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that, if it be not well taken, the record dis- | Malley and Ross, and Thatcher conveyed a closes other grounds, not considered by that fraction of his interest to Healey. Because court, for reversing the judgments and order of these transfers, and with the court's ap ing a new trial. And he further urges that, proval, Faubert was eliminated as a party if the decision of the Circuit Court of Appeals and Cole, Malley, Ross and Healey came in be right, it is not sufficiently comprehensive as plaintiffs. Thus the changes in title pend. to serve as a guide to the court and the par- ing the suit were followed by corresponding ties upon another trial. The plaintiffs insist changes in the parties plaintiff. that the judgments in the District Court were [4, 5] At all the times mentioned the title right and should be affirmed.

was in a sense affected by an outstanding [1] In the circumstances it is open to us to contract, executed by the original locators, deal only with the matter considered by the which invested Thatcher and Forman with a Circuit Court of Appeals and to remand the right to a specified share in the output or cases to it for any needed action upon other proceeds of the claim, and possibly with a questions, or to proceed ourselves to a com- right to have it worked and thereby made plete decision. The latter course seems the productive. The contract was not recorded, better inasmuch as counsel have united in but this is not material, for the contract was presenting to us all questions thought to arise good between the parties and no subsequent upon the record and the litigation already purchaser is calling it in question. See Rev. has covered a considerable period.

Laws 1912, 88 1038–1040. Unlike Thatcher, [2, 3] Criticism is made of the complaints. Forman had no interest in the claim other As presented in the state court they fully met than under this contract. He did not joia the requirements of the local Code, Rev. Laws in filing the adverse claim or in bringing the 1912, § 5526, and there was no request after suit, but with the court's approval came in as the removal into the federal court that they a plaintiff before the trial. We think his inbe recast to meet any further requirements

*292 prevailing there. Apart from the local Code, *terest was not such as to make him an es. each sufficiently stated a cause of action in sential party to the adverse claim or to the the nature of ejectment, save as some allega- suit, and yet was such as to make him an tions were wanting in precision and it was admissible party to either. Of course the left uncertain whether the defendant was in acts of those having the title in filing the possession. The latter defect was cured by adverse claim and bringing the suit inured to an affirmative statement in the answer that his benefit. And had they proceeded in his the defendant was in possession. Texas & absence to a judgment in their favor the same New Orleans R. R. Co. v. Miller, 221 U. s. would have been true of it. But this does not 408, 416, 31 Sup. Ct. 534, 55 L. Ed. 789. If prove that he could not be admitted as a the other defects embarrassed the defendant plaintiff. He had an interest-a real interest he should have interposed a timely objection,

-in the maintenance and protection of the which doubtless would have resulted in an in view of the liberal provisions of the local

claim which was the subject of the suit, and propriate amendments. Instead, he permitted the matter to pass until the trial was in statute, Rev. Laws 1912, 88 4998, 5000, we progress and then sought to obtain some ad- think the court did not err in allowing him to vantage from it. This he could not do; by come in as a plaintiff. It is not asserted that his failure to make timely objection the de- his presence was prejudicial to the defendant fects had been waived. We here dispose of and we perceive no ground for thinking it a related question by saying that, in our opin

could have been.

[6] A8 respects the Homestake placer, ion, the complaints, with the answers, put in Murray Scott and John J. Healey were the issue the validity of the lode locations, includ- original locators and the title was still in ing the requisite mineral discovery.

them when the adverse claim was filed and The defendant insists that necessary par. when the suit was begun, unless there be ties did not join in filing the adverse claims merit in the defendant's contention that in the land office, that in the suits there was Scott's interest had then passed to others a misjoinder of plaintiffs and a failure to join under attachment proceedings and that Healessential plaintiff's, and that deeds showing ey's interest had then passed to his wife. title in some of the plaintiffs were erroneous. Neither branch of the contention is, in our ly admitted in evidence in that they were opinion, well grounded. The attachment prowithout the requisite revenue stamps. We ceedings, although commenced before the adthink this insistence is untenable in all its verse claim was filed, did not result in a phases.

transfer of Scott's title until after the presAs respects the Guy Davis placer, Davis ent suit was begun. The purported conrerand Faubert were the original locators and ance of Healey's interest to his wife, to which Faubert soon conveyed a fraction of his in- the defendant directs attention, recites that terest to Thatcher. These three filed the ad- it was made upon a consideration paid in verse claim and brought the suit, the title be money at the time, and this is in no wise es. ing in them at the time. Thereafter Faubert plained. There is no evidence that the contransferred his remaining interest to Cole, sideration was paid out of any separate prop



(40 Sup.Ct.) erty of the wife, or that the conveyance was, stamp provision, such as the imposition of intended as a gift to her, or that she ever money penalties, fines and imprisonment. listed the subject of the conveyance as her The decisions upon which the defendant re separate property. In these circumstances, lies arose under the earlier acts and were according to the laws of the state, the Heal- based upon the presence in them of what ey interest was community property, of studiously was omitted from the later one.

As a preliminary to considering other conwhich the husband had the "entire *manage- tentions it will be helpful to refer to some ment and control" and the "absolute power features of the mineral land laws, Rev. Stat. of disposition.” He could lease or convey it $ 2318 et seq. (Comp. St. § 4613 et seq.), about without the wife's concurrence and could sue which there can be no controversy, and also in respect of it in his name alone. Rev. to what actually was in dispute at the trial Laws 1912, 88 2155-2160; Crow y. Van and what not in dispute. Sickle, 6 Nev. 146; Lake v. Bender, 18 Nev. By. those laws public lands containing valu361, 384, 385, 4 Pac. 711, 7 Pac. 74; Adams v. able mineral deposits are opened to exploraBaker, 24 Nev. 375, 55 Pac. 362; Malstrom v. tion, occupation and acquisition for mining People's Ditch Co., 32 Nev. 246, 260, 107 purposes; and as an inducement to effective Pac. 98.

exploration the discoverer is given the right to There was here a contract with Thatcher locate a substantial area embracing his disand Forman like that relating to the Guy covery, to hold the same and extract the minDavis, and this gave them a real interest in eral without payment of rent or royalty, so the claim, as already explained,

long as he puts one hundred dollars' worth [7] The adverse claim was filed and the of labor or improvements-called assesssuit was brought by Scott, Healey, Thatcher ment work-upon the claim each year, and and Forman. Afterwards, and following the to demand and receive a patent at a small consummation of the attachment proceedings, sum per acre after he has put five hundred the entire interest of Scott was transferred dollars' worth of labor or improvements upto Cole, Malley, Ross and Davis, and by rea- on the claim. son of this, and with the court's approval, [10] In advance of discovery an explorer in Scott was eliminated as a party and Cole, actual occupation and diligently searching Malley, Ross and Davis came in as plaintiffs. for minerali is treated as a licensee or tenant Thus there was no misjoinder of plaintiffs,

*295 nor any failure to join an essential party.

at will, and no right can be initiated or *acOf course, those who succeeded to Scott's in- quired through a forcible, fraudulent or terest pending the suit were entitled to the

clandestine intrusion upon his possession. benefit of what he had done while he held the But if his occupancy be relaxed, or be meretitle.

ly incidental to something other than a dili[8] In one of the adverse claims Healey's gent search for mineral, and another enters name was given as Frank J. instead of John peaceably, and not fraudulently or clandesJ., but this was a mere inadvertence, did not tinely, and makes a mineral discovery and mislead or prejudice any one, and rightly location, the location so made is valid and


must be respected accordingly. was disregarded by the District Court.

[9] A8 to the absence of revenue stamps, it Meagher, 104 U. S. 279, 287, 26 L. Ed. 735; is true that the deeds showing title in some

Union Oil Co. v. Smith, 249 U. S. 337, 346 of the plaintiffs—they were produced in evi- 348, 39 Sup. Ct. 308, 63 L. Ed. 635, and cases dence over the defendant's objection-were

cited. without the stamps required by the Act of

[11] A location based upon discovery gives October 22, 1914, c. 331, $ 22, Schedule A, 38 an exclusive right of possession and enjoyStat. 762. But this neither invalidated the ment, is property in the fullest sense, is subdeeds nor made them inadmissible as evi-ject to sale and other forms of disposal, and dence. The relevant provisions of that act, so long as it is kept alive by performance of while otherwise following the language of the required annual assessment work preearlier acts, do not contain the words of those vents any adverse location of the land. Gwilacts which made such an instrument invalid lim v. Donnellan, 115 U. S. 45, 49, 5 Sup. Ot.

1110, 29 L. Ed. 348; Swanson v. Sears, 224 and inadmissible as evidence while not *prop-U. S. 180, 32 Sup. Ct. 455, 56 L. Ed. 721. erly 'stamped. Those words were carefully

[12] While the two kinds of location-lode . omitted, as will be seen by contrasting sec- and placer-differ in some respects,2 a distions 6, 11, 12 and 13 of the Act of 1914 with

1 As to the status of an explorer or locator on sections 7, 13, 14 and 15 of the Act of 1898, oil-bearing land in advance of discovery, see the C. 448, 30 Stat. 454. From this and a com- special provisions in Act June 25, 1910, c. 421, 92, parison of the acts in other particulars it is 36. Stat. 847 (Comp. St. $ 4524), and Act March 2 .

1911, c. 201, 36 Stat. 1015 (Comp. St. $4637). apparent that Congress in the later act de

Clipper Mining Co. v. Eli Mining Co., 194 U. S. parted from its prior practice of making such 220, 229, 24 Sup. ct. 632, 48 L. Ed. 944; Webb v. instruments invalid or inadmissible as evi- American Asphaltum Co., 157 Fed. 203, 84 C. C. A. dence while remaining unstamped and elect- Fed. 830, 120 C. C. A. 160; Harry Lode Mining Claim,

651; San Francisco Chemical Co. v. Duffield, 201 ed to rely upon other means of enforcing this 41 Land Dec. 403.





covery within the limits of the claim is, ther party, and, if so, which, has the excluequally essential to both. But to sustain a sive right to the possession arising from å lode location the discovery must be of a vein valid and subsisting location. A suit approor lode of rock in place bearing valuable min- priate to the occasion must be brought by eral (section 2320 (Comp. St. § 4615]), and to the adverse claimant, and in that suit each sustain a placer location it must be of some other form of valuable mineral deposit (sec- party is deemed an *actor and must show his tion 2329 [Comp. St. § 4628]), one such being own title, for the suit is “in aid of the land scattered particles of gold found in the softer department." If neither establishes the req. covering of the earth. A placer discovery uisite title the judgment must so declare. will not sustain a lode location, nor a lode Rev. Stat. § 2326 (Comp. St. & 4623); Act discovery a placer location. As is said by March 3, 1881, c. 140, 21 Stat. 505 (Comp. St. Mr. Lindley,3 g 323:

§ 4625); Jackson v. Roby, 109 Ú. S. 440, 3 "Gold occurs in veins of rock in place, and Sup. Ct. 301, 27 L. Ed. 990; Perego v. Dodge, when so found the land containing it must be 163 U. S. 160, 167, 16 Sup. Ct. 971, 41 L. Ed. appropriated under the laws applicable to lodes. 113; Brown v. Gurney, 201 U. S. 184, 190, It is also found in placers, and when so found | 26 Sup. Ct. 509, 50 L. Ed. 717; Healey v. the lands containing it must be appropriated Rupp, 37 Colo. 25, 28, 86 Pac. 1015; Tonopah according to the laws applicable to *placers."

Fraction Mining Co. v. Douglas (C. C.) 123

Fed. 936, 941. If final judgment be given in And again (section 419):

favor of either party-whether the applicant “It is the mode of occurrence, whether in for patent or the adverse claimant-he may place or not in place [meaning in rock in place], file in the land office a certified copy of the which determines the manner in which it should judgment and then will be entitled, as re be located."

spects the area awarded to him, to go for(13-15] Location is the act or series of acts ward with the patent proceedings and to whereby the boundaries of the claim are have the judgment recognized and respected marked, etc., but it confers no right in the ab- as a binding adjudication of his exclusive sence of discovery, both being essential to a

right to the possession. Rev. Stat. § 2336 valid claim. Waskey v. Hammer, 223 U. s. (Comp. St. $ 4644); Richmond Mining Co. v. 85, 90, 91, 32 Sup. Ct. 187, 56 Ľ. Ed. 359; Rose, 114 U. S. 576, 585, 5 Sup. Ct. 1055, 29 L. Beals v. Cone, 27 Colo. 473, 484, 495, 62 Pac. Ed. 273; Wolverton v. Nichols, 119 U. S. 485, 948, 83 Am. St. Rep. 92; Round Mountain 489, 7 Sup. Ot. 289, 30 L. Ed. 474; Iron SilMining Co. v. Round Mountain Sphinx Mining ver Mining Co. v. Campbell, 135 U. S. 286, Co., 36 Nev. 543, 560, 138 Pac. 71; New Eng. 299, 10 Sup. Ot. 765, 34 L. Ed. 155; Last land Oil Cb. v. Congdon, 152 Cal. 211, 213, 92 Chance Mining Co. v. Tyler Mining Co., 157 Pac. 180. Nor does assessment work take the U. S. 683, 694, 15 Sup. Ct. 733, 39 L. Ed. 859; place of discovery, for the requirement relat- Perego v. Dodge, supra; Clipper Mining Co. ing to such work is in the nature of a con

v. Eli Mining Co., 194 U. S. 220, 232, 24 Sup. dition subsequent to a perfected and valid Ct. 632, 48 L. Ed. 944. claim and has "nothing to do with locating

The situation developed by the evidence or holding a claim before discovery." Union presented and admissions made in the course Oil Co. v. Smith, supra, 249 U. S. 350, 39 Sup. of the trial was as follows: At the outCt. 311, 63 L. Ed. 635. In practice discovery set the land was public and unappropriated, usually precedes location, and the statute and it remained such save as the locations treats it as the initial act. But in the ab- in question or some of them may have sence of an intervening right it is no objec changed its status. The lode locations were tion that the usual and statutory order is made, one in 1897 and the other two in 1907, reversed. In such a case the location be and the placer locations in September, 1913. comes effective from the date of discovery; The title under the latter already has been but in the presence of an intervening right it sufficiently traced. That under the lode la must remain of no effect. Creede & Cripple

cations passed to the Glasgow & Western Creek Mining Co. v. Uinta Tunnel Mining

Exploration Company soon after they were Co., 196 U. S. 337, 348–351, 25 Sup. Ct. 266, made, and the defendant, Ralph, claims un49 L. Ed. 501, and cases cited; Union Oil Co. der a deed executed by that company's liquiv. Smith, supra, 249 U. S. 347, 39 Sup. Ct.

dator in 1914. The principal controversy 308, 63 L. Ed. 633.

was over the presence or absence of essen. When an application for a patent to miner- tial discoveries within the lode locations, al land is presented at the local land office it being denied on one hand and affirmed on and an adverse claim is filed in response to the other that a vein or lode of rock in the notice required by the statute (section

+298 2325 (Comp. St. § 4622]) further proceedings place bearing valuable mineral was discoverupon the application must be suspended to tions were made. It was not controverted,

ed in each location before the placer locaawait the determination by a court of compe- but, on the contrary, conceded, that that tent jurisdiction of the question whether ei- point of time was the important one in the • Lindley on Mines, 3d Ed.

inquiry. Thus when the presiding judge in

(40 Sup.Ct.) dicated his view by saying, “My idea is that , latter were persuasive, but it was not withyou can't take advantage of any discoveries out noticeable infirmities, among them the made since the placer locations, and I don't following: The defendant testified that no believe there can be any dispute about that,” ore was ever mined upon any of the lode counsel for the defendant responded, “No, , claims, and that "there was no mineral exyour honor, there is none," and on another posed to the best of my [his) knowledge occasion counsel said, “We are undoubtedly which would stand the cost of mining, translimited to proving that there was a discovery portation and reduction at a commercial of mineral in place on each of our lode profit.” In the circumstances this tended claims prior to the location of the placer to discredit the asserted discoveries; and of claims.” In all particulars other than dis- like tendency was his unexplained statecovery the regularity and perfection of the ment, referring to the claims grouped in this lode locations were conceded. Closely con- patent application, that "some of them have nected with the controversy over lode dis- not a smell of ore, but they can be located coveries was another over the applicability and held on the principle of being contiguand effect of section 2332 of the Revised ous to adjacent claims”-an obviously misStatutes (Comp. St. § 4631), but it will be taken view of the law-and his further passed for the moment and separately con- i statement, referring to vein material particsidered later. As to the placer claims, it ularly relied upon as a discovery, that he was shown that they were based upon ade "would hate to try to mine it and ship it." quate discoveries of placer gold within their As respects the initiation and working of limits, and counsel for the defendant an

*300 nounced, “We don't deny this ground is of the placer *claims, the plaintiffs' evidence inplacer character.” Their boundaries were

dicated that the locators entered openly, properly marked, and the requisite notices made placer discoveries, performed the reqwere posted and certificates recorded. The uisite acts of location, excavated several only questions respecting their validity that shafts in the "wash” from 35 to 57 feet in were presented and need present mention depth, ran drifts from the bottom along the were, first, whether at the time the placer bedrock, and mined a considerable amount locations were made the lode locations had of placer gold; and that these acts covered become valid and effective claims, thereby a period of between two and three inonths. precluding any adverse location of the same None of this was contradicted; and there ground, and next, if the lode locations had was no evidence that the locators met with not then become valid and effective, whether any resistance or resorted to any hostile, the placer locations were initiated and made fraudulent or deceptive acts. But there was through wrongful intrusions or trespasses evidence of such ownership of buildings, upon any actual possession of the lode claim- comparatively recent prospecting, and mainant. The defendant, as is admitted in his tenance of a watchman, on the part of the brief in this court, did not claim that any lode claimanto as made it a fair question lode or vein was or should be excepted whether he was in actual possession when from the placer claims, but only that they the placer locators entered. That he was were of no effect for the reasons just indi. in possession of the buildings and the ground cated.

where they stood was made certain, but that .299

he had any actual possession beyond that *The evidence bearing upon the presence or was reasonably debatable under the evidence. absence of lode discoveries 4 was conflicting. The buildings were all on the same claim That for the plaintiffs tended persuasively and covered only a part of it. One was a to show the absence of any such discovery mill formerly in use but then dismantled before the placer claims were located, while and stripped of its machinery. All had been that for the defendant tended the other way. used in connection with mining operations Separately considered, some portions of the upon other claims, but the operations had

then been suspended. The buildings were * The following extracts from Chrisman v. Miller, 197 U. s. 313, 322, 25 Sup. ct. 468, 470 (49 L. Ed. not disturbed by the placer locators, nor was 770), show what constitutes an adequate discovery: there any attempt to appropriate them. A

"The mere indication or presence of gold or silo watchman was in charge, but so far as apver is not suficient to establish the existence of a lode. The mineral must exist in such quantities pears he made no objection to what was as to justify expenditure of money for the develop- done. Although a witness for the defendant ment of the mine and the extraction of the mineral." and in his employ, he was not interrogated

"Where minerals have been found and the evidence is of such a character that a person of ordi

upon this point. Of course, ownership of the nary prudence would be justified in the further ex-buildings did not in itself give the lode claim. penditure of his labor and means, with a reasonable ant any right in the land or prevent others prospect of success, in developing a valuable mine, from entering peaceably and in good faith to the requirements of the statute have been met."

“The facts which are within the observation of avail themselves of privileges accorded by the the discoverer and which induce him to locate, mineral land laws; but the presence of the should be such as would justify a man of ordinary prudence, not necessarily a skilled miner, in 5 The lode claimant at that time was either the the expenditure of his time and money in the de- liquidator of the Glasgow & Western Exploration velopment of the property."

Company or the company itself.



were therefore invalid." And the court in duildings *and his relation to them did have a charging the jury said: bearing upon the question of actual possession-a pronounced bearing as respects the

"The burden is on the plaintiffs in the first place where the building stood and a lesser instance to show that when they went on these

claims to locate the placers the ground was bearing as respects the other ground. Even if the lode claimant was in actual time no valid, subsisting location where their

open to location, and that there was at the possession of all, it still was a disputable discoveries were made." question under the evidence whether there had not been such acquiescence in the acts It therefore is plain that the burden of of the placer locators in going upon the proof was dealt with and carried in a manground, making placer discoveries and mark- ner which does not admit of criticism by the ing their locations as gave them the status defendant. of lawful discoverers and locators rather [17] It is objected also that the court re than wrongful intruders or trespassers, that fused to direct verdicts for the defendant. is to say, the status of explorers entering But what has been said sufficiently shows by permission and then making discoveries. that, in our opinion, the evidence presented See Crossman v. Pendery (C. C.) 8 Fed. 693. several disputable questions of fact which it

The questions of fact to which we have was the province of the jury to determine. adverted were all submitted to the jury un- This was the view not only of the judge who der a charge which was comprehensive, presided at the trial but of another judge couched in plain terms, and in substantial who in overruling the motion for a new trial accord with the legal principles hereinbefore said: stated. And, while the defendant criticizes

"I think that not only is there substantial some portions of the charge, we think they evidence to support the verdict, but the preneither included nor omitted anything of ponderance is upon that side." which he rightfully can complain. As has been said, the jury returned general ver- Were we less satisfied than we are upon the dicts for the plaintiffs, and also special ver-point we should hesitate to disturb the condicts finding that no lode had been discov- curring conclusions of those judges. ered within any of the lode locations before the placer ones were made.

[18] *It is urged that the court erred in Dot [16] But it is objected that the court, in- holding that the placer claimants had adstead of requiring the plaintiffs to take the mitted the validity of one of the lode locaburden of proving the absence of essential tions by relocating the ground as a lode claim. lode discoveries, subjected the defendant to A short statement of what was done will the burden of proving that there were such show, as we think, that it did not involve any discoveries. This is not in accord with the such admission. After the placer claimants record. It there appears that the plaintiff's made their placer discovery a representative undertook at the outset to establish the ab of theirs posted on the ground a notice stating sence of any lode discovery and persisted in that they had relocated it as a lode claim. that course, a large, if not the larger, part The next day he substituted another notice of their case in chief being directed to that stating that they had located it as a placer point. When they rested the defendant mov- claim. The first notice did not accord with ed that the evidence produced by them “as their discovery and the other did. Nothing to the absence of lodes, or the failure or

was done or claimed under the first and all inability of the witnesses to find or discover the subsequent steps were in accord with the

other. Evidently the first was posted by mislodes or mineral-bearing *rock in place” with take and the other as the true notice. No one in the lode locations be stricken out because was misled by the mistake and it was promptnot within the issues tendered by the plain-ly corrected. In these circumstances, the tiffs' complaints. The motion was denied first notice was of no effect and no admission and in that connection the court observed could be predicated of it. Zeiger v. Dowdy, that the burden "undoubtedly" was on the 13 Ariz. 331, 114 Pac. 565. plaintiffs not only to show their own placer [19] The further objection is made that no discoveries, acts of location, etc., but also probative force was given to recitals of dis“that the ground in dispute was open to loca- covery in the recorded notices of location of tion;" and the court added, “Plaintiffs have, the lode claims. The notices were admitted so far as the record discloses, always insist in evidence and no instruction was asked or ed that there was no lode discovery, and that given respecting the recitals. In one nothing the only discovery was of placer." There is said about discovery, and what is said in was also an admission in the defendant's the other two is meager. But, passing this, requested instructions that the plaintiffs "in the objection is not tenable. The general rule their case in chief” introduced evidence tend- is that such recitals are mere ex parte selfing to show that “the ground comprised in serving declarations on the part of the locathe lode mining claims

contained tors, and not evidence of discovery. Creedie no lodes, veins or mineral-bearing rock in & Cripple Creek Mining Co. v. Uinta Tunnel place and

that said lode locations Mining Co., 196 U. S. 337, 352, 25 Sup. Ct


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