Musser v. Fitting

SHAW, J.

Action to quiet title to a mining claim of which plalritlfP claimed ownership and right to possession.

Judgment went for plaintiff, from which, and an order denying his motion for a new trial, defendant Salisbury appeals.

In January, 1910, plaintiff duly located a lode mining claim which he designated as the Lead Hill Lode Mining Claim, the

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exterior boundary lines of which conflicted with and overlapped certain claims known as the Monster No. 4 Mining Claim and Monster No. 5 Mining Claim, ownership of which was claimed by appellants. This conflict, as between the Lead Hill Lode Mining Claim and Monster No. 4 Mining Claim, covered 9.54 acres; and as to the former claim and Monster No. 5 Mining Claim, covered 7.03 acres.

By answer, Fitting disclaimed any interest in the premises, and defendant Salisbury, in addition to answer denying the material allegations of the complaint, alleged that in April, 1907, J. P. Fitting duly located and perfected his claim to Monster No. 4 and Monster No. 5 Mining Claims, title to which claims Fitting conveyed to him by deed duly executed on December 3, 1909, since which date said defendant has been the owner in possession and (save a short time during the pendency of an order restraining him from so doing), engaged in developing and working the same and extracting ore therefrom; that Fitting in making said location, and down to the time of such conveyance to defendant Salisbury, had complied in all respects with the laws, rules, and regulations pertaining to the location and acquisition of mining claims and mineral locations upon the public domain, and during the year 1909 had done or caused to be performed upon each of said claims work and labor of the value of one hundred dollars.

Plaintiff’s right depends upon whether or not the expenditure of one hundred dollars upon each of said claims was made during the year 1909 in the improvement and development thereof. If not, it is conceded that the former locator and his grantee, appellant here, forfeited all right thereto, leaving the property free and open to location by plaintiff. Upon this issue the court found that on April 25, 1907, J. P. Fitting was a member of a firm or association known as the J. P. Fitting Company, which employed Fitting to locate mining claims, and one D. H. Duncan was likewise employed by said company, who, on said date and while so employed, located two claims known as Monster No. 4 and Monster No. 5, posting notices thereon, wherein J. P. Fitting was named as the locator thereof; that thereafter, on July 29, 1907, J. P. Fitting executed a deed of conveyance whereby he conveyed to said J. P. Fitting Company all of his right, title, interest, and estate in and to each of said claims, and from said date