National Milling & Mining Co. v. Piccolo

Chadwick, J.

(dissenting) — To dissent from the majority opinion may be redundant in the light of what was said by Judge Fullerton when the case was first decided, 54 Wash. 617, 104 Pac. 128. It does seem to me that the majority in its endeavor to follow the letter of the law have utterly ignored its pretense and spirit. . It is not explained why, if the construction put upon § 8 is proper, it was ever enacted at all. A very certain test of a statute, when of doubtful meaning, is to refer to the reasons prompting its enactment. It will require no argument to convince the reader that § 8 is useless cargo, serving no possible purpose, unless it was written to serve the purpose set out and explained in Judge Fullerton’s opinion. The majority opinion reads the word “only” out of § 8, saying:

“It is contended that the word -‘only,’ in the second line of § 8, where it is said that the relocation of forfeited or abandoned quartz or lode claims shall ‘only’ be made by sinking a new discovery shaft, lends color to the contention, and if this were the only qualification for obtaining title by relocation of forfeited or abandoned claims, the contention might possibly be sustained. But considering the whole section together, in our judgment it simply means that the relocation of forfeited or abandoned quartz or lode claims shall only be made in the same manner as is provided for in the former section.”

Right here the opinion is at fault. The whole section is not considered together; else why is no mention made, or construction attempted, of the last clause of the section, which reads as follows:

“. . .in either case a new location monument shall be erected and the location certificate shall state if the whole or any part of the new location is located as abandoned property?”

The statute undertook to put upon the one who claims mining ground as abandoned or forfeited a burden that was not imposed upon an original locator; and properly so, for the one who takes abandoned ground takes more than the mere land. He reaps the reward of another’s foresight and industry. Section 8 declares that he shall do more than file upon the land. It requires some evidence of good faith. It puts the burden of proving the abandonment or forfeiture on the relocator, whereas, under the opinion of the majority, the burden of proof would be upon the one who is put to the necessity of ejecting the intruder. To save § 9, which is written in the singular and evidently refers to § 2 of the act, the majority has held § 8 for naught, notwithstanding it most clearly appears to be an exception to the statute and in no wise conflicts with its general provisions. Although the words “discovery shaft” are used in § 8, they should not be held to refer to an original discovery such as is provided for in § 2, and as referred to in § 9. The word “discovery” is superfluous. This is made manifest by the words, “or the relocator may sink the original discovery shaft ten feet deeper than it was at the date of commencement of such relocation,” etc., the law being that he is not bound to make a new discovery, but is bound to sink ten feet in the ledge. There is and can be no such thing as a “discovery” where the shafts, tunnels, bunkhouses, and bins of another are appropriated; but there can be, and it was the intent of the law of 1899 to compel, some expenditure of time and money on the part of the one who jumps the claim of another. The object of the law of 1899 was to make claim jumping hard. The decision of the majority not only makes it easy, but will incite the mining claim jumper and blackmailer to new activities.

Fullerton, Mount, and Gose, JJ., concur with Chadwick, J.