McCormick v. Baldwin

McFarland, J. This is an action of ejectment. The premises described in the complaint consist of certain quartz mining property called the Grade Consolidated Quartz Mining Claims. They include three distinct mining locations or claims adjoining each other, called the “Big Blue” (or Grade) on the east, the “Guernsey” in the center, and the “East Orleans” on the west. The defendant asserts title to certain quartz mining claims which conflict with and include portions of said “ Guernsey” and “East Orleans” claimed by plaintiff. The verdict and judgment were for defendant; and from the judgment and order, denying a new trial plaintiff appeals.

In the transcript and briefs many points touching mining law are made and suggested; but there is only one point which we deem it necessary to notice in detail, and that arises out of certaiu instructions of the court about the construction of the words “resume work” in section 2324 of the United States Revised Statutes.

[228]The mining locations upon which appellant bases his right to the premises in controversy were made in the year 1885, and prior thereto. There is no pretense of evidence that he ever worked on the Guernsey or East Orleans; or that any work was ever done by him on the Big Blue prior to the year 1892. There is some evidence of some work done by appellant in a tunnel on the Big Blue in 1892; but from all the evidence in the case the jury must have found that if there was any work done on the Big Blue in 1892 it was entirely insufficient to hold the three claims under the United States statute, even though the work on the Big Blue could be applied to the other claims. But it was abundantly shown that the tunnel in the Big Blue in which appellant claimed to have worked in 1892 was of no use whatever in developing either of the other claims, and therefore could not be applied to the latter.

Respondent made his locations, which included parts of the Guernsey and East Orleans, in February and April, 1893;. and the Guernsey and East Orleans were then clearly subject to relocation, unless appellant, after the expiration of the year 1892, had resumed worh within the meaning of the statute before respondent made his locations. Upon this subject the appellant testified that “ on the first day of January, 1893, plaintiff performed about three hours work on each of said three locations,” and that on said day and the day following — January 2d — he dug a shaft on the Orleans about six feet deep. No more work was done by him afterwards. He contends that by these acts he had resumed work so as to invalidate any attempted hostile locations. Upon this subject the court gave several instructions, the substance of them being this: That a party cannot hold a mining claim for several years without doing in any year the work required, by simply going on it at the beginning of each year and doing a few hours work with no bona fide intent to comply with the statutory requirement as to the amount of work to be done. In the instruction No. 11 the word “ and ” is