Nash v. McNamara

Norcross, J.,

concurring:

I concur in the opinion of the Chief Justice, and express the following additional views, based upon my conception of the statutes and the decisions of the highest courts:

The right of respondents to offer proof that the Portland claims were valid and subsisting locations at the time the Union locations were made does not depend, as contended, upon any relations of privity between the locators of the Portland claims and themselves. They have the right to offer such proof, in order to establish the fact, if they can, that they have complied with the federal and state law as relocators of a prior existing claim, which had become, under the law, subject to relocation. Both the state and federal statutes have provided for the relocation of claims which have become subject to such relocation by reason of the failure to do the location work or annual assessment work provided for by law. A distinction is thus recognized, both by the federal and state laws, between a location and a relocation. If persons are claiming rights to the public domain as relocators, necessarily their rights depend upon the fact that a prior existing claim had become subject to forfeiture, and that by entering upon the ground and relocating it they had effected such forfeiture of the rights of the prior *145locators and established rights in themselves. They can only establish their right as relocators by proving the prior location, that it had become subject to forfeiture, and that they had made such forfeiture effectual by complying with acts necessary to make a valid relocation. Where the right to make a location is initiated by the making of a discovery and the posting of a proper notice, but no further act is done to perfect the location, and thus segregate the same from the public domain, the ground is not subject strictly to relocation, for no prior valid location had been perfected. In such a case the land does not cease to be a part of the public domain, never having been segregated therefrom, and thus it remains open to location. It frequently happens that a person upon making a discovery posts a location notice, and in common parlance this is called a "location”; but legally it is not a location,-and may never become such. The first discoverer, who posts a valid notice, initiates a right which he is protected in and which he can follow up by doing the other acts necessary to perfect a valid location; but until he has done those other acts he has not acquired the right of exclusive possession given him by the statute upon, a perfected location, which will have the effect of cutting off any inchoate right in another initiated in the meantime.

Sweeney, J., being interested in the result of the litigation, 'did not participate in the foregoing decision.