
    VAN ZANDT, Trustee, v. THE ARGENTINE MINING CO.
    
      (Circuit Court of the United States, District of Colorado
    
    
      June 16, 1881
    
    
      Ejectment.)
    
    Mining Claim—Defective Location Certificate may be Amended —Paper Title. When there is conflicting evidence touching the facts necessary to make valid the original location of a mining claim, the paper title of grantees claiming under the original locator will go to the jury. A location certificate which is fatally defective, in omitting reference to natural object or permanent monument, may go to the jury in connection with an amended certificate correcting such defect.
    Practice—Amendment at the Hearing. Plaintiff having declared for the entire property, it was developed on the trial that in consequence of a defective deed, he had title to only two-thirds of the claim: Held, that plaintiff could not, on this declaration, recover for two-thirds, and that the person holding title to the other third of the claim might not, without his consent, be joined as party plaintiff, yet plaintiff might amend his complaint so as to demand but two-thirds.
    Mining Claim—Prerequisites to Location. Under the statutes, Federal and state, no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim; and a discovery shaft must be sunk thereon to the depth of at least ten feet. The mineral or ore so discovered must be in position—in the form of a lode—and not in a broken and fragmentary condition, intermingled wiib slide and debris on the surface. Discovery of ore after location, in a different part of the claim, will not avail.
    The Burden. Is on the plaintiff to establish the fact that ore was so found in his discovery shaft, and that the same lode is continuous to the ground in controversy.
    Evidence, what shall be of Prior Location. Proof of the date of plaintiff’s location, the others not being shown, and the fact that plaintiff’s location is excepted from defendant’s patents, will raise a presumption that plaintiff’s location was first made.
    The Top or Apex, on a Junior Discovery—Senior Location on the “ Dip” will hold. Ordinarily the owner of a mining claim in which is found the top or apex of a lode, may follow the vein within or without his side lines on its “ dip ” to any depth ; yet if the same vein has been previously discovered and located on the “dip,” such discovery will prevail against a junior discovery, though located on the apex of the vein.
    Action to recover possession of the Adelaide mining claim, in California District, Lake county, Colorado.
    Plaintiff offered evidence to prove that the claim was located by Walls and Powell, in the year 1875. As to marking the boundaries of the claim on the surface of the ground, and the finding of valuable ore in the discovery shaft, the evidence was slight; and defendant objected to plaintiff’s record title, on the ground that these facts were not shown. As there was some evidence on both points, the court held, that the paper title should be received. In the original certificate of location the description of the claim contained no reference to a natural object or permanent monument; but this was corrected in an amended certificate, and both were received, although it was held that the first was fatally defective.
    Having declared for the entire interest in the claim, plaintiff failed to show title from the original locators to an undivided one-third interest. One of the deeds upon which he relied was not sufficienty proved, and upon defendant’s objection it was excluded. Thereupon he moved for leave to make the grantor in that deed, in whom the title to the said one-third interest would rest (assuming that instrument to be void) a party plaintiff in the suit.
    And this was denied by the court:
    First—-Because the deed, for ought that appears, was effectual between the parties to it to transfer the property; and,
    Second—A stranger should not be made a party to the suit, without his knowledge and consent, which is not shown.
    Plaintiff then suggested to the court, that upon his declaration for the whole interest, he could take a verdict for two-thirds, pursuant to sixth paragraph of section 251 of the Code of Procedure of the state. But the court was of the opinion that section 249 of the code, which requires the plaintiff to state the interest claimed by him, should control, and that plaintiff having declared for the whole, could not recover an undivided interest. Nevertheless, the plaintiff was allowed to amend his complaint at the trial so as to demand but two-thirds interest, and the court said that this was often done. For, the plaintiff having at first asked judgment for the whole, the defendant cannot now be surprised that he asks only a part.
    In the further trial of the cause it appeared that the defendant claimed under two locations, called the Camp Bird and Pine, which it held by patent from the Government. Plaintiff’s claim is in the general course north and south, or, to be exact, north 33o io' east. Defendant’s two claims overlapping the other somewhat transversely, are in the general course east and west. The contesting claims have the relation of the jaws of shears, and the ground in controversy is that included in the space of intersection and a small part of the Adelaide claim immediately north of the intersection. The discovery shaft of the Adelaide claim is or was at the north end of the claim, and some 300 or 400 feet from the ground in controversy. By later operations and the erection of a mill and ore-house in the vicinity, it had been filled, and the position of it in the claim was not very well shown. Between this shaft and the ground in controversy there were no openings to prove that the lode extended in that direction, and whether it did so extend was strongly controverted-Defendant gave evidence to prove that no mineral was found in the .discovery shaft, and that the condition of the ground was such, that if any was found there, it was broken and fragmentary, or in other words, of the character of float mixed with the slide on the surface of the mountain. It appeared, however, that plaintiff and his grantors had maintained possession of the premises from the first; had made valuable improvements on the claim, and had carried on extensive mining operations at and near the ground in controversy.
    The Camp Bird and Pine discoveries were west of the ground in controversy two hundred or three hundred feet, and, as defendant contended, on the top and apex of the lode, which at that point extended almost directly across those locations. The defense, by answer, to the support of which many witnesses were brought into Court, was that the ore in controversy was a part of the vein which defendant held by its top and apex. If what has been said to explain the position of the claims is intelligible, it will be apparent that in this view the Adelaide location extended across the vein and on its dip, below the top and apex, which was to the west of that location. And as the Adelaide location was first in time, it became a question whether a location so made and otherwise sufficient would be valid against a junior location on the top and apex of the vein. This having been ruled as expressed in the charge to the jury, much testimony as to the top and apex of the vein, and the continuance of the vein to the ground in controversy, was withheld, and the case stood on the validity of plaintiff’s location—
    Whether a vein in place was found in the discovery shaft of that location; and,
    Whether the vein, if found there, extended to the ground in dispute.
    The court charged the jury as follows
   Hallett, J.

The questions to be determined on the evidence relate to the plaintiff’s location, which he calls the Adelaide.

As to the work on the ground necessary to a valid location, the statute of the state provides, among other things, that a discovery shaft shall be sunk to the depth of at least ten feet, or deeper if necessary to find a well-defined crevice. And the Federal statute declares that no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.

The position of the plaintiff is, that Walls and Powell, the locators of the Adelaide claim, found a lode or vein in the discovery shaft sunk by them, and that position is controverted by defendant. I do not recall anything said by witnesses as to a crevice in that shaft; but there is some testimony to the effect that ore bearing silver was found there. If you find from the evidence that such ore was taken from the Adelaide discovery shaft, it is important to consider whether it existed in mass and position; or in other words, in the form of a vein or lode; or, on the other hand, in a broken and fragmentary condition, intermingled with the slide and debris on the surface of the mountain. For it rests with the plaintiff to show that ore was found in the discovery shaft, and also that the same body, vein or lode extends to the ground in controversy. Of course, if ore was found in the discovery shaft, and the ore so found was broken and fragmentary, it cannot be said that a body of ore—a vein or lode— was found in that shaft which extends to the ground in dispute.

So that, if you find that no ore was discovered in the discovery shaft of the Adelaide claim, or, if ore was found in that shaft, and it was broken and fragmentary, your verdict will be for the defendant.

And in this view (that is, assuming the facts to be as stated,) the circumstance that plaintiff’s grantors afterwards developed the body of ore in controversy higher up the mountain side, will not affect the result. For a location rests on what may be found in the discovery shaft. And if nothing is found there, or if what is found there does not extend beyond the limits of the shaft, the discovery of a body of ore elsewhere in the claim will not avail.

But if a vein or lode was found in the discovery shaft of the Adelaide claim, and it extends throughout the ground in controversy, the plaintiff may prevail.

Something has been said as to whether the locators complied with the other provisions of the statute, relating to posting notice of the discovery on the claim, staking the boundaries, all of which must be shown in evidence, to constitute a valid location.

If you find these things to be proved, and that a vein or lode was found in the discovery shaft, the question remains, whether such vein or lode extends to the ground in controversy. Upon the evidence here, it may come to the point whether the lode of ore found in the several shafts on the hill was also found in the discovery shaft of the Adelaide claim. Nevertheless, if you believe from the evidence that a vein or lode was found in the discovery shaft, and that it is not the same as the vein or veins found in the shafts on the same claim, higher up the hill, but that it extends throughout the claim, the plaintiff may prevail.

This being shown, although defendant’s locations may appear to you to be along the line of the top, apex or outcrop of the vein, it cannot prevail against a senior location on the dip of the lode. That plaintiff’s location is of earlier date than either of defendants, may be assumed upon two grounds: First, the date -is shown as August, 1876, and in the absence of evidence we cannot presume that the others are of earlier date. Second, in the patent put in evidence by defendant, the Adelaide surface ground is excepted from the grant. This may be prima facie evidence that the Adelaide claim is of older date than the others; but it is not evidence of anything more.

In taking the patents in that form there was no recognition of the plaintiff’s right, or the validity of the Adelaide claim; nor is the defendant in any way precluded thereby from contesting that claim.

Chas. S. Thomas, Thos. M. Patterson, Jas. B. Belford, attorneys for plaintiff.

II. C. Thatcher, G. B. Reed, attorneys for defendant.

The exception in the patent to the Pine claim, to which reference has been made by counsel, does not in any way relate to the matters in controversy here. It should not have any weight whatever with you. The matters in issue are as herein stated, and you will determine them according to the rules now given you, and by the preponderance of evidence. The burden is on the plaintiff to establish every material fact, as hereinbefore declared. •

The jury returned a verdict for plaintiff.  