lodge. On August 13, 1894, beneficiary certificate No. 764, which is the subject of this action, was issued, countersigned by the master workman of the local lodge in conformity with the laws of the defendant as of December 27, 1888, — the day when the workman degree was conferred on Cotter. This certificate was issued for the purpose of effecting a change in the beneficiary. Cotter died on September 28, 1895. The plaintiff then gave notice and furnished proof of the death of Cotter to the grand recorder through the local lodge. The recorder thereupon presented the notice and proofs to the finance committee of the defendant, which committee made the following report: “In the matter of the death report of D. P. Cotter, there is presented to the committee at this time death report executed by Butte Lodge No. 1, the undertaker and attending physician, but there has been filed in the grand recorder’s office up to this time no beneficiary report from Butte Lodge No. 1, containing any reference to D. P. Cotter’s standing in the order since the report filed March 7, 1894, which shows D. P. Cotter to have been suspended on assessment No. 2, levied in January, 1894, and there is nothing before this committee on which it can act.” It was further shown that the finance committee orally rejected the claim, and advised the grand recorder of such rejection, and that he reported the oral rejection, ,as well as the written report of the committee, to Butte Lodge No. 1, through which the claim had reached him.

In support of a defense pleaded, the defendant offered to prove that the plaintiff never demanded a hearing before, or submitted or offered to submit her claim to, the board of arbitration of the defendant, although she knew of the action taken by the finance committee. All evidence tending to support such offer was excluded, the defendant excepting. This exception presents the only question which we deem necessary to consider; for the brief of plaintiff admits that arbitration was not had, and we understood her counsel to concede upon the argument that she had not demanded a hearing, or offered to submit her claim to the board of arbitration.

Plaintiff contends that the provisions made by the society and by the defendant order establishing a series of tribunals for the hearing and determination of all controverted questions which may arise as to thq liability of the grand lodge of Montana upon death claims under beneficiary certificates issued by it, and declaring the decision of each final and conclusive, unless an appeal be taken to the next higher tribunal, the last being the supreme lodge, which is called a final tribunal of review and appeal, are void, — their expressed purpose being that such claims shall be investigated and finally determined within the society or order without recourse to the courts of law. It is to be observed that the constitution of the defendant, after requiring the claimant to demand a hearing and offer to submit his claim to the tribunals of the order, declares, in effect, that he shall not maintain any suit upon the claim, unless it has first been submitted and appealed.

Much contrariety of opinion is revealed by the adjudications with respect to the question of whether the laws of mutual benefit societies of the character of the Ancient Order of United Workmen which establish tribunals whose decisions are declared to be final and conclusive may be permitted to effect the result sought to be attained, — the prevention of resort to the courts by a member or one claiming to be a beneficiary. The common-law doctrine that a provision in an ordinary contract requiring all differences between the parties touching their rights and liabilities thereunder to be submitted to arbiters, whose decision or award shall be conclusive and final, will not be allowed to bar the litigation of such differences in the courts of the land, is an anomaly, and inconsistent with the right freely to contract; and, if it were not so firmly and well-nigh universally established, we apprehend that it Avould be over-turned, as resting upon no solid foundation of reason. Its operation should not be extended by construction, nor should it ever be invoked to nullify or impair contractual provisions not clearly infected with the supposed evils intended to be cured or prevented. (See President, etc. of Delaware & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 258.) The doctrine is, however, recognized and approved by the decisions of this court (Wortman v. Montana Central Railway Co., 22 Mont. 266, 56 Pac. 316, and the citations therein),, and also by section 2245 of the Civil Code of 1895, which, having been enacted since the constitution and laws of the defendant were promulgated and adopted, and after Cotter became a member of the defendant, has no pertinency to this case. On principle, there seems to be no good reason why the members of a purely mutual and semicharitable benefit society may not agree and contract .with each other by laws of their own making that future differences and controversies, arising out of their relation to each other and to the society, shall be finally determined by the tribunals created and selected by themselves. We are inclined to think the better reasoning is with those courts which, while recognizing and following the common-law rule where ordinary contracts are involved, nevertheless hold that the members of, and those claiming benefits from, the society are bound, in the absence of fraud or palpable error, to seek redress of their grievances in the mode prescribed by the society, wherein vests the sole jurisdiction to right their wrongs, and that they are precluded from resort to the courts. (Robinson v. Templar Lodge, 117 Cal. 370, 49 Pac. 170; Canfield v. Great Camp, etc., 87 Mich. 626, 49 N. W. 875, and cases there referred to; Fillmore v. Great Camp, etc., 103 Mich. 437, 61 N. W. 785; Id., 109 Mich. 13, 66 N. W. 675.) But it is not now necessary to decide whether the provision of the defendant’s constitution attempting to prevent the maintenance of an action at law upon a beneficiary certificate is enforceable or not. Even though such provision be void, the requirement that the claimant shall seek and exhaust his remedies within the order before he may litigate his rights in the courts is valid, and must be complied with. We feel no hesitancy in declaring that the provisions are reasonable and valid in so far, at least, as they demand a resort to the several tribunals of the order as a condition precedent to maintaining an action at law to recover a money judgment upon a death claim, and such is our opinion without reference to the clause that ‘ ‘any claimant * * * seeking to enforce a claim * * * without such submission and appeal shall be.estopped, by virtue hereof, from maintaining any suit or action upon such claim”; for the claimant would still be required, by virtue of the other provisions, to pursue the course and exhaust the remedies prescribed by the order as a prerequisite to the right, if any there be, of resort to the courts. Similar provisions in the laws of like societies have been frequently the subjects of judicial inquiry. The view that they are inoperative has been expressed in but few cases, of which Daniher v. Grand Lodge, A. O. U. W., 10 Utah 110, 37 Pac. 245, is a type. An extended and critical examination of the reported adjudications justifies us in making the assertion that the substantial unanimity of opinion, based upon correct principles, upholds sufii provisions as valid and enforceable so far as they require, as a condition precedent to the bringing of an action, an exhaustion of the prescribed remedies within the order. Out of a multitude of decisions supporting this view, we cite: Robinson v. Templar Lodge, supra; Supreme Council v. Forsinger, 125 Ind. 52, 25 N. E. 129; Jeane v. Grand Lodge, 86 Me. 434, 30 Atl. 70; Supreme Lodge v. Raymond, 57 Kan. 647, 47 Pac. 533; Smith v. Ocean Castle, 59 N. J. Law 198, 33 Atl. 849; Robinson v. Irish-American Ben. Society, 67 Cal. 135, 7 Pac. 435; Poultney v. Bachman, 31 Hun, 49; Harrington v. Workingmen’s Ben. Association, 70 Ga. 340; Wood v. What Cheer Lodge (R. I.) 35 Atl. 1045; Levy v. Order of Iron Hall, 67 N. H. 593, 38 Atl. 18; Oliver v. Hopkins, 144 Mass. 175, 10 N. E. 776; McAlees v. Supreme Sitting Order of the Iron Hall (Pa. Sup.) 13 Atl. 755; Grant v. Langstaff, 52 Ill. App. 128.

The suggestion that the constitution and laws of the defendant order may not be binding upon the plaintiff as the beneficiary of a deceased member is without merit. Whatever right she may have arises from, and depends solely upon, the voluntary act of her father in becoming and remaining a member of the defendant order, and she is as much bound as was he. (Canfield v. Great Camp, etc. supra.)

The plaintiff insists that her claim was not rejected by the grand master workman and the finance committee of the defendant, and that a rejection by each is, under the laws of the defendant, a prerequisite to the existence of a right in her to demand a hearing before, and submit her claim to, the board of arbitration, and that therefore she was under no obligation to demand a hearing, or submit her claim prior to bringing the present action. The provision referred to has already been stated. It is that, whenever a death claim “shall be rejected by the grand master workman and finance committee of this grand lodge,” the claimant must, before taking any other proceeding, demand a hearing, and offer to submit his claim for the consideration of the board of arbitration. The language, literally interpreted, means that an appeal does not lie, unless both the grand master workman and the finance committee reject the claim. No difficulty is experienced in reaching the conclusion that a rejection by either the grand master workman or the finance committee is sufficient to require the claimant to seek relief from the board of arbitration. The copulative ‘and’ ’ between ‘ ‘grand master workman’ ’ and ‘finance committee’ ’ should be read as if it were the disjunctive “or.” It is to be noted that all warrants and orders for the payment of money by the grand lodge must be signed by the grand master workman. When the grand lodge itself orders a warrant drawn, the grand master has but one duty to perform with respect to it, to wit: the signing of the warrant. He has no discretion in the matter. He is without authority to approve or disapprove. When, however, the finance committee approves claims, and authorizes warrants between sessions of the grand lodge, their action is subject to the approval or disapproval of the grand master workman; for without his consent to the allowance by the finance committee, disclosed by his signing the warrant, the action of the committee is without effect. If he approves the allowance, he signs the warrant for its payment. If he disapproves, his duty is performed when he omits to sign. His approval, as well as that of the committee, is, in the absence of an appeal, required for the valid allowance of a claim. A disapproval by either is a rejection. The finance committee may approve a claim which the grand master workman disapproves, or the finance committee, acting independently of the grand master workman, may refuse to allow a claim,- — in either case the rejection is effectual. The grand master workman has nothing whatever to do in the matter of approving or disapproving when the finance committee has rejected; in such case his attempted rejection adds nothing to the effect already produced by the action of the committee. In short, neither the grand master workman nor the finance committee alone can allow a claim, but either may reject, although the other may favor payment. According to the theory of the plaintiff, an appeal does not lie when the finance committee approves, and the grand master workman rejects a claim. Her theory is also that an appeal does not lie, unless the grand master workman performs the vain and useless act of disapproving the claim already rejected by the finance committee. He has no duty whatever to perform where the finance committee rejects a claim. It is only when the committee approves that the power to reject is confided to him.

The duty of the finance committe was to act upon the claim. This duty was ministerial, the performance of which, if refused or unreasonably delayed, could doubtless be compelled by mandamus, to the end that the rights and privileges of both the plaintiff and defendant might be preserved and enforced in conformity with the laws of the society. Under such circumstances, in view of the provisions in respect of the obligation to submit to arbitration, mandamus would seem to be the only remedy at law available to the plaintiff, unless, indeed, the refusal or delay were tainted with bad faith, of which the record presents no evidence. But discussion or decisión of this question is unnecessary, since there was evidence tending to show a rejection. The written report of the committee may possibly not have been a complete rejection. It was, however, at least a qualified rejection, or a failure or refusal to approve at the time the report was made for the reason therein stated, which reason prevented favorable action on the claim. In addition to the written report, the committee orally rejected the claim. Such report and rejection were communicated to Butte Lodge No. 1, by which, on plaintiff’s behalf, the notice and proof of death had been sent to the defendant, and the inference is that she was duly advised of the disallowance.

In excluding the offer to show that plaintiff never demanded a hearing or offered to submit her claim' to the board of arbitration, the court erred to the prejudice of the defendant.

The order denying a new trial is therefore reversed, and the cause is remanded.

Reversed and Remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF BUTTE, Respondent, v. CALL, Appellant.
    [No 1,410.]
    [Submitted June 27, 1899.
    Decided July 3, 1899.]

      Criminal Law — Appeal—Notice of Appeal — Record—Dismissal of Appeal.

    The Appellate Court is without jurisdiction to consider an appeal, where the record contains no copy of the notice of appeal, as prescribed by Penal Code, Sec. 2281.

      Appeal from District Court, Silver Bow County; William Clancy, Judge

    Action by the City of Butte against Frank Call. From a judgment for plaintiff, defendant appeals.
    Dismissed.

      Mr. Chas. O' Donnell, for Appellant.
   PER CURIAM.

— The record in this case shows that the defendant was tried in the police court of the city of Butte, Silver Bow county, on a charge of violating Section 16 of Ordinance 471 of said city of Butte, entitled, ‘ An ordinance providing for the payment of licenses to the city of Butte, and repealing Ordinances Nos. 93, 342, 549, 373, 404 and 453.” He was adjudged guilty as chax*ged, and sentenced to pay a fine. From this * judgment he appealed to the District Court in and for said county, and upon another trial had therein, on May 16, 1898, he was again found guilty, and judgment for a fine entered against him. The record, however, contains no copy of the notice of appeal given, as provided by Section 2281 of the Penal Code. This Court is therefore without jurisdiction to review any question presented therein. The appeal is therefore dismissed.

Dismissed.


author: MR. CHIEF JUSTICE BRANTLY

text:
    BRAMLETT, et al., Respondents, v. FLICK, et al., Appellants.
    [No. 1081.]
    [Submitted April 12, 1899.
    Decided July 3, 1899.]

      Mdnving Claims — Location — Ouster — Evidence — Filing of Record — Construction of Notice.

    1. A notice of location of a mining claim, which, by reference to natural objects and monuments erected by the locator, contains directions which, taken in connection with such objects, would enable a person of ordinary intelligence to find the claim and trace its boundaries, is sufficient.
    Obiter. — Courts always construe these notices liberally.
    2. Whether or not a claim could be ascertained from such notice and the proof in regard to the surroundings is for the jury.
    3. Xn an action to determine adverse claims to a mining claim, a notice of location which described a claim as being situated in a certain county, a certain distance from another claim, and defined by courses marked by substantial monuments, readily identified by marks thereon, taken in connection with evidence that the' locator discovered gold-bearing quartz, and made a monument at the place of discovery, upon which he posted his notice of claim, shows prima facie ownership of such claim.
    4. An entry upon the land of another under assertion of title is an ouster; intention guides the entry, and fixes its character.
    5. Where one enters upon the mining claim of another under claim of title thereto, and mines thereon, and warns such other not to mine thereon, such conduct amounts to an ouster from the territory of the latter claimed by the former.
    6. Where one mining claim encroaches upon another, it is not error to permit the engineer, who has made a plat thereof, to point out the exterior boundaries of the encroaching claim, as it tends to enlighten the jury as to the controversy.
    7. A question as to whether a practical surveyor, familiar with the methods of locating claims, and familiar with surveys in mountainous countries and with the neighborhood, could take the description in a notice of location of a claim, and, starting at the pointof discovery, find the claim described therein, is incompetent, as calling for an opinion.
    8. In an action'to determine the boundaries of conflicting mining claims, evidence as to whether or not a surveyor found the boundaries of a claim without assistance, whether the blazing upon posts appeared to be old or new, and whether he could readily find the blazes on the trees along the boundaries, and whether they could be traced from one to another, relates to matters of fact, and is not open to the objec-
    ' tiou of being opinion evidence.
    9. Under Comp. St., div. 5, § 1477, which provides that the discoverer of a mining claim shall have 20 days in which to complete the location and malte the necessary record, a discoverer who posted in plain view a notice of location, and “claim of 1,500 feet on this lead, with twenty days for prospecting,” if he made it in good faith, and with an intention to complete his location within the prescribed 20 days, thereby acquired a right to all the ground along the lead legitimately covered by his notice; and one locating thereon subsequently to such notice, and prior to the expiration of the 20 days, does not acquire a superior title, though he filed his statement and record within 20 days, and the former did not.
    10. A notice, posted by the locator of a claim, that he claims 1,500 feet on a lode, will be construed to limit Ins claim to 750 feet along the lode on either side of the point of discovery.
    11. The fact that a locator, after posting his notice, included within his boundaries ground not legitimately covered by his notice, if this was done in good faith as the result of ignorance or inadvertence merely, would not invalidate his claim, in so far as it includes what was legitimately covered by the notice.

      Appeal from District Court, Flathead County; Cha/rles W. Pomeroy, Judge.

    Action; by J. H. Bramlett and others against John J. Flick and another. From a judgment in favor of plaintiffs, defendants appeal.
    Reversed.

      Mr. G. B. Winston and Mr. C. H. Foot, for Appellants.

      Messrs. Sanford c& Grubb, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

In this action the plaintiffs seek to recover possession from defendants of a portion of the surface ground of the Blacktail lode claim, situate in Missoula (now Flathead) county. The complaint alleges ownership and right of possession in plaintiffs of 1,500 feet along the lode, and 300 feet on either side from the middle or center thereof, under and by virtue of a discovery and location thereof on July 12, 1892, and a compliance with the laws of the United States and the state of Montana, by proper record of their declaratory statement. It is then alleged that on or about August 20, 1894, the defendants entered upon a portion of the claim, ousted plaintiffs therefrom, and now unlawfully withhold the same from them, to their damage in the sum of $200.

The defendants, after denying the allegations in the complaint, set up title, right of possession, and possession, in themselves, under a location called the “Bell Lode Claim,” alleged to have been made by them prior to that of plaintiffs’. They allege the facts of their discovery, location, and a compliance with the law necessary to a valid claim. They further allege that the boundaries of the Bell lode claim conflict with those of the Blacktail lode claim, particularly describing the conflicting area by metes and bounds, and claim that they are lawfully in possession of this area under their prior location. The complaint does not describe this area, but in the trial court proof was introduced by the plaintiffs identifying it, and the case was treated by both parties as if the complaint contained a proper description. No question is made here on this point. We shall therefore assume that the complaint is sufficient in this regard, and so treat it.

The trial in the court below resulted in a verdict and judgment for the plaintiffs. The case comes here, on appeal from the judgment and an order overruling defendants’ motion for a new trial.

The plaintiffs first produced evidence of what plaintiff Bramlett, who made the location of the Blacktail claim, did at the time of the location, in the way of making a discovery, post: ing his notice, and marking the boundaries of the claim. His evidence was supplemented by that of A. L. Jaqueth, a mining engineer, who had made a survey of both claims a few days before the hearing. As an exhibit to his statement, there was introduced in evidence a plat or diagram made by him from this survey, showing the relative positions of both claims, the courses and extent of their boundary lines, and the area in conflict. For illustration and for convenience for reference, this diagram is inserted here':

Thereupon, over the objection of the defendants, the court admitted in evidence a copy of the notice of location of the Blacktail claim, filed for record on August 1, 1892. The ground of the objection was that it is incompetent, immaterial, and irrelevant, in that it contains no such description of the claim, with reference to natural objects or permanent monuments, as will identify the claim, and that the evidence up to that point showed that the claim is not correctly described in the notice. The notice, after stating that the plaintiffs’ claim extends 750 feet easterly and westerly from the discovery shaft upon the lode, and 300 feet on either side of the center or middle thereof, proceeds: “This lode is situated in an unorganized mining district in the county of Missoula and state of Montana, on a branch of Foundation Fisher creek, about six miles N. W. of where Thompson Falls crosses same. The adjoining claims are none, the Golden Eagle being about one mile S. E. from the Blacktail. The exterior boundaries of this location are distinctly marked by posts or monuments at each corner of the claim, so that its boundaries can be readily traced, viz: Beginning at N. E. corner post, marked £A, ’ and running from thence six hundred feet in a southerly direction to S. E. corner post, marked £B’; from thence fifteen hundred feet in a westerly direction to 8. W. corner post, marked £C’; from thence six hundred feet in a northerly direction to N. W. corner post, marked CD’; and from thence fifteen hundred feet, in an easterly direction, back to post £A, ’ place of beginning. ’ ’

The evidence of plaintiff Bramlett tended to show that he went upon the ground on July 12, 1892, and made a discovery at the point marked £ ‘Discovery Shaft’ ’ on the diagram, of quartz in place, containing free gold; that this was from 9 to 10 o’clock in the forenoon; that he proceeded at once to make the location by piling up a monument of stone at the point of discovery, and putting up a substantial copy of the recorded notice there; that he then staked both ways 750 feet; that he put up the northeast corner first, and then the others, going from this point around the claim, and back to the place of beginning; that at the northeast and northwest corners he cut off trees four or five feet from the ground, and squared the stumps; that at the other two corners he blazed standing trees on four sides; that he also put up a center end stake at the east end of the claim; that the corners were marked “A,” “B,” “C, ” and “D,” in order, preceded by the name and date, “Blacktail, July 12, 1892”; that the east end center stake was a tree, blazed and marked; that he was engaged at the location until about noon, and that he saw no signs of prospecting there; that the ground covered by the claim is rough and mountainous, with cliffs towards the northwest, sloping rapidly down towards West Fisher creek on the north and northeast, and covered partly with undergrowth and down timber; that he had to guess at the courses, and had no'means of measuring the distances, other than by stepping from point to point; that the Golden Eagle claim was located by himself on June 27, 1892; that this claim is on Bramlett creek, which is about a mile southeast of the Blacktail claim; that his camp where he stayed during his prospecting was on Bramlett creek; that there is no such stream as Foundation Fisher creek, but that Foundation is á flat down below on the main or West Fisher creek, where the Thompson Falls trail crosses West Fisher creek, and from which the trail up to Bramlett creek and the Blacktail country leads; that the Blacktail claim is in fact located on West Fisher creek, and not on a branch of it; that at the time the location was made he supposed it was on a branch of the West Fisher, but that it is upon the main stream; that he afterwards, at various times, saw all the posts put up by him upon the claim and that they all remained there until about the beginning of this action, except the northwest corner, which he discovered, in the spring of 1896, had disappeared, and that he restored it at that time by setting up as near the same place as possible a post similar to the original one, and marking it, ‘ ‘Post Restored’ ’; and that the plat introduced in evidence is a fairly correct representation of the claims, and their relative positions.

This witness became somewhat confused in giving the directions from each other of the boundary posts upon the claim, and the course he went from the place of beginning at the time he. made the location. In the notice it is stated that post B is in a southerly direction from post A. In his testimony he states he went from post A to B in an easterly direction. From the plat it appears that he went in a direction S., 35° 50’ E. Again, the southwest corner is given in the notice as westerly from post B at the southeast corner, while he states that he went in a southerly direction from post B to this corner. The plat shows that this direction is S., 56° 55' W. In another part of his testimony he also states that the Black-tail claim is southwest from the Golden Eagle about one mile, thus placing it a mile or more from the locality given it in the notice. It further appears from the plat and the testimony of Jaqueth that the distances from post to post mentioned in the notice are materially greater than these distances as actually measured. Jaqueth states that there was some difficulty in finding the claim at the time of the survey, and that the plaintiffs were compelled to call to their assistance one McGovern, who knew the country well, before they could locate it. Jaqueth further testifies that at the time the survey was made the country was covered with a deep snow, and that it was necessary for the surveying party, in order to find the corners, to dig down into the snow. It was upon the ground of these inconsistencies and discrepancies in the proof offered in support of the notice, as preliminary to offering it in evidence, that the objection to its admission was predicated. At first glance, the inconsistencies do seem glaring and irreconcilable, but upon closer view they in large measure disappear; at least, they so far disappear, or are explained away by other .parts of Bramlett’s statements, that we think the court was right in overruling the objection and allowing the notice to go to the jury. The reference in the notice to Thompson Falls crossing and Foundation Fisher creek certainly gives no aid in identifying the claim, in view of Bramlett’s statement that no such place exists. But this reference may be omitted entirely, and still enough be left in the notice, by way of reference to the other objects, to go to a jury, under the evidence applying the other objects mentioned to the locality surrounding the claim, and identifying the monuments upon the claim itself. (Lindley on Mines, Sec. 383; Flavin v. Mattingly, 8 Mont. 242, 19 Pac. 384; Gamer v. Glenn, 8 Mont. 371, 20 Pac. 654; O' Donnell v. Glenn, 8 Mont. 248, 19 Pac. 302; Hoffman v. Beecher, 12 Mont. 489; 31 Pac. 92; Upton v. Larkin, 7 Mont. 449, 17 Pac. 728; Russell v. Chumasero, 4 Mont. 309, 1 Pac. 713; Brady v. Husby, 21 Nev. 453, 33 Pac. 801.) “It is not for the court to say, by merely looking at a record or declaratory statement, what are or what are not permanent objects or monuments. That is a matter of proof. A stake or a stone of the proper size, and properly marked, may be a permanent monument. ' A declaratory statement or record thereof, with a reference to permanent stakes or monuments, which did not exist as a fact on the ground, would not be good, while a defective description in the record or declaratory statement might be cured if the stakes or monuments on the ground identified the claim.” (Russell v. Chumasero, supra.) The reference to the Golden Eagle claim is definite enough to allow the notice to be submitted to the jury. True, Bramlett places it in a direction different from the one stated in the notice; but subsequently this error is corrected by a statement that this latter claim is on Bramlett creek, and that the creek is about a mile southeast from the Blacktail claim. This statement is further aided by his testimony in another part of it, where he states that his camp was on Bramlett creek. This camp is more than once referred to by him as ‘my camp on Bramlett creek, ’ ’ and appears to have been a point on the creek at which the prospectors in that vicinity casually met from time to time in passing to and from the mountains. The fact that the Golden Eagle claim had been located by Bramlett himself on the 17th of the previous month did not necessarily raise a presumption that it was not well known at the time of the location of the Blacktail. In the absence of proof to the contrary, the presumption attached that it was well known. (Hammer v. Garfield Mining & Milling Co., 130 U. S. 291, 9 Sup. Ct. 548; Id., 6 Mont. 53, 8 Pac. 153; Book v. Justice Mining Co., 58 Fed. 106.) It is fair to suppose that such was the case, since it appears from' the proof that it was among the first locations made in that part of the country, and that the miners going up into that section passed up and down Bramlett creek near where it was located. At any rate, the question was for the jury. (Dillon v. Bayliss, 11 Mont. 171, 27 Pac. 725; Metcalf v. Prescott, 10 Mont. 283; 25 Pac. 1037, and the other authorities cited.) Even upon the presumption that this claim was not well known, still there is reference to marked stakes and trees upon the Black-tail claim itself, which the jury, under the authority of the cases cited, and under the proof so far given, might find to be permanent monuments. The discrepancies between the actual courses and distances and those stated in the notice do not necessarily vitiate the notice. “A mistake in the certificate as to the direction and course, such as ‘northerly’ instead of ‘northeasterly, ’ the description being aided by the monuments on the ground is of no moment.” (Lindley on Mines, § 381; Sanders v. Noble, 22 Mont. 110, 55 Pac. 1047; Book v. Justice Mining Co., supra.) It is sufficient if the description in the notice ‘ ‘contains directions which, taken in connection with such boundaries, will enable a person of reasonable intelligence to find the claim and trace the lines.” (Lindley on Mines, § 381.) The courts always construe these notices liberally, and if, by any intendment, the proof can be reconciled and made consistent with the statement contained in them, the jury will be allowed to say whether or not, upon the whole proof, the identification of the claim is sufficient.

At the close of plaintiffs’ case, defendants asked the court to direct a nonsuit upon the grounds (1) that the plaintiffs had failed to show title in themselves, and (2) that they had failed to show that they had been ousted by the defendants, or, if they did show an ouster by defendants, they had failed to identify the area from which they had been ousted. Sufficient has already been said as to what the proof tended to show touching the facts of plaintiffs location, and we think the plaintiffs made out a sufficient case in this regard to go to the jury upon the testimony of the engineer and Bramlett alone. Moreover, the statements of Bramlett are materially aided by those of other witnesses who were subsequently examined by the plaintiffs, and particularly by the statement of the witness Geiger, who fixed the location of the Golden Eagle claim almost exactly in accordance with the statement in the notice. He was also corroborated by Geiger, Roderick, and others as to the presence upon the ground of the monuments placed there by him to mark the boundaries. -These witnesses saw at various times from early in August, 1892, some or all of them; and Roderick states that they all remained there until it was discovered in the spring of 1896 that the northwest corner had disappeared, when he assisted Bramlett in replacing it.

The defendants contend that the five posts put upon the claim by Bramlett do not mark the boundaries sufficiently. But, under the authorities already cited, this was for the jury, and not for the court, to say, after hearing the proof.

We cannot sustain the contention that the proof fails to show an ouster by defendants, or the area from which the plaintiffs were excluded. The area in conflict is clearly shown by the testimony of Jaqueth, aided by the plat. It is shown by designated metes and bounds. True, this area is not described in the complaint, but the contention is not that the pleading is not sufficient, but that the proof is not sufficient.

As to the ouster, the plaintiff’s evidence showed that defendant Flick in 1895 was actually at work on the lead upon which the Blacktail discovery was made, and within the conflicting area. He had a man by the name of Preston working at that point. He had previous to this time, in 1895, notified the plaintiffs not to do any other work upon the lead. The plaintiffs were then at work taking out ore at the point marked “Blacktail Tunnel” on the plat. He claimed that this was upon the Bell claim, and that it belonged to him. He remained there and continued the work. He had also been at work there some in 1894. Taking this proof in connection with the fact that the boundaries of the Bell claim cover a considerable portion of the Blacktail, it sufficiently establishes an ouster of the plaintiffs from that part of the claim. An ■entry upon the land of another under assertion of title is an ouster. (West v. Lanier, 9 Humph. 762.) In Ewing v. Burnet, 11 Pet. 52, it is said: “An entry by one man upon the land of another is an ouster of the legal possession arising from the title, or not, according to the intention' with which it is done. In legal language, the intention guides the entry, and fixes its character.” (See, also, Bath v. Valdez, 70 Cal. 350, 11 Pac. 724, áhd Lindley on Mines, Sec. 537 et seg.) It is rarely the case that actual possession of a mining claim is maintained at all times. It is not often that one is inclosed. The possession is constructive, being drawn to the owner by virtue of his location. When, therefore, another enters upon the claim, asserting ownership therein by virtue of an alleged superior title based upon a location, and exercises dominion ■over it to the exclusion of the rights of the owner, this amounts to an ouster. We think the evidence on the part of the plaintiffs sufficient to show prima facie ownership in plaintiffs, and An ouster from the conflicting area by defendants.

Engineer Jaqueth was asked to point out the exterior ■boundaries of the Bell claim. This was in connection with •his detailed statement, illustrated by the plat, touching the relative positions of the two claims and the conflicting area-The defendants objected to the question, as tending to bring •out an immaterial matter. The court properly permitted him to answer. The evidence tended to enlighten the jury and give them a clear idea of the controversy between the parties.

This witness was also called to testify for the defendants in support of the Bell location. He was asked the following question by counsel for defendants: “I will ask you to state whether a practical and experienced engineer and surveyor, familiar with the methods of locating claims and familiar with surveys in mountainous countries, and with a knowledge of the neighborhood, could take the description given in the notice of (the Bell) location, and, starting at the point of discovery, find the ground or claim included within and known as the Bell location?” This was objected to by plaintiffs, and excluded by the court, as incompetent. A specific ground of objection, also, was that the question called for the opinion of the witness as an expert, and not for a statement of fact. Defendants’ contention is that the evidence called for should have been admitted in support of the description and references contained in the notice of the Bell location. They insist that the question calls for a statement of fact, and not for an opinion or conclusion. The witness was not examined as an expert. No ground had been laid for this purpose. The question was addressed to him as a practical observer. Nevertheless, even from this view, the objection was sufficient to require a ruling by the court. The affirmative answer evidently expected by counsel would have been equivalent to a statement by the witness that a practical and experienced engineer, familiar with surveys in mountainous countries, with the methods of locating claims in such places, and with a knowledge of the neighborhood, could take the description in the notice, and, starting at the discovery, find the claim. This is not a statement of any fact the witness had learned, or could have learned, through his organs of sense. It is simply an opinion as to what would be the probable result of a trial made by a practical and skilled engineer under a given state of facts. The inquiry' appertained to no “question of science, art or trade.” It was directed.to a determination of the question of the sufficiency of the acts done by a third person for the purpose for which they were intended, viz., the identification of the Béll claim. This was-the question to be answered by the jury upon the same facts which were within the knowledge of the witness. The trial court was therefore clearly right in refusing to permit the witness to state his opinion to the jury.

The defendants cite Dillon v. Bayliss, 11 Mont. 171, 27 Pac. 725, as supporting their contention. In that case evidence of the same character was offered by the defendant for the purpose of rebutting and overturning the presumption established in favor of plaintiff’s claim by the introduction of the notice of location, and the evidence in support of it. The objection made was that the notice was conclusive as to the-matter stated in it. This Court held that the notice is not conclusive, but that the description and references contained in it can be shown to be unintelligible and delusive. The question of whether the opinions of engineers or prospectors can be admitted for this purpose was reserved, for the court say, “Let it be well understood that we pass upon the objection as it was made and sustained.” (11 Mont. 183, 27 Pac. 728.) This case is therefore no authority in support of defendant’s contention. Other witnesses examined by defendants were asked substantially the same question. Objection was properly sustained to all of them.

This witness (Jaqueth) was further asked whether he found the boundaries of the Blacktail claim without assistance; whether the blazing upon the posts at the west end appeared to be old or new; whether the marks on the boundaries of the Bell claim appeared to be old or new; whether he could readily find the blazes on the trees along the end lines of the Bell claim, and whether they could be traced or observed from one to the other. Similar questions were put to other witnesses. The court sustained objections to them all on the ground that they called for the opinion of the witnesses. These rulings were clearly wrong. Witness Jaqueth had already been permitted to answer the first of these questions when upon the stand for the plaintiffs. It might have been excluded upon the ground that it was a repetition, but it was clearly competent as reflecting upon the condition of things found upon the ground at the time of the survey. There was a sharp conflict in the testimony as to whether some of the monuments had ever been put upon the Blacktail claim, — particularly as to the northeast and northwest corners. There was some evidence tending to show that these corners had not been put up at the date of the Blacktail location. There was the same controversy as to the situation of the posts upon the Bell claim, and whether they had been put there as early as claimed by defendants. There was also a controversy as to the existence of blazes on the trees along the boundaries of this claim. The evidence sought to be brought out was certainly material, and not open to the objection made. It all consisted of matters of fact, a knowledge of which was gained by the witnesses from observation upon the claim.

With the single exception of the particulars just mentioned, the rulings of the trial court upon the admission and exclusion of evidence were correct, so far as our attention has been called to them. In instructing the jury,' however, the court adopted an erroneous view of the law touching the rights of defendants under the Bell location. The evidence introduced by defendants tended to establish the following: Defendant Flick went alone upon the ground covered by the Bell claim on July 8, 1892,- — four days before Bramlett went there. He was without tools, but went over the ground to see if he could find anything. At the point marked on the plat “Discovery Shaft,” he found a lead cropping out of quartz in place, bearing gold. After examining the lead, which he could follow along by its croppings, he cleaned off the surface of a tree standing at the discovery point, and wrote upon it, in plain view: “The Bell claim. Located July 8th, 1892. I claim 1,500 feet in length on this lead, with twenty days for' prospecting. [Signed] J. J. Flick. ’ ’ Thereupon, after prospecting along the lead for a while, he went away to look for feed for his horses. Having found none, the following days until the 11-th were spent in looking for a camping place where it could be had. He returned to the claim on the 11th in company with one Shaughenessy. They prospected on the claim and in its vicinity on that and the followiEg day. On the 16th, after prospecting over the ground again with Shaughenessy, he proceeded to complete the location by putting up four corner and two end stakes, beginning at the east end center stake. He put up this and the northeast and southeast corners, blazing along the line as he went. He then returned to the discovery, and blazed along through on the outcrop to the west end, where he put up two corner stakes and a center stake, blazing out the lines. The stakes were made by cutting off trees four or five feet from the ground and squaring the stumps, except at the northwest corner, where he found a stump 20 feet high, which he squared as it stood. All of these monuments were marked, “Northeast corner of the Bell claim,” “East end center stake of the Bell claim, ’ ’ etc. The distances and directions were estimated; the intention being to locate 100 feet easterly and 1,100 feet westerly from the discovery, and 300 feet on either-side. A notice was posted at the discovery, substantially the-same as the declaratory statement filed for record. This declaratory statement was subsequently prepared by a notary and left with him for record, but was not recorded until. August 2, 1892. A copy of this was introduced in evidence. .No objection was made as to its sufficiency in substance and! form. It is not necessary to note it, further than to mention, the fact that it contains the statement that “said quartz lode was discovered on July 8, 1892.” Other evidence tended to-establish the good faith of Flick in completing his location; claiming that his right dated from July 8th, the time at which he made his discovery. Defendant Rockefeller was joined as one of the locators when the declaratory statement was made-out.

Defendants’ contention at the trial was that, Flick having^ made his discovery and posted his notice upon the ground on the 8th of July, their claim thereto was superior to that of plaintiffs, that this act on the part of Flick withdrew the ground which was claimed in his notice from exploration by others, and that, plaintiffs having made their location within the 20 days during which the ground- was not open to location, their location was void, as to the conflicting area, and they acquired no right thereto, notwithstanding defendants failed to make their record within the 20 days. The court, entertained a different view of the law, and proceeded upon the theory that, inasmuch as the plaintiffs made their location and recorded their declaration before the defendants did, they acquired a right to the conflicting area, to the exclusion of defendants. We quote the fourth paragraph of the charge, as-illustrating the view the court held, and the theory upon which the case was submitted to the jury:

“You are instructed that if you find from the evidence that the defendants discovered the Bell lode or claim on the 8th day of July, 1892, before they had a valid or could have had a valid and subsisting right to said lode or claim, as against any person who had acquired an adverse right thereto, the defendants must have distinctly marked the location on the ground, so that its boundaries could be readily traced, and made and filed in the office of the county clerk and recorder in the county where such claim was situated an affidavit of the location thereof. If the defendants failed to do any one of these things, then, as against the plaintiffs, if the plaintiffs had made a valid location of the same, or any portion of the, same ground, by discovery and location and recording, between the said 8th day of July, 1892, and the 2d day of August, 1892, the plaintiffs’ right to the land in controversy would be valid, and a better right, and you will find for the plaintiffs. ’ ’

Under' the court’s view of the law, as stated here, the jury could not have found for the defendants, in any event, unless they found Bramlett’s location bad; for there is no controversy but that Bramlett finished whatever he did in the way of making his location on the 12th, or that he filed his statement for record on the twentieth day thereafter. And although the defendant Flick made his discovery and posted his notice on the 8th, still this gave him no rights at all, if he did not finish his location within the 20 days, and get his notice on record, no matter what were his intentions, or whether he was acting in good faith or not. The question presented is not without difficulty, but we think the result of the decisions of the courts upon similar controversies logically leads to the conclusion that, if Flick actually posted the notice in plain view upon the exposed lead, as claimed by him, on July 8th, and thereafter during the 20 days intended in good faith to secure his claim by completing his location, no failure on his part to make such a location and proper record within the 20 days would inure to the benefit of plaintiffs. In Doe v. Waterloo Mining Co., 70 Fed. 455 (a similar case, decided in 1895), it was held that the discoverer of a mineral vein should have a reasonable time after his discovery to complete his location; the length of time depending upon the situation of the ground, its character, the means of marking, the boundaries, and the abilities of the discoverer to ascertain the course or strike of the vein. The court held this to be the rule in the absence of local rules and regulations fixing the time within which the location might be completed. In this case 20 days were held to be reasonable. The supreme court of Nevada announces the same rule. (Gleason v. Martin White Mining Co., 13 Nev. 442.)

Wherever there are statutory provisions fixing the time within which,' after discovery, the prescribed work necessary to a valid location must be done in order to secure the claim, it is held that the discoverer has the full time provided in the statute to complete it. (Lindley, on Mines, § 339; Omar v. Sopar, 11 Col. 380, 18 Pac. 443; Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560; Marshall v. Harney Peak Tin Manufacturing Co., 1 S. D. 350, 47 N. W. 290; Sanders v. Noble, supra.) Under our statute now in force (Political Code 1895, §§ 3610 — 3612), at the time of discovery a notice must be posted at the point of discovery, and it is provided therein what this notice shall contain. The statutes of Colo rado and South Dakota contain similar provisions. In Sanders v. Noble, supra, following the authorities cited, this court held that, upon the posting of the notice at the discovery in compliance with the provisions of the statute, the prospector not only has the full 90 days in which to do the work necessary, but that in marking his boundaries after the work is done he may also swing his claim so as to make it cover the lead to the extent claimed, to the exclusion of others who have sought in the meantime to occupy ground within the possible limits of the claim. Our statute of 1887, under which the locations involved here were made, contained no provision requiring a notice to be posted, but it allowed 20 days in which to complete the location and make the neces sary record. (Compiled Statutes, Fifth Division, § 1477.) It therefore seems to be the inevitable conclusion from the authorities that the defendant Flick, if he posted his notice in good faith, in plain view, with the intention to-complete his location within the prescribed 20 days, after-prospecting sufficiently to enable him to determine the course- or strike of the vein, thereby acquired a right to all the ground along the lead legitimately covered by his notice, to-the exclusion of any person endeavoring to locate any part of it by means of a junior discovery.

Recurring now to the notice posted, the amount claimed is simply 1,500 feet along the lead; nothing being said as to the direction in which this was to be measured. In Erhardt v. Boaro, supra, a similar notice was considered by the supreme-court of the United States. In commenting upon it, Hr. Justice Field said: “The written notice posted on the stake-at the point of discovery * * * declares that they [the locators] claim fifteen hundred feet on the ‘lode, vein, or deposit. ’ It thus informed all persons subsequently seeking to-excavate and open the lode or vein that the locators claimed the whole extent along its course which the law permitted them to take. It is, indeed, indefinite, in not stating the-number of feet claimed on each side of the discovery point,, and must therefore be limited to an equal number on each side; that is to seven hundred and fifty feet on the course of the lode or vein in each direction from that point. To that-extent, as a notice of discovery and original location, it is sufficient. ’ ’ In posting the notice he did upon the lead, we are of the opinion that Flick thereby established a right for the-statutory period of 20 days to 1,500 feet along the lead, but that he was limited in this right to 150 feet on either side-of the point of discovery. The fact that in making the location thereafter he included within his boundaries ground not legitimately covered by his notice, if this were done in good faith, as the result of ignorance or inadvertence merely, would not invalidate his claim, in so far as it includes what was legitimately covered by the notice. In no event would any error or misprision on his part in endeavoring in good faith to compíete his location inure.to the benefit of the plaintiffs under their location, made on July 12th, as to any ground covered by it which comes within the limits embraced by Flick’s notice. To the extent, then, of 750 feet along the lead easterly and westerly from the discovery on the Bell claim, the ground was not open to exploration during 20 days after July 8th. In so far, therefore, as any of this ground is covered by the Blacktail claim, the latter should be held invalid, provided Flick’s good faith in posting his notice is established by the proof.

The instructions of the court on this branch of the case, as illustrated by the paragraph quoted, were therefore erroneous and prejudicial to the defendants. They are therefore entitled to a new trial upon the lines herein indicated.

We are requested to pass upon the question as to whether the evidence is sufficient in any event to warrant a verdict for plaintiffs. As there must be a new trial, we decline to express any opinion on this point.

Many other questions have been urged upon the attention of the court, but we think enough has been said herein to guide the court below in trying the cause anew.

Let the judgment and order appealed from be reversed, and the cause be remanded, with directions to grant defendants a new trial.

Reversed and Remanded.


author: MR. JUSTICE HUNT

text:
    DOWTY, Respondent, v. PITTWOOD, Appellant.
    [No. 1408.]
    [Submitted June 21, 1899.
    Decided July 3, 1899.]

      Municipal Corporations — Officers—Qualification of Aldermen —Act Regulating— Constitutionality — Repeal — Amendment— Construction.

    1. In view of Political Code, Section 5160, adopted February 25,1895, providing that laws passed at the session of the legislative assembly at which the Code was passed must be construed as if both had been passed on the last day thereof, and Section 2, providing that the Code shall not take effect until July 1, 1895, Compiled Statutes 1887, Div. 5, Section 365, relating to the qualification of aldermen, could not have been repealed or abrogated by the Code before July 1,1895, and hence the act of March 7, 1895 (Political Code, Section 4753), amending it, was a valid amendment of an existing law, and became, under the act of March 13,1895 (Political Code, Section 5180 et seq.), effective as a part of the Code on and after July i, 1895.
    2. The act of March 7,1895, entitled “An act to amend Sections 364 and 365 of the Fifth Division of the Compiled Statutes of Montana, and the amendments thereto, approved September 14; 1887, relating to the qualifications of mayors and aldermen and declaring the same, does not conflict with Constitution, Art. 5. Section 23, declaring that an act shall not embrace more than one subject, which shall be-clearly expressed in its title.
    3. The act does not violate Constitution, Art. 5, Section 25, providing that no law shall be revised, amended, or extended by reference to its title only; but so much as is revised, amended or extended shall be re-enacted and published at length.
    4. Political Code, Section 4753, providing that no person shall be eligible to the office of alderman, unless a resident of the ward where elected “for at least one year preceding such election,” means one year next preceding the election.

      Appeal from District Cowrt, Cascade County; J. B. Leslie, Judge.

    Contest of an election by David Dowty against William H. Pittwood. Prom a judgment in favor of contestant, the contestee appeals.
    Affirmed.

      Mr. Fletcher Maddox and Mr. J. W. Freeman, for Appellant.

      Messrs. Stanton de Stanton, for Respondent.
   MR. JUSTICE HUNT

delivered the opinion of the court.

Pittwood ran against Dowty for alderman of the first ward of the city of Great Palls at a city election held April 3, 1899. Pittwood was thereafter declared elected. Dowty then brought this action, under section 2010 et seq. of the Code of Civil Procedure, to contest Pittwood’s election, upon the ground that Pitwood was ineligible, for the reason that he had not been a resident of the ward for one year preceding his election. Pittwood moved to strike this allegation from Dowty’s statement, but the motion was denied. Judgment was thereafter entered in favor of respondent, Dowty, and annulling Pitwood’s certificate of election.

Pittwood appeals, assigning as error the order of the lower court denying the motion to strike out, and the rendering of judgment that he (Pittwood) was ineligible, and annulling his certificate of election. Section 4753 of the Political Code declares that “no person shall be eligible to the office of aider-man unless he shall be a taxpaying freeholder within the limits of the city and a resident of the ward so electing him, for at least one year preceding such election.” The Compiled Statutes of 1887 contained a section (365), in effect like section 4723 of the new Codes of 1895, supra. Section 365 referred to was one of the Act of March 10, 1887, which was Chapter XXII., of the Compiled Statutes. (Comp. St. 1887, Fifth Division, § 315 et seq.) By an act entitled “An act to amend an act relating to the formation of municipal corporations,” approved September 14, 1887, (Laws 15th Ex. Sess. 1887, p. 62), section 365 was amended by omitting the qualification that required an alderman to be a freeholder. Later amendments, in 1889 and 1893, to the municipal corporation statutes are not pertinent to the matter under examination. Then came the passage of the Political Code, on February 25, 1895, section 17 of which is as follows:

“No statute, law, or rule is continued in force because it is consistent with the provisions of this Code on the same subject; but in all cases provided for by this Code all statutes, laws and rules heretofore in force in this state, whether consistent or not with the provisions of this Code, unless expressly continued in force by it, are repealed and abrogated. This repeal or abrogation does not revive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any action or proceeding already taken, except as in this Code provided, nor does it affect any private statute not expressly repealed. ’ ’

Afterwards, on March 7, 1895, the legislature passed an act entitled “An act to amend sections 364 and 365 of the fifth division of the Compiled Statutes of Montana and the amendments thereto, approved September 14, 1887.” Section 2 of this act just referred to is the present section 4753, supra, Political Code. Pittwood argues from these facts that section 4753 is void, because section 365 of the Compiled Statutes, which is sought to amend, had been repealed by the adoption of the Political Code, on February 25, 1895, — 10 days prior to the enactment of section 4753. Section 292, Political Code, provides that an act amending a section of an act repealed is void.

Section 17 quoted, of the new Political Code, did not repeal the whole of the Compiled Statutes, or of the statutes which were in force, but only such statutes as were inconsistent, or were not consistent, with the provisions of the new Codes on the same subject, except where the new Codes expressly continued the old statutes in force. Now, section 4752 of the Political Code of 1895, providing that no person is eligible to any municipal office, elective or appointive, who is not a citizen of the United States, and who has not resided in the town or city for at least two years immediately preceding his election or appointment, and is not a qualified elector thereof, fixed the qualifications of all persons to hold any municipal office. The section was one upon the same subject as section 365 of the Compiled Statutes, — that is to say, it covered the question of the qualifications to hold any municipal office; and, if the Political Code had gone into effect'from the date of its passage, Code, § 4753, would have, undoubtedly, been a repeal of section 365 of the Compiled Statutes. But there is also a further provision to be considered (section 5160 of the Political Code), which is as follows:

‘ ‘With relation to the laws passed at the session of the legislative assembly at which the Political Code, Civil Code, Code of Civil Procedure and Penal Code, are passed, such Codes must be construed as though each had been passed on the last day of the session. ’

This provision bears directly upon the question before us, inasmuch as section 4753 was part of an act passed at the session of the legislative assembly at which the Political Code was passed, and therefore the Political Code is to be construed as though it had been passed on the last day of the session of 1895, which was March 7, 1895, when section 4753 also became a law. From this it follows that under no circumstances could section 17, supra, of the Political Code have repealed and abrogated section 365 of the Compiled Statutes before the last day of the session. But, furthermore, section 2 of the Political Code provides that that Code should take effect at 12 o’clock noon, the 1st day of July, 1895. Before then it was inoperative upon existing laws; so that section 17 supra could have had no effect before July 1, 1895; nor could section 292, relating to amendments. This being true, the Compiled Statutes were the laws in effect and controlling on March 7, 1895, when the act of which section 4753 is a section was passed, and by section 5182 of the Political Code these laws remained in effect until July 1, 1895, when the new Codes and the acts of the third and fourth sessions of the legislative assembly, amendatory thereof, went into force, and swept away all other statutes of a general nautre existing and in force prior to July 1, 1895.

From this it must follow that the act of March 7, 1895, amending section 365 of the Compiled Statutes of 1887, was a valid amendment to an existing law; and, as we hold said act is not in conflict with sections 23 and 25 of Article Y. of the constitution, it therefore became, under the provisions of the act approved March 13, 1895, (section 5180 et seq., Political Code), part of the Codes of the state, effective on and after July 1, 1895. Patient examination of all the statutes cited and others forces us to adopt this construction, support for which we also find in the principles heretofore applied in the cases of State ex rel. Aachen v. Rotwitt, 17 Mont. 41, 41 Pac. 1004; Steele v. Gilpatrick, 18 Mont. 453, 45 Pac. 1089; Proctor v. Cascade County, 20 Mont. 315, 50 Pac. 1017, and Jobb v. Meagher County, 20 Mont. 424, 51 Pac. 1034.

Appellant had been a resident of the ward for less than five months immediately preceding the city election. It is urged in his behalf that section 4753 does not require that the year’s residence provided for be a year immediately preceding the election, but that the law is satisfied by a residence of a year some time before' an alderman’s election. We cannot agree to this construction; for, in our opinion, it is against the intention of the legislative assembly, which, in adopting* the statute, never meant to depart from the underlying principle pervading all government in our form of securing* representation by one who has resided a length of time in the locality from which he is chosen to act in a representative capacity, and that such residence should be immediately prior to his election. Our opinion as to the meaning of the statute in this respect is strengthened by examining- section 4722 of Title III. of the Political Code, pertaining to cities and towns, which prescribes that electors of an incorporated city, in addition to other qualifications, shall have resided within the limits of the city for six months, and in the ward in which they vote for thirty days, “preceding the election,” while section 4755 provides that all qualified electors who have resided in the city for six months and in the ward for thirty days “next preceding the election” are entitled to vote at any municipal election. Comparison of these sections demonstrates that the expressions “preceding the election” and “next preceding the election” were used as equivalent in meaning, and, in our judgment, they were so used in sections 4752 and 4753.

The judgment must be affirmed.

Affirmed.


author: MR. JUSTICE PIGOTT

text:
    STATE, Respondent, v. ALLEN, Appellant.
    [No. 1,350.]
    [Submitted June 19, 1899.
    Decided July 3, 1899.]

      Criminal Law — Homicide — Verdict of Conviction ■— Sufficiency of Evidence — Appeal ■ — Review of Instructions — Rules of the Supreme Court — Specifications of Error — Talcing Exhibits to Jury Room— Waiver of Objection.

    L. A verdict of conviction of murder will not be disturbed wliere tliere is evidence to support it. It is not the province of tbe appellate court to usurp the office of tlie jury or the function of the trial court.
    2. A failure to comply with Subdivision 3 of Rule V. of the Supreme Court, providing that, when the error alleged is to the charge of the court, the specification shall set out totidem, verbis the part referred to, whether it be instructions given or instructions refused, is sufficient warrant for refusing an examination of the charge on appeal.
    3. Where appellant complains of the charge, but points out nothing to his prejudice, it it is not incumbent on the court to search for possible errors.
    4. Where, on a prosecution for murder, the counsel for the defendant, in defendant’s presence, consents to the taking to the jury room of certain exhibits admitted in evidence, such consent is a waiver of any objection to the sending of said exhibits to the jury while in retirement.

      Quaere. — Whether, under the provisions of Section 2122 and Subdivision 2 of Section 2192 of the Penal Code, it is error to send to the jury while in retirement such exhibits, admitted in evidence, as the skull of the decedent, his bloody hat and a certain blood-stained sack found at the place of the killing; or whether, without the defendant’s consent, but in the exercise of a wise and sound d iseretion, the court may send . to the jury in retirement exhibits other than papers.

      Appeal from District Court, Lewis and Clarke Cov/nty; Henry C. Smith, Judge.

    Joseph Allen was convicted of murder, and from a judgment sentencing him to death, and an order denying his motion for a new trial, he appeals.
    Affirmed.

      Mr. J. M. Clements, for Appellant.

      Mr. C. B. Nolan, Attorney General, for the State.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

Joseph Allen, charged by information with the crime of deliberate murder, committed upon one J. S. Reynolds on the 24th day of July, 1898, at the county of Lewis and Clarke, and convicted by a jury of murder in the first degree, appeals from the judgment sentencing him to death, and from an order denying his motion for a new trial.

The judgment and order are attacked upon these grounds:

It is claimed that the verdict is contrary to the evidence. The attentive consideration which we have given to the record enables us to express the opinion that there was ample evidence adduced tending to' prove defendant’s guilt of the crime of which he stands convicted, and to support the verdict rendered. The defendant, while admitting the killing, claimed that the act was done in self-defense; but the evidence tends strongly to show that he killed the decedent while the latter was asleep, for the purpose of gaining possession of a check payable to the order of the decedent, and which the defendant afterwards indorsed, and of certain personal property on the body of the decedent. The jury might, it is true, upon the testimony have found the defendant guilty of murder in the second degree, or of manslaughter, or might have acquitted him, for there was evidence from which inferences favoring homicide in self-defense, murder in the second degree, and manslaughter, respectively, might have been deduced by the triors of fact; but the jury were evidently satisfied that the only legitimate inference was that the defendant liad committed a deliberate murder. We cannot declare that the evidence presented was of such character and effect that it ought to have left in the minds of the jurors a reasonable doubt of the defendant’s guilt. It is not the province of this court to usurp the office of the jury or the function of the trial court.

The defendant asks us to review the charge of the court for the purpose of discovering whether error was committed in the instructions; but the brief fails to comply with that portion of subdivision 3 of Rule Y. of this court, applicable alike to criminal and civil cases, providing that, when the error alleged is to the charge of the court, the specification shall set out totidem verbis the part referred to, whether it be instructions given or instructions refused. This omission is sufficient to warrant us in refusing to examine the charge. (Babcock v. Caldwell, 22 Mont. 460, 36 Pac. 1081; Gibson v. Hubbard, 22 Mont. 517, 57 Pac. 88; Anderson v. Carlson, 23 Mont. 43, 57 Pac. 439.) Moreover, upon the argument counsel was unable to point out any misdirection or nondirection prejudicial to the defendant. Under such circumstances the obligation to search the charge for possible error is not incumbent upon this court.

The skull of the decedent; his hat, spotted with blood, and worn by him at or immediately prior to the time, and discovered at the place of the killing; and a certain bloodstained sack, found near the scene of the homicide, —were exhibited to the jury, admitted in evidence without objection, and used on the trial. After the jury retired to consider of their verdict, they requested the bailiff to bring the skull, hat, and sack into the jury room for their inspection; whereupon the court, being of the opinion that "the exhibits mentioned were proper for the jury to have for further inspection, ordered the bailiff to comply with the request, and the exhibits were then taken into the jury room, where they were used by the j ury. It does not appear, however, that any experiment was made with any of the exhibits. The defendant earnestly contends that the reception of these exhibits by the jury out of court is, under the provisions of section 2122 and subdivision 2 of section 2192 of the Penal Code, an error entitling him to a new trial. If the foregoing were all the facts touching the matter, necessity would arise for determining the question of whether such instruments of evidence were rightly sent to the j ury room, —the answers to which are not entirely uniform, as will appear by reference to the following cases: State v. Webster (Wash.) 57 Pac. 361; Dr. Jack v. Territory, 2 Wash. T. 101, 3 Pac. 832; People v. Page, 1 Idaho, 106; Powell v. State, 61 Miss. 319; State v. Stebbins, 29 Conn. 463; State v. McCafferty, 63 Me. 223; Hansing v. Territory, 4 Okl. 443, 46 Pac. 509; Yates v. People, 38 Ill. 527; Forehand v. State, 51 Ark. 553, 11 S. W. 766. Nor is it needful to decide whether, without the defendant’s consent, but in the exercise of a wise and sound discretion, the court may send to the jury exhibits other than papers. On the hearing of the motion for a new trial there was a sharp conflict between witnesses with respect to whether or not the defendant consented to the sending of the skull, hat, and sack to the jury during their retirement. The county attorney and a juror testified that, just before the jury retired, counsel for the defendant consented and agreed in the presence of the defendant, and in open court, that the exhibits mentioned might be taken to the jury room; and the juror further testified that, as soon as the jury discovered that the said exhibits had not been brought into the room, they directed the bailiff in charge to get them. The defendant and his counsel testified that neither of them ever consented or agreed to the taking of these exhibits to the jury room. The presumption is that the trial court, to which was addressed the application for a new trial, found against the defendant upon the issue thus presented, and, there being a substantial conflict in the testimony, this court must indulge the conclusive presumption that the decision is supported by the weight of the evidence; hence we have no right to disturb its action, unless there was error in sending the exhibits to the jury even with the consent of the defendant. We are of the opinion that the consent given by the attorney for the defendant in the presence of the defendant was the consent of the defendant himself, and that such consent was a waiver of the objection, made on the motion for a new trial, to the sending of the exhibits to the jury while in retirement, and eliminates the question whether error might well be urged had consent not been given. (See People v. Mahoney, 77 Cal. 529, 20 Pac. 73.)

The judgment and order are affirmed.

Affirmed.