
    187 F. 385
    NOME & SINOOK CO. v. SNYDER.
    No. 1,907.
    Circuit Court of Appeals, Ninth Circuit.
    May 22, 1911.
    
      F. E. Fuller, O. D. Cochran, W. A. Gilmore, Metson, Drew & Mackenzie, and E. H. Ryan, for plaintiff in error.
    James W. Bell, for defendant in error.
    Before GILBERT and MORROW, Circuit Judges, and WOLVERTON, District Judge.
   WOLVERTON, District Judge

(after stating the facts as above).

It is shown by the testimony of Jafet Lindeberg that he, together with Kjellmann, Spring, Southward, and Jernes, formed a partnership called the “Nome Mining & Development Company, Limited, to get mining claims around the vicinity of Nome, Penny river, and outside of that,” and that the claim sought to be established by plaintiff is one of the claims located by this partnership. The notice shows that the “undersigned” have located 100 acres of placer mining ground described as Pocahontas, Querropas, Ratapan, Seneca, and Ticonderoga. Then follows a description which runs around all the claims. The concluding part of. the notice is as follows: “Located 24th day of January, A. D. 1899, by Nome Mining & Development Co., Ltd., Amasa Spring, Jr., General Manager.”

Attached to the notice iá a plat showing the Ticonderoga on the west, next east the Seneca, and east of that the Ratapan, all in square form. The Querropas is still east of the latter, in rectangular form. Each of these are described as containing 20 acres. East of the Querropas, along its northern extremity, is located lot 2, and north of that lot 1, each of which contains 10 acres and is designated the Pocahontas, all containing 100 acres. E. Wallace Smith, who was the agent of the company and was left in charge after the alleged location was made, testified that the locations were not made out as individual locations, nor was each location made separate, but were made in a group.

Generally, it may be said the proof shows that there was a marking of this claim at the time so that it could be readily traced upon the ground. Some of the stakes, however, were planted in snow and others in ice upon a stream. Later in 1907 one Gibson made a survey of the claim, retracing quite closely the boundary of the original location, identifying a number of the original stakes, but by no means all of them. This witness relates that he panned out quite a lot of gold in the spring of 1899 at the mouth of Center creek. It does not appear upon what part of the claim this panning was done. Indeed, it is only by inference that we may know that it was done on the claim at all. Lindeberg says that he discovered gold on the claim in 1899, and panned out some in 1898, and that some leases were given to people to rock on the claim on both sides of Snake river, and especially in a little gully running through Pocahontas No. 2, and that some “Laps” had a privilege of mining down below Pocahontas No. 1, who reported a great find in the gulch in 1899, This is as near as the evidence discloses the location of the discovery of any gold or other minerals on the claim anywhere. No evidence was offered to show that assessment work had been done upon the claim at any time subsequent to its location, or that any mining was done thereon since by plaintiff or its predecessors.

The location of defendant’s group of claims was made on and subsequent to July 7, 1900.

The principal ground upon which the nonsuit was granted is that the alleged location by the Nome Mining & Development Company, Limited, was void because it was made in pursuance of a scheme by which one person would acquire more area than is allowed by law under one location, and therefore a fraud upon the government.

The strong i contention of the plaintiff is that by showing discovery and location it made a prima facie case which ought to have been submitted to the jury. This would be true, waiving mention of the assessment work; but there must be a valid location. Of this we will inquire.

The plaintiff corporation is the successor to the Nome Mining & Development Company, Limited, by mesne conveyances, and claims under it and by virtue of the location that it made. The agreement by which the locating company was formed is before the court. It evidences a joint-stock company, formed by Kjellmann, Spring, Southward, Lindeberg, and Jernes; the stock consisting of 4,000 shares, of which Kjellmann was entitled to 2,050, Spring 1,334, Southward 614, Lindeberg 1, and Jernes 1, the object being to mine and develop the Cape Nome mining district, Alaska. There was no incorporation of the company; the agreement alone forming the association. Now, this company as the company, not by the members in their individual capacity, made one location of 100 acres; for the notice so states, and the evidence is in confirmation thereof. Under the larv an individual cannot acquire more than 20 acres of mining ground by one location; but an association of persons may make joint location of not to exceed 160 acres.

Section 2330 of the Revised Statutes (30 U.S. C.A. § 23) provides that: “Legal subdivisions of forty acres may be subdivided into ten-acre tracts; and two or more persons, or associations of persons, having contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry thereof; but no location of a placer claim, made after the ninth day of July, eighteen hundred and seventy, shall exceed one hundred and sixty acres for-any one person, or association of persons, which location shall conform to the United States surveys.”

And section 2331 (30 U.S.C.A. § 35 and note): “ * * * All placer mining claims located after the tenth day of May, eighteen hundred and seventy-two, shall conform as near as practicable with the United States system of. public land surveys, and the rectangular subdivisions of such surveys, and no such location shall include more than twenty acres for each individual claimant.”

We are to inquire how and in what manner the association of persons may make location of more than 20 acres. In analyzing these statutes, Mr. Lindley observes that the unit or individual location is 20 acres, and that not more than 160 acres may be embraced within one location by an association of persons, of which there must be at least eight. Lindley on Mines, § 448, p. 790. The Supreme Court of Colorado entertains a like view, for it says in Kirk et al. v. Meldrum, 28 Colo. 453, 460, 65 P. 633, 636: “The construction of the act of Congress with respect to placers has universally been that the act makes provision for such locations, and prescribes the area which may be located;' in other words, the area is limited to 20 acres to each locator, and that a number of individuals may locate a claim in common, not exceeding 20 acres to each person, and not exceeding 160 acres in any one claim.”

The Land Department, by a published regulation, has so construed section 2331: “That from and after May 10, 1872, no location made by an individual can exceed 20 acres, and no location made by an association.of individuals can exceed 160 acres, which location of 160 acres cannot be made by a less number than eight bona fide locators.”

So it is said in Morrison’s Mining Rights (13th Ed.) 215: “It requires eight bona fide locators to lawfully claim 160 acres.”

See, also, Costigan on Mining Law, 173.

This court, speaking through Morrow, Circuit Judge, has given its sanction to such interpretation in Cook v. Klonos, 164 F. 529, 537, 90 C.C.A. 403, 411, in language both pointed and explicit, as follows: “The prohibition contained in section 2331 against the location of ‘more than twenty acres for each individual claimant’ is direct and positive, and limits the amount of ground that any one claimant may appropriate, - either individually or in association claim, at the time of the location.”

It follows, therefore, with exact logic, that five persons may by means of proper association make valid location of 100 acres in one claim, so that it did not include more than 20 acres to each individual. This does not mean that while the five may, by associating themselves together, locate 100 acres in one claim, one or two of the five can acquire by such location substantially all of the claim, leaving the others with proportionately a very small or nominal interest therein, but that each must acquire an interest not to exceed 20 acres.

Any scheme or device entered into whereby one individual is to acquire more than that amount or proporti'on in area constitutes a fraud upon the law, and consequently a fraud upon the. government, from which the title is to be acquired, and any location made in pursuance of such a scheme or device is without legal support and void. The proposition seems to be well established. . Mitchell v. Cline, 84 Cal. 409, 24 P. 164; Gird v. California Oil Co. (C.C.) 60 F. 532; Durant v. Corbin (C.C.) 94 F. 382; Cook v. Klonos, supra.

In the latter case the court says on this subject: “The scheme of using the names of dummy locators in making the location of a mining claim for the purpose of securing a concealed interest in such claim appears to be contrary to the purpose of the statute; but when this scheme is used to secure an interest in a claim for a single individual, not only concealed, but in excess of the limit of 20 acres, it is plainly in violation of the letter of the law, and \yhen, as in this case, all the' locators had knowledge of the concealed interest and were parties to the transaction, it renders the location void.”

Now, in the case under review, the very articles of agreement put the claimant beyond the pale of the law, while the testimony establishes the illegality of the scheme beyond peradventure. The location, although made in the name of the association, two of the parties thereto were to have but a nominal interest in the claim, one less than one-fifth, one largely more than one-fifth, and one more than one-half, giving the latter, of course, more than 50 acres proportionately in the claim. So that, regardless of the discovery, regardless of the marking on the ground, or even the assessment work, the claim was void, and could not avail the locators, in any stage. The location being void, the ground remained as if none had been made, and was unappropriated mineral land, subject to location by others. This is sufficient to dispose of the controversy, without passing specifically on the effect of failure to prove that the assessment had been regularly done, or other points made in the brief of counsel.

The judgment of the trial court will be affirmed.  