Baxter Mountain Gold Mining Co. v. Patterson

Axtell, C. J.,

dissenting. The plaintiff, to support its case, offered in evidence a certified copy of the original location notice, which said certified copy was in words and figures as follows:

“Notice of Location.
“Notice is hereby given that the undersigned, having complied with the requirements of chapter six of title thirty-two of the Revised Statutes of the-United States, and of the local custom, laws, and regulations, has located ‘OroCash’ lode, ledge, or deposit of mineral bearing rock, situated in White Oaks-mining district, county of Lincoln, and territory of New Mexico, and described as follows: Situated on Baxter mountain, west of Baxter gulch; bounded on the west by Homestake lead, on the south end by Silver Cliff claim, on the-north end by Rip Van Winkle claim; running (600) six hundred feet in a. southerly direction, and (100) one hundred feet in a northerly direction, three hundred feet in width. Discovered November 4, 1880; located November 18, 1880. G. R. Nicjkey, Locator.
“Attest:
“James W. Lawson,
“ J. O. Nabours.
“Filed for record this twelfth day of January, A. D. 1881, at TO A. m., and duly recorded as above. Ben. II. Elt.is, Recorder,
“By Wm. O. Burt, Deputy.”

To the introduction of which the defendants objected, because the-same was void for insufficiency as a mining location notice, [the objection that this was not the original location notice was waived by an agreement of record,] and the only objection made by the defendants was the insufficiency of the location notice to properly describe-a mining claim. The objection was sustained by the court, to which objection the plaintiff then and there excepted. The plaintiff then, offered to show that the mining claim referred to in the location notice as boundaries of said “Oro Cash” claim were old and well-known mines, with well-defined and established boundaries, and that they were situated, as to the “Oro Cash” claim, as described in the notice-of location, and at the point of discovery the notice of the “Oro Cash”' location was posted; that the lines of the claim were well marked uponu the ground, as the law required, and properly staked and monumentedi at each and every corner thereof, with end stakes at the points in the-end of the claim where the vein passes out, and to show that immediately after the location of the said claim that the locator went into-possession thereof, and remained in possession until the claim was transferred to the plaintiff by proper deed, and that the plaintiff remained in possession from the time of said conveyance until ousted by defendants, in the month of June, 1883; that the “Oro Cash” was a. well-known claim; that it was well known throughout the camp by its, name and boundaries, as marked upon the ground, and to be the property of the plaintiff. The defendants objected to the introduction off this evidence, or any part thereof, and the objection was sustained,., to which ruling the plaintiff then and there excepted. At this point - plaintiff took a nonsuit, with leave to set aside, and afterwards final judgment was entered in favor of defendants. Plaintiff appealed to* this court, and assigned as error the refusal of the court below to receive the evidence offered.

A location of a mining claim, when perfected, has the effect of at grant by the United States of the right of present and exclusive possession and enjoyment of all the surface included within the lines off the location. These lines must be distinctly marked upon the ground,., so that the boundaries of the claim can be readily traced. In addition to the marking upon the ground, the statutes of the United States; and of this territory require that the claim shall ,be recorded, and au notice posted in some conspicuous place upon the claim, giving the-name or names of the locators, the date of the location, and such a description of the claim, by reference to some natural object ospermanent monument, as will identify the claim. A location is not made by taking possession alone, but by working on the ground, recording, and doing whatever else is required for that purpose by the acts of congress and the local laws and regulations. A mining claim, thus perfected is property in the highest sense of that word.

The plaintiff below offered to prove that all the requirements off the laws of congress and of this territory had been substantially complied with; that the mining claims which are referred to in the notice •of location were old and well-known mines, with well defined and •established boundaries. Whether this was so or not was a matter of proof, and the plaintiff ought to have had an opportunity to make .good his declarations.