Bradley v. Lee

Rhodes, J., delivered the opinion of the Court:

The fifth instruction, given at the request of defendant, is as follows : “Fifth—If the jury believe, from the evidence, that the claims in dispute are adjoining other mining claims and possessions of the Empire Mining Company, or Ophir, or Rich Hills, and that the Empire Mining Company, or its grantors, located the same at a time when they were open and subject to appropriation, under the local usages of the district, and have, during each and every year since said location, including the year in which they were located, performed upon said claims, or upon claims previously held by them, lying immediately contiguous thereto, labor of the value of $100, or twenty days of faithful labor, then the jury must find for the defendant.”

It is objected to this instruction, that it assumes that the modifications of the mining laws, mentioned in the record, had been adopted before the time of the alleged forfeiture by the original locators. The instruction is not, and does not profess to be, a complete charge upon the legal questions to which it relates. It seldom occurs that a single instruction, given for the purpose of presenting the law upon a point arising upon more than one fact, contains all the qualifications and provisos that would be necessary, if no other instruction were given; but it is always intended that such instruction shall be read, together with the other instructions upon the same point, or those involving a consideration of the same facts. Beading this instruction, with the others given in the case, the question is submitted to the jury, whether the plaintiffs failed, during any year after their location, to perform the amount of labor upon the claims required by the mining laws then in force. It also submits the question, whether the claims “were open and subject to appropriation under the local usages of the district.” The question of the performance of labor upon the claims by the Empire Mining Company, in accordance with the mining, laws, was also submitted to the jury. It might have been, technically, more accurate to have submitted, in this instruction, the question as to the amount of labor required by the mining laws to be performed; but it was not necessary, as the jury were fully charged with that inquiry.

It is further objected, that the instruction misconstrues the mining laws in regard to the amount of labor required to be performed, when the same party owns two or more contiguous sets of claims. But we think the construction given by the Court below, to the effect that work upon one set of claims, is, by the mining laws, declared work upon all of such sets of claims; that $100 in value, or twenty days of faithful labor performed upon one set of claims, is sufficient to hold for one year all the contiguous sets of claims owned by the same party. The law does not limit the number of locators in a set of claims, and consequently does not limit the extent of the set of claims. Suppose that one party owns three sets of contiguous claims, of five hundred feet each, and another party owns one set of claims, of the extent of three thousand feet, would it not be unreasonable to hold, when the letter of the law does not require it, that the first party must perform three times—and, in view of the extent of the claims, six times—the amount of labor required of the other party? Should the first party perform in one year forty or more, but not sixty days labor, and should all the work be actually expended upon only one of the three sets of claims, each of the three sets of claims would be subject to re-location, if the law requires him to perform twenty days labor for each set of claims. Tor the law declaring that c ‘ all work and labor expended upon any one set of contiguous claims, is considered work upon them all, ” the work performed must be applicable to each set of claims, in the same manner and to the like extent, and he would thus come short of twenty days labor upon either claim. If the law considers the work performed on any set of claims as “work upon them all, ” the owner has not the right to shift the work, by mere assertion, from one set of claims to another, as his caprice or interest may dictate.

It is also objected, that the instruction assumes, as a fact, that the defendant was acting only as the agent of the Empire Mining Company. It is apparent that the real contest in the case was between the plaintiffs and the Empire Mining Company; and it is stated in the record that the defendant gave evidence tending to show “ that the said defendant, in ejecting said locators, acted only as the agent of the said Empire Mining Company, ” and it is not stated that there was any evidence to the contrary. It is also stated, that the “ defendant introduced evidence tending to show that from the year 1857 to the year 1865 the Empire Mining Company, of which the defendant, Lee, is the managing agent, was in tho open and undisturbed possession of the said mining ground,” etc. In view of this admission and the condition of the evidence in the .case, the assumption in the instruction, that the defendant was acting -as such agent, if not fully warranted, was not productive of any injury to the plaintiffs.

It is further objected to the instruction, that it assumes, as a fact, that the mining customs required the performance of work to the amount of $100, or twenty days, on the claims each year. But the question as to the amount of work required by the mining customs to be performed upon mining claims, was submitted to the jury in another instruction.

The fifth objection to the instruction is, that it assumes that mining claims are open and subject to appropriation in case the mining laws in relation to working them are not observed, although they may be in the actual possession of other persons.

The language of the instruction, “open and subject to appropriation under the local usages of the district, ” does not, necessarily, imply that a mining claim, in the actual possession of a person, may be re-located by another person, if the person in possession has not performed the amount of work on the claim required by the mining regulations in order to give him the constructive possession of the claim. Such regulations are devised for the purpose of enabling persons who locate claims to hold them by constructive possesion; and they are not to be construed as authorizing a person to invade the actual possession of another on the pretext that the latter has neglected to perform the requisite amount of work, or has failed, in some other respect, to comply with such regulations. Such constructive possession is no higher evidence of title than actual possession. We do not construe the instruction as laying down a rule opposed to this view of the purpose of mining rules and customs.

The plaintiffs gave evidence tending to show that their grantors located the claims in 1855, “according to the customs, usages and regulations” then in force; that the first year thereafter, they did the requisite amount of work to enable them to hold the claims; ‘1 that certain of said locators were in possession of five sixths of said claim, and were ejected therefrom, by said defendant, in September, in the year 1865. ” There is no evidence tending to show that they were in the actual possession at the time of the alleged re-location of the claim, nor at any other time than in September, 1865—even if it is meant by the statement that at that time they were in the actual possession. There was, therefore, nothing in the evidence which required the Court to charge the jury as to the effect of an actual possession by the plaintiffs’ grantors at the time of the alleged re-location of the claim by those under whom the defendant claims.

The objections to the second and fourth instructions need not be particularly noticed, as they have been sufficiently answered in considering the objections to the fifth instruction.

Judgment affirmed.