Packer v. Heaton

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action to recover the possession of a mining-claim, and damages for the detention thereof. The defendants had judgment in the Court below, and the plaintiffs appealed.

The main question in this case has relation to what constitutes a forfeiture, or abandonment, of a claim, under the regulations of that particular locality. It appears that in October, 1854, certain rules and regulations were adopted at a meeting of the miners at that point, the fifth of which is as follows:

“ All claimants or companies shall work, or cause to be worked, his or their claims at least two days in every ten, from the first day of May to the first day of November.”

It appears that the ground in dispute was located by defendants in August, 1854, and a large amount of work done during that year, in the sinking of shafts, to reach the deposits below. But from the great depth of the diggings, and the inflow of water into the shafts, it was found impossible to work the mine successfully without the aid of machinery propelled by steam. The last work upon the premises, by defendants, was done about the fourth of July, 1855. On the thirteenth of August, 1855, the plaintiffs located the claim, But between the fourth of July and the twentieth of August, when the defendants recommenced work upon the ground in dispute, they were engaged in efforts to procure the machinery necessary to prosecute their labors. At the request of the plaintiffs, the Court instructed the jury, that, though the defendants were first to locate the claim, yet, if they subsequently abandoned it, and the same was located by the plaintiffs while it was so abandoned, and the plaintiffs had complied with all the rules, regulations, and customs of the locality, up to the time of bringing the suit, then the plaintiffs were entitled to recover. The Court refused to instruct the jury, at the request of plaintiffs, that the unsuccessful efforts of defendants to procure machinery could not avail them as an excuse for not working upon the claim, as required by the rules; but, at the request of defendants’ counsel, instructed them, that if the defendants were the prior possessors of the claim, and, at the time the plaintiffs located the same, were engaged in efforts to procure the necessary machinery, and did procure the same within a reasonable time, then the defendants were entitled to hold the claim against the plaintiffs.

The question as to the validity of this mining rule does not [570]