Richards v. Wolfling

McFarland, J. The defendant filed an application in the United States Land Office for a patent to a quartz mining claim fifteen hundred feet in length and six hundred feet wide, called the “Scorpion.” The plaintiff filed in said land office an adverse claim, averring that he was the owner of a quartz mine called the “Hope mine,” and that a portion of the Scorpion mine claimed by defendant conflicted with a portion of said Hope mine. The contest was referred to the superior court, where the plaintiff brought this action, and the court found in favor of plaintiff for the portion of the mining ground in conflict.

Defendant appeals from the judgment and from an order denying a motion for a new trial.

Plaintiff introduced evidence tending to show ownership of the mining ground in contest, first under a location made by Alexander Araya and others in June, 1872, and also under a relocation made by said Araya and one Samuel Ralston on [196]the 7th of April, 1880. Many of the exceptions relied on by appellant refer to said' location of June, 1872, and to evidence tending to show the continued ownership of plaintiff’s grantors under that location down to the second location of April, 1880. We think that plaintiff showed a good location made in June, 1872, a conveyance by the other locators to said Araya, and a full possession by Araya under mining laws and customs down to April, 1880, and that if plaintiff could have shown those facts under the complaint the said exceptions would not be tenable; but as the complaint seems to be based expressly upon the second location of April 7,1880, the testimony as to the location of June, 1872, perhaps should not be regarded at all, and therefore the exceptions as to that testimony need not be here examined.

On the 7th of April, 1880, the said Araya and said Samuel Ralston relocated the said Hope mine, the description being the same as in the location of 1872, except that the width was made only four hundred and fifty feet instead of six hundred feet, and their notice of location contained this clause: “This claim was recorded in 1872, and has been worked and held up to date.” It is not disputed that this location of April, 1880, was made in accordance with the laws of Congress and the customs of the district, or that it was held by a proper mining possession, unless the whole location was invalid and void because a portion of the claim was afterwards patented as agricultural land to one St. Cyr, as hereinafter mentioned. The Hope mine runs generally in a northerly and southerly direction, and the northerly half of the claim (that is about one halt) was on section 30 of a certain township, and the southerly half was in lot 1 of section 31, which lies immediately south of sai I section 30. At the time of the location it does not appear that lot 1 of section 31 had been patented, but it does appear that about three months afterwards a patent issued from the United States government to said St. Cyr for said lot 1. The northerly part of the mine in section 30 still is public land of the United States. Nearly all the work that has been done by plaintiff and his grantors on said mine is on the southerly portion of it, and upon the ground which lies within said section 31, after-wards patented to St. Cyr; and, as before said, there is no