86 FEDERAL JtEPORTER·
.SMITHv. NEWELL et aL (Circuit Coun, D. utah. No. 191.
i. }IrNERAL CLAIM-LocATION MARKS-SUFFICIENCY·
March 21, 1898.)
. Location of a mineral claim. parallelogram in shape, was marked upon thl:' ground by placing at each corner stakes about 4 feet high, and sImilar stakes at the discovery point, and at points upon the side lines. On the discovery stake, and upon a tree aboJjt 20 feet therefrom. were placed name of the claim and its description, date notices of lqc,ation. containing of location. and the names of the locators. Held, that the claim was sufficiently Indicated upon the ground, though all of the stakes were not marked with the name of the claim.
SAME-OBLITERATION OF .MARKS.
When a mineral claim is once. properly marked upon the ground. the rights of the locators are not affected by the subsequent obliteration of the marks. or the remova!of the notice without their fault.
8. SAME-RECORD-SUFFICIENCY OF DESCRIPTION.
A recorded notice of location, in::1tS description or; a claim, erroneously referred to the "southeasterly" . end .of another claim, when the claim had no such boundary, and described a d18tance of 400 ;feet as "4," and gave the courBe8 of a certain boundary Hoe as "northerly" an.d "southerly," when the courses of such line were not true north and south. The' notice correctly described the location with reference 'to a well-established line of another claim, and with the aid of the location stakes the lines of the claim could be easily ascertained,. by applying the description of the record to the stakes and monuments. Held, that the, description was sufficient.
.. SAME-PRIOR LOCATION-PRESUMPTION OF DISQOVERY;.
Proof of a record of a prior location, and the marking of it on the ground, wlll not defeat a subsequent location, in the absence of proof of a discovery by the prior locators. The record and the fnarklng are not sufficient to . authorize the court to presumealliscoyery.
Booth, Lee & ,Gray and Morris L.;Ritchie, for plaintiff. Brown & Henderson and D. C. McLaughlin, for defendants. MARSHALL, District Judge. This suit is broughtin pursuance of an adverse claim filed in the land office under section 2326 of the Revised Statutes of the United States, 'by the plaintiff, who claimsto own the Alta Belle mining claim, against the application of the defendants fora patent for the Dutchman lode. The plaintiff's claim was located on May 25, 1894; the defendants', on January 1, 1889. It is not contended that the Dutchman lode was abandoned; or subject to forfeiture for failure to do the required annual work thereon; but the right of the plaintiff to recover depends on the establishment of the original invalidity of the Dutchman location. That no valjd location of the Dutchman was made is claimed on three grounds: (1) That the claim was not marked on the ground, so that its boundaries could be readily traced; (2) that the record of the claim did not contain such a description of it as to identify it; (3) that at the time of the location of the Dutchman the premises were not subject to the location, but constituted a part of the Black Rock No.1 and the Black Rock No.2 claims. These objections will be considered in their order. 1. The evidence shows that on January 1, 1889, the locators of the Dutchman placed at each corner of the claim substantial stakes, about
4 feet high and 4 inches in diameter. Similar stakes were also placed at the discovery point of the claim, and at a point on the northwest side line, and a point on the southeast side line thereof. Tht> shape of the claim, as marked, was approximately a parallelogram. On' the discovery stake, and· on a tree about 20 feet therefrom, were nailed notices of location, written on paper which contained the name of the claim, the date of location, the names of the locators, and an attempted description of the claim. The claim was on a ridge, and, while there were some trees on it, the evidence does not show that they were thick, or that there was any difficulty in seeing the corner stakes. It is said that the stakes should have been marked with the name of the claim. This was not necessary, unless the bounda.ries could not have been readily traced without it. 'The relative positions of the stakes showed their connection, and indicated a parallelogram. The location notice, nailed on the discovery stake, ahd placed within this parallelogram, gave all of the information that marks on corner stakes would have given. I think the claim was sufficiently marked on the ground, within the most exacting decisions on the subject. Book v. Mining Co., 58 Fed. 106-113; Southern Cross Gold & Silver Min. Co. v. Europa Min. Co., 15 Nev. 383; Warnockv. 11 Utah,: 324, 40 Pac. 205. Having been once so marked,the right of the locators thereto would not be affected by the obliteration of the marks, or the removal of the notice without their fault. Jupiter Min. Co. v. Bodie Consol. Min. Co., 11 Fed. 666; Book v. Mining Co., 58 Fed. 106-114. 2. A more serious question is presented by the second objection to the location. The location was made while Utah was a territory, but there was no statute of the territory governing the locating or manner of recording. Under the authority given them by section 2324 of the Revised Statutes of the United States, the miners of Uintah mining district had made regulations on the subject, article 5 of which was as follows:
"In order to locate a claim of a ledge, lead, lode, or deposit of rock or ore supposed to contain mineral, the locator shall first conform to the United States laws regarding mineral lands, passed May 10, '1872, and shall place a written or printed notice of the same upon the ground so claimed, a true copyof which shall be filed for record with the recorder of this district within ten (10) days of the date of such location, or such location shall be deemed void and of no effect."
On January 1, 1889, the locators filed with the recorder of the district a true copy of the written notice of location placed by them on the ground located, and which was as follows:
"Notice Is hereby given that the undersigned, haVing compIled with the requirements of section 2324 of the Revised Statutes of the United States, and the local rules, customs, and regulations of this district, has located 1,500 feet In length by four hundred feet in width on this, the Dutchman lode, vein, or deposit, bearing gold, silver, and other precious metals, situated in the Uintah mining district, Summit county, Utah, the location being described and marked on the ground as follows, to wit: Commencing at the discovery, which Is 100 feet southerly of the southeasterly end line and center of Toronto location, and 100 feet southerly of said discovery is placed post No.1; thence 1,400 feet, to post No.2; thence 4, to post No.3; thence 1,400 feet in a northerly, to post No.4; thence 100 feet northerly, to post No.5; thence 400 feet southerly, joining with the southwesterly end line of the Toronto, to post No.6; theDce
.l.IlO feet, S,outhwestjlrlYi 1 to lJOst .No.iIi,:; ;ttLe ,place, of ,tJeginfiiJilg. , The mhilng claim above lle known ,I,lijthe .'Plltcllman,' Located this first day of January, of' locators: J b. C.l\1cLaughIin, 375 feet; John Kennedy, ;375 feet;li:tank o!lunes; !875: feet;, Henry N-ewell; 375 feet,"
The, description '(lite, ill ;the notice was Incorno southeasterly end rect in discovery situated S., 44 line "of the min. of the southotlOO feet southerly westerly eIl;dline ofthe therefrom, as called for. to post 3 was approximately MJO feet, while call was, "4." , ·From post 3 to post 4, and from ppst 4 to post 5, tile'call. was the true. course, N., 56 deg. E.' From post 5 to post 6, th.ecall was "southerly, joining with the true course was S., 32 southwesterly.end line of the elld line.; The last call, from deg. E., joining with said tlle true, was S., 56 deg. W. post 6 to post It will be seen, that the called for both the soutlleasterly and of the Toronto lode, and that it is apparenttrom the calls in the: n,otice that the one or the other is is'soughUol);pply the description to the ground, an error. and it is ascertained that the Toronto claim has no southeasterly end line, the true ,call is at once knqwn., . The error, in the call of "4," instead of "40Qfeet," is 3,lso, I3hoWl1-hy tb,e notice itself. ,It is stated therein that location lllape. wAA J.590 feet in length by 400 feet It , ' is true that the in width." Wh,at ""IUjI courses called.fQf; ,iVa.rymo,Jieor cOl,'rectcourses. In the ilD:d "southerli' w:ould mean due absence south. But is not usual fo;r locate claims with a compass, and noc9'nstruqtion given the acts of eongress or the l,'egulations invalidate 'liJ. because of an error in the call for a course. Book v. Mining Co., 58 Fed. 115. '''' The regulation ()fthe record of a true copy of poste(l onthe claIm; and, even i( the 10 g,ays IS given: In;wllich,Jo cure:,any defects in the original notice,it would still be often impossible, within that time, the claim or to describ,e'it,9Y metes and bounds with absolute accuracy. The ordlnal'y'prificiple, that courses and distances give way to fixed monuments, applies to such descriptions, and the record iS8ufficieJit directions, which, taken in connection with tpe marking of the claim on tliegronnd,wiIl enable a person of ordinary intelligence to distingUish the premises 10cated from' the pubUc mineral open,to exploration. Book v. Mining Co., 58 Fed. 10(j-...1l5; Pollard v. Shively; 5 Colo. 309; Brady v.Husby, 21 Nev: 453, 33 Pac. 80iJGamer v.Glenn, 8 Mont. 371, 20 Pac. 654; y. Larkin; 7.M6.P't. '4,49" 17 Pac, 728." ' The act of. congres,s",doesriot"itself. require a record, nor does it prescribe its effect whan it is required byaregulatioBofthe miners asinthis ease; ,But,to' haveanyeffect,it must conttainthe matters specified in of 'the Statl,ltes; 'and therefore must contain "such a descrjPtiQll .of the claim or ,claims located by reference, tQ some natural object 01' permanent monument as
SMITH V. NEWELL.
will identify the claim." In this case, the regUlation of the miners required a record as an act of location, and declared invalid any location of which no record was made. In the record of the Dutcb· man lode, not only were the stakes of the claim called for, but the call from post No.5 to post No.6 was for a line "joining with the southwesterly end line of the Toronto" mine. This was a reference to a permanent monument sufficient to identify the claim. In Hammer v. Milling Co., 130 U. S. 291-298, 9 Sup. Ct. 548, the record of the claim described it with reference to its 'own and stated it to be "about 1,500 feet south of Vaughan's Little Jennie Mine." The objection was made that the record did not refer to such a natural object or permanent monument as would identify the claim. The court, speaking by Mr. Justice Field, said:
"Mining lode claims are frequently found where there are no permanent monuments or natural objects, other. than rocks or neighboring hills. Stakes driven into the ground are In such cases the most certain means of Identification. Such stakes were ·placed here, with a description of the premises by metes; and, to comply with the requirements of the statute so far as possible, the location of the lode Is alsointlicated ·by stating its distance south of 'Vaughan's Little JennieMlne,'-probably the best known and most easily defined object In the vicinity. We agree with the court below that the Little J"ennie Mine will be presul1\ed to be. a well-known natural objector permanent monument until the contrary appears, where a Is described as· In this notice, and It is further described 'as being 1,500 feet south from a well-known quartz locatlon, and there Is nothing hi theeviderice to contradict such a description, distance, and direction.'''
In the case at bar it affirmatively appears that the call for the southwesterly end line of the Toronto lode was correct, and that at least three of the corner stakes of :the Dutchman lode were still in place several months after the location of the plaintiff's claim. Under these circumstances I am of the opinion that the ground located as the Dutchmancou.ld have been ascertained by a person -of ordinary in,tellig-ence in attempting to apply the descrjption in the record of the claim to the stakes and monuments called for. 3. The last objection lJ.llged is that when the Dutchman was 10-eated the ground "Tag covered by prior subsisting locations. In support of this objection the plaintiff has introduced in evidence certified copies .of the recorqeq notices. of .location of the Black Rock No.1 and the Black Rock No.2 mining claims, claiming that such locations were made January 1, 1886. The evidence also shows that said claims, long prior to January 1, 1889, had been so staked as to include the premises in controversy, and that, while no work was done thereon during the year 1888, yet that two men, acting for the person· claiming to own them, entered OIl; the claims December 31, 1888, spent tb,e night in a tunnel on one of thew, and commenced to. work thereon January 2, 1889, after the location of the Dutchman. It i.s not, necessary to decide whether the entry .of the original o>yn-el' wjth inteJ;l.t to do the required annual work, but without any.aotll1al, fe&llmption of: such work prior. to reLocation, prevents such relocatipn, for the plaintiff 'has failed to show any valid location of. the B.lackRock claims; . 'There is no evidence of .any of a 0.1' lode prior. to the discovery ot
86 FEDERAL· :REPORTER.
the Dutchman, nor is there'any evidence that the owners of the Black Rocks ever knew -of any vein or indication of a vein there. It is not shown that tlie locators of the Black Rock claims are dead or absent, nor is it suggested that it was difficult to prove the fact of discovery, iUt existed. On this point, the plaintiff's case rests on the theory that, a record ·of a location and the marking of it on the ground being shown, the court should presume a discovery of a vein. I do not think such a presumption should be made. There will be a decree for the defendants, quieting their title against the plaintiff's adverse claim to the premises in controversy.
TRAVELERS' PROTEC1'IVE ASS'N OF AMERICA v. LANGHOLZ. (Circuit Court of Appeals, Fifth Circuit. March 1, 1898.)
Where a policy of insurance provides,"The member hereby agrees that the Travelers' Protective Association shall not be liable for death when caused by intentionallnjuries inflicted by the member or any other person," and the proof shows the insured was murdered,his was caused by intentional injuries, and no recovery can be had.
In Error to the Circuit Court of the United States for the Western District of Texas. Henry. T. Kent, for plainti1;I in error. Houston & Houston, for defendant in error Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge.
SWAYNE, District Judge. This wils a suit brought by the defendant in error, Matilda Langholzj' in thedistri'ct court, Forty-Fifth district, of Bexar county, Tex., on March 20; 1896, and removed by the plaintiff in error to the United :States circuit court for the Western districtof Texas ion the 22d of May, 1896. The actIon is upon a policy of 'life and accident insurance issued by the plaintiff. in error corporation to Charles J. Langholz.', The which the cause went to trial alleges tMt the plaintiff below #asa feme sale; that the defendant below is a corporation of the· state of Missouri; that the said Chmles J. Langholz was the son: of the plaintiff below, and became a memberofthe said corporation defendant, and became entitled to have said defendant issue to him a certain policy of insurance upon his life, the benefits of which, in case of death, wete 'payable to the plaintiff 'below, by which policy she would be entitled to $ffi,OOO. She then sef out the policy of insurance or certificate of membership in hrec verba, with the indorsements upon the back thereot She further alleges tMther said son, Charles J. Langholz,on or about the 9th day of June, 189.5, came to his death by accident, within 'the meaning and provisions of the said certificate.6f membership or policy of insurancp-: and she further alleges in this connection' that her said son was murdered on said date, in the state of Texas, 'by one John Taylor, being