Adams v. Yukon Gold Co.

BUNNEEE, District Judge.

The plaintiff, Adams, testified in substance that, after having ascertained the Prospector Association claim as stated to be in excess of 160 acres, he went to two of the co-owners of the claim and notified them of his intention to stake such excess; that they thereupon gave their1 consent to plaintiff to stake such excess from either end or side. It was shown that the remaining co-owners, some of whom were in the immediate vicinity, were not advised of the consent given by the two co-owners to Adams; that this act *394had by them neither been previously authorized nor subsequently ratified. Plaintiff contends that, having entered under the permission thus extended, the remaining co-owners, being tenants in common, were bound by the act of their co-tenants. I am satisfied that this contention cannot prevail. Barson v. Mulligan, 191 N. Y. 306, 84 N. E. 75, 16 L. R. A. (N. S.) 151; O’Hanlon v. Ruby Gulch M. Co'., 48 Mont. 65, 135 Pac. 913; McKinley v. Peters, 111 Pa. 283, 3 Atl. 27; 3 Lindley on Mines, 1950; Town of Gold Hill v. Caledonia Silver M. Co., 5 Sawyer, 575, 14 Morrison, M. R. 207; Deep River Gold M. Co. v. Fox, 4 Ired. Eq. (N. C.) 61, 1 Morrison, M. R. 301.

It is not charged that the original locators fraudulently included within the boundaries of the Prospector Association claim an area greater than 160 acres. It must therefore be admitted that the location was made in good faith as to the area included.

“No entry for tbe purpose of location can !be made on an existing mining claim which is excessive through honest mistake until notice of the excess has been given the locator and an opportunity afforded him to reduce his claim to legal size.” Jones v. W. G. M. & T. Co., 177 Fed. 95, 101 C. C. A. 349, 29 L. R. A. (N. S.) 392; Nicholls v. Lewis & Clark M. Co., 18 Idaho, 224, 109 Pac. 846, 28 L. R. A. (N. S.) 1029; Dwinnell v. Dyer, 145 Cal. 12, 78 Pac. 247, 7 L. R. A. (N. S.) 763; Zimmerman v. Funchion, 161 Fed. 859, 89 C. C. A. 53; Waskey v. Hammer, 170 Fed. 31, 95 C. C. A. 305.
“A placer mining claim located in good faith is not wholly void because it exceeds 20 acres (an association placer claim 160 acres), but is void only as to the excess, which may be rejected from any portion the owner may select, and until he has been advised of the excess, and has had a reasonable time to make his selection, his possession extends to the entire claim, and another who goes upon it and makes a location of any part is a trespasser, and his location a nullity and void for any purpose.” Jones v. W. G. M. & T. Co., 177 Fed. 95, 101 C. C. A. 349, 29 L. R. A. (N. S.) 392.

The plaintiff, it will be noted, claims the right to enter by virtue of permission extended to him by two of the co-owners to stake the excess from either side or end. Ordinarily one could not be heard to complain if, having granted permission to stake the excess, the locator staked less than the excess. If the two co-owners were able to bind the other co-owners by such permission, the plaintiff, as in this case, would be required to stake such excess entirely on one side or on one end. This plaintiff fails to do. If he, by his staking, can give the original location another course, as he has attempted to do in *395this instance, then “to stake on either side or end” can be construed to mean a staking of excess in rectangular form anywhere in the original claim provided one boundary of the fractional location coincides with one boundary of the original location. One claiming the right to make entry of a placer mining claim the boundaries of which contain an area in excess of the amount allowed by law, under permission of the owners thereof to stake the excess, should first determine the amount of such excess and stake the same in such manner that the original location thus reduced in area will not contain an additional course.

One of the defendants herein, the Yukon Gold Company, after this action was instituted, in the winter of 1914 surveyed the Prospector Association claim, cast off the excess of 27.03 acres at the lower end, and established a new boundary accordingly.

Section 2331 of the Revised Statutes (U. S. Comp.'St. 1916, § 4630) provides that claims upon unsurveyed public lands shall conform “as near as practicable with the United States system of public land surveys, and the rectangular subdivisions of such surveys.”

Defendants’ Exhibit A is a map showing the conflict area 1 of the Prospector Association claim with the Anaconda Fraction and the Anaconda Fraction No. 2; also the excess area cast off by establishing a new lower boundary for the Prospector Association claim. It also shows that the Prospector Association claim is bounded on the upper, or easterly, end by the K. P. M. claim, and on the southerly side by the Mohawk Association claim and the Ducky Fraction claim. No claim is shown to join the Prospector Association claim on the westerly, or lower, end.

If the decision of the land office is to be followed in Re Snowflake Fraction Placer, 37 Land Dec. 250, “as nearly as practicable” has a well-defined meaning. It is laid down in this decision that the Land Department is unwilling to approve “shoestring” claims or those of irregular shapes, unless prior locations render such fractional locations necessary in order to appropriate unclaimed area.

Plaintiff asks the court to validate the Anaconda No. 2, being a fractional claim 5,280 feet in length by 125 feet in width. The necessity for making a location in this form is not shown; on the other hand, the evidence clearly shows that the *396plaintiff under section 2331, Revised Statutes, could have located the excess of the Prospector Association claim finally cast off, and such location would have been “as near as practicable with the United States system of public land surveys.” 2 Lindley on Mines (3d Ed.) § 448.

While the courts-are not bound by the decisions of the Land Department, still the courts should consider them and give them full force and effect in proper cases. Hanson v. Craig, 170 Fed. 62, 95 C. C. A. 338.

Findings of fact and conclusions of law in accordance with the views herein expressed, together with a decree dismissing the action, may be prepared and submitted. Since defendants reside at Iditarod and the plaintiff resides at Ruby, the defendants may have 60 days to1 prepare, serve, and file their findings of fact and conclusions of law, and the plaintiff may have 60 days after service of the same to prepare and file any proposed amendments or objections.