SLAVONIAN MINING CO. V. PERASICH.
-the vacating of the order of satlsfaction,-and is between the original parties; no rights of third parties have intervened. 2 Jones, Mort. 1668. I think, too, as was held in passing upon the demurrer, that section 1300 of the Compiled Laws of Nevada, which gives a remedy by petition to the purchaser at execution sale, on failure of title, etc., is a rule of decision, and that we are bound to carry it out so long as the remedy provided is substantially in accordance with the modes of equity prucedure. Motion denied. SAWYER, C. J., concurs.
(Oircuit Oourt, D. Net>ada. May 16, 1881.)
1. MJliIING LAW-AllENDlmNT-SECTION 2324, REv. 1ST., JANUAlty 22, 1880. This amendment does not act retrospectively, so as to save a claim from a forfeiture incurred before its passage.
There cannot be any relocation, before the period within which work is required has expired, which can be made valid a failure to work on the part of the original locators.
3. SAME-RESUMPTION OF WORK. There be a bona fide attempt, at least, to resume. Threats seven miles from the claim, without any act towards carrying them out, are not a sufficient excuse for non-performance. .
Hdd, also, that if the relocators had entered, and were in actual possession after a forfeiture, although they had not relocated, the original locators would have no right to make a forcible entry for the purpose of resuming work.
George E. Harpham, for plaintiff. Walter H. Tompkins and A. G; EJlis, for defendants. HILLYER, D. J. This is ejectment for a mining cla-im in Columbus mining district, Nevada. A jury has been waived by written stipulation. It is submitted to the court mainly upon an agreed statement of facts; the only dispnted facts
being in regard to the plaintiff's excuse for not doing work in 1880, after the claim was forfeited under the mining laws of the United States. It is agreed that no work was in fact done on the claim by the plaintiff after October, 1878. The claim was originally located January 3, 1876. January 22, 1880, congress amended the mining law by adding the following words to section 2324, Rev.. St.:
"Provided, that the period within which the work required to be done annually on all unpatented mineral claims shall commence on the first day of January succeeding the date of location of such claim: and this section shall apply to all claims located since the tenth day of May, A. D. 1872,"
It was faintly argued that this proviso gave the plaintiff the whole of the year-1880 in which to do work, although none had been done in 1879. The object of this proviso was to makeltIli:il.niforrn psriod fortheannu8I1; work on all' claims located since May 10, and fixed the first of January next succeeding the' dite of as the time of its commeneeml(IDt. A located, as' this 'was, January 3, tS76, would not require any labor to be done on it under this provlso'bef6fii 31,1877. '13efore.the Proj,illo, work had to be done by January 2, 1877. But in this cltse,no questi<;m to the work, being.. done, up ,to January ,3, 1880. 'l'heo llist' wdrlt,dolle'iU: October, 187,8, held theolaitn until January 3, 1879. As the' law then stood, was' required before, January 3,1880, and, not having beeri.' done, the claim unless work were resumed as the law provided. The law of January 22, 1880, did not, in my judgment, act retro-,pectively, and its first application to the plaintiff's claim would have been January 1, 1881. Claims located prior to 10, 1872,had already. been provided for by the time for the annual expenditure thereon to January 1, 1875. 18 St. 61. By applying the law of January 22, 1880, to all claims located since May 10, 1872, all cases were provided for, and a rule for all annual expenditures established uniform with the calendar year. This is the view of the general land-office, and is undoubtedly correct. Sickles' Mining Laws and Decisions, 1881, pp. 392,393. Thus there
" ",. j
BLA VONIAN MINING CO. V. PERASICH.
was no forfeiture of the plaintiff's claim until January 3, 1880. In September, 1879, the defendant Samuel Vacovich relocated this claim. This, it is admitted, was a premature location, but it is claimed by the defendants to have been vali. dated after January 3, 1880, by the failure to do the annual work on the part of' plaintiff. But this, in my judgment, is a wrong view. Vacovich, before January,3, 1880, was a trespasser, and could not lay the foundation of any valid claim to this mine before that date. Ulltilthen the plaintiff was not in default, its ground was not to tion for the failure to do the annual-work, . It would rte'ver'do to'permit an 'enury upon 'a II1ining claim, before the OWD,flr ,of it was purpose ofmakiuga as·,the owner 'failed. or nO't to <·do the anlltlalwor.ksubse- ' queritly. The Vaco.1uh lOcation \Vasa trie±entt1lity;' On March ll:!, 1880, Mr. Koenecke, president of the plaintiff, by authority of tb'e' com'pany: 'W'eiitto' :Candalariat6; do the adnu:al work, an;<1 it'is adlmi'ttoo 'thit;'at thi'S,tihl.e the' claim' *asforfeited and subject tb that unless'what was done by Mt.KoeneckEl"in March; andb); MT. Harpham in June following, to of 'worton the dl.i.im, there can he nb recovery;;' Tne provision 'of section 2324, Rev. St., is that.: '",:;
"The claim or mine upon whichsllch (to work) occurred shall be open to relocation i;" the same manner a,; if no locatibn eM ,ame had been made: provided, that the original locators, their heirs, assigns, or legal representatives have not resUilled work upon the claim after failure,. and before such location,"
Mr. Koeneke testifiesThat he visited the mine March 19, 1880, and that it is situated about a mile from the town of Candalaria. About half way between the mine and CandaJaria he met Thomas Perasich, one of the defendants, and told him he was going to do the annual work .on the mine; that Perasich there told him that he was the sole owner of the mine, and could not permit anyone to work on it; that he would shoot anyone Who attempted to work; and that he did not do any work on the mine because he was threatened with shooting, It does not appear that Perasich did, in fact, offer any violence, or that he prevented Mr. Kocncke from going on to the
mine. Mr. Koeneke states further that he did go on to the mine, anll finding a padlock on the door of the tunnel abandoned the idea of work.
Mr. Harpham testified:
He was sent down by the board of directors in June, 1880, as agcnt and attorney at law; that before going to Oandalaria he stopped in Oarson and commenced this suit, taking the summons along, to be served in case he was not allowed to do the annual work on the mine for the year; that on his arrival at Oandalaria he made inquiries touching the locality of the mine, and went out to it or in its vicinity. He says, on cross-examination, he does not know whether he was on the claim, or within a quarter of a mile of it, but saw the mouth of the tunnel closed up. He further testifies that without attempting to do any work, although in no way molested, he next sought the defendants, and sought permission of Thomas Perasich to work before trying to do any; that he found Thomas Perasich at the Tilden mine, some 10 or 12 miles from Oandalaria, and at that distance from the mine told him he had come down to do the annual work for the year; that Perasich there told him that the mine was. his, and he was in possession, and would blow tlie'top of anybody's head off who tried to do work on the claim for plaintiff; that the deputy marshal was with him, and upon this he had him serve the 8ummons. He also testifies that from what he heard about he did Dot think it would be safe· to try to work.
This is a. favorable statement of the evidence for the plaintiff. Both Perasich and Gregovich deny that any threats were made, and Perasich. denies that there was any pad100k on the tunnel door. There is also some conflict as to what occurred at the Tilden mine. Perasich denies that he said he was in possession, and denies that he was in fact in possession at the time this suit was commenced. But let us assume that the statements of Mr. Koeneke and Mr. Harpham are absolutely correct,. !lnd it does not follow that what they did amounts to a resumption of work as the law requires. Neither states that there was any offer of violence even at that distance from the mine. No weapon of any kind was shown, and there was no demonstration by any act, so far as testimony shows, calculated to alarm, beyond these naked threats, made in one instance a half a mile and in the other seven to miles from the ground in 'controversy. More. over, it appears by the testimony of both that they went to the mine during their stay at Candalaria, and were altogether unmolested. Why no attempt was made to work at these times does not appear. Words, unaccompa.nied by any overt
SLA VONIAN MINING CO. V. PERASICH.
act a present intention of carrying them into effect, even on the ground, would hardly justify the plaintiff in declining to make some effort to work. But unless the threats were made on the ground, or so near as to amount to the same thing, they certainly ought not to have that effect. The threats made to Mr. Koeneke by one of the defendants, a half a mile from the mine, do not seem to have had a very serious effect on Mr. Koeneke or the other. directors, for they still thought in June that the work might be done. Mr. Harpham says he was to try to do the work, and only serve the papers in case he was not allowed to do it, and that he had a considerable sum of money with 'hiin-$100 or sowith which to carry outthatpnrpose. Harpham was not in any way molested when he visited the mine. He made no attempt to work, but sought Perasich at the Tilden mine, seven to twelve miles away, to obtain his pEltlllission. I have no doubt that at this time if Harpham,instead of seeking for Perasich, had made a real effort to perform the labor which the law requires, he would have succeeded. But, whether he would or not, it certainly seems tome to have been his duty to try. Yet, although not molested by any one, he is not sure that he got on to the claim while he was in CandaJaria: . At this time the plaintiff might have resumed work, and complied with the law if it were done peaceably. It had no need to ask permission of anyone. Either its old claim was good or it had none. It might enter' by virtue of its old location so 'long as the ground remained uIi'appro'priated. Whenevor there has been such force as excuses from' performance it has been on the ground. I have not been reteiied by counsel to any authorities on this point. . . , In Robinson v. Imperial" 5 Nev. 44, 'De ,Groat, while engaged in fencing his land, under a law which required him to fence within one year, was forcIbly stopped by Black and Eastman, and himself and emplbyes driven from the premises. And in Alford v. Dewin, 1 Nev. 207-14, the defendants had entered, and the plaintiffs, being wrongfully ousted, could not fence':' I will not say that tllere may not be threats on the ground, unaccompanied by acts;"-of so serious and
menacing a character as to satisfy a man of ordinary prudence it would be unsafe to begin work, and in such case it might be an excuse for non-performance. But that is not this case. Had Harpham, instead of visiting Perasich at the Tilden mine, gone to plaintiff's mine and begun work, at the worst he would have had to leave when ordered off. There is not the least probability that he would have been injured in his person if he had been willing to do this without resistance. I have no doubt, from the testimony, that had Harpham at this time commenced work on the claim resolutely, the defendants would never have interfered with him. At all events, l find that his fears of personal violence had no sufficient foundation, and did not justify him in declining to ml,lke an effort It follows that the claim was open to relocation on the twenty-seventh day of September, 1880. when, according to the agreed statement of facts, it was relocated by the defendant Thomas Perasich. Another view of this case is this: The complaint alleges an ouster on the twenty-fifth day of November, 1879, by the defendants. Now, it would have been sufficient to have shown such an ouster, and, if continued as alleged to the time of bringing this suit, it would have been unnecessary to show that work had been performed by the plaintiff so long as the defendants withheld possession; because, in November, 1879, there had been no forfeiture. The plaintiff, then, should have stood upon proof of these facts, if they could have been established. But I presume that it had no sufficient proof of them, for it was distinctly admitted, as has been before stated, that unless work was done after January 3, 1879, or such an attempt to work as amounted to the same thing, the claim had been forfeited. The ouster, admitting one to have been proved, was in June; the proof consisting of an alleged statement by Thomas Perasich, seven miles from the claim, that he was in possession. But the plaintiff sought to establish a possession in defendants, and claims that it did so. It was obliged to show possession in the defendants at the time of bringing this suit or fail in it. Upon its own theory, that the defendants were in possession.
claiming the ground, I do not see how it can justify an entry upon the posession of another, who, by the terms of the law, has the same right to relocate the claim that the plaintiff or its grantors had to locate it originally. The language of the law is that after a failure to work-and it is conceded there was a failure in this case-the claim shall be "open to relocation in the same manner as if no location of the same had ever been made," with a proviso that the original locators have not resumed work after failure and before such location. Did congress contemplate anything besides a peaceable entry and resumption of work before an entry by the relocators? I think not. Congress never could have meant to enact a law which would encourage breaches of the peace, as this would if the original locators might resume work at any time before a formal relocation by those who had entered after forfeiture for the purpose of relocation. The relocator, after entry for the purpose of locating, would be in the same predicament as the original locator was when he took possession in the first instance, and would have precisely the same rights,-the same right to hold the ground against trespassers, upon the basis of his possessio pedis,-without complying with the local rules and customs, or indeed with the law of congress. Atherton v. FoulZer, 96 U. S. So that, after a forfeiture incurred, the original locator, it seems to me, cannot put himself in a position to maintain eject. ment, except by actually resuming work before an entry by a person seeking to relocate for the forfeiture, and an ouster by such person; for clearly the defendants in this case, finding no one on the ground, had a right to take possession after January 3, 1880. After that' date, and before resuming work, there could be no ouster of the plaintiff. Nor would the plaintiff, after forfeiture incurred, be justified in making an entry on this mining ground while in the possession of another. The threats of Perasich were, therefore, upon the theory of plaintiff that he was in possession, nothing wrong if this view is right. Let judgment be entered far defendants for costs. v.7,no.3-22
(Oircuit Oourt, E. D.
January 24, 1881.)
A person will be held to have notice M an individbal of what he does as president of a corporation.
A., the indorser of a promissory note, was sued together with B., the maker, by E., an innocent holder for value, and judgment was for the amount so recovered, part of which A. paid, and then sued disbursed. B. set up as a defence in his answer that the note had been given by him, indorsed by A., to F., a corporation, in part pay-' ment for stock in F., of which A. was president; that the balance due on the stock was paid in cash and the note secured by a deposit of the stock with A.; that F. agreed with B. that he might, within one year from the date of the note, have the privilege of forfeiting the and cash paid, and be released from all obligation to F., and t4at in the mean time the note should not be negotiated; that B. had beim induced by A. to make the agreement; that A., as president of F., negotiated the note contrary to the agreement; and that B. had, within the year, notified F. that he elected to forfeit the cash E\J;ld stock and be released, as aforesaid. Held, that the answer set up Ii' good defence. .
Motion for Judgment on Answer. George A. C'd8tleman, for plaintiff. D. P. Dyer, for defendant. TREAT, D. J. The petition sets out the making by defendant of a note, to the: order of the Big Muddy Iron Company, for $10,000, on which there were successive indorsements. The plaintiff was one of the indorsers before maturity. After demand, protest, and notice, the innocent holder of the note for value brought suit, and obtained judgment against the defendant (the maker of said note) and some indorsers, including the: plaintiff. By the proceedings had on said judgment, the plaintiff, as indorser, paid one-half of 'the amount thereof, and now brings this suit to recover of the maker (the defendant) what the plaintiff thus paid under judicial process. The defence is that the plaintiff, being president of the Big Muddy Iron Company, solicited the defendant to subscribe to certain shares of the capital stock