A territorial court is bound to take judicial notice of the
statutes of the territory in operation affecting a subject brought
before it in the regular course of procedure.
On May 8, 1873, the Legislature of Montana enacted that any
person who should thereafter discover a mining claim should file in
the office of the recorder of the county a statement in some
material respects different from the statement previously required
by law to be filed in such case, and that the act should take
effect on and after its passage. On that date, a statute was in
force there which provided that
"All acts of the legislature declaring that they should take
effect from and after their passage shall so take effect only at
the seat of government, and in other portions of the territory,
allowing fifteen miles from the seat of government for each
day."
On the 13th of May, 1873, at a place in the territory in which
the Act of May 8, 1873, had not come into force, H & G
discovered a lode and located it, and subsequently filed a notice
of location complying in all respects with the law as it was before
the passage of the Act of May 8, 1873, but not complying with the
requirements of that act. R, who had made a conflicting location,
filed an adverse claim under Rev.Stat. § 2326. On the trial,
the
Page 117 U. S. 402
court refused to receive proof of the location by H & G
because they did not also prove affirmatively that the Act of May 8
had not taken effect at the lode at the time of the location by
reason of its distance from the seat of government.
Held
that the court should have taken judicial notice of the fact that
that statute was not then in force there, and that it was error to
exclude the evidence for the want of such proof.
The case is stated in the opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
This is an action to determine the right of the parties to the
possession of certain mining ground situated in Lewis and Clarke
County in the Territory of Montana. The plaintiffs in error, Hoyt
and Gonn, defendants in the court below, allege that on the 13th
day of May, 1873, they discovered a silver-bearing quartz lode in
that county, which they named "Mammoth Lode," and then proceeded to
locate it by placing stakes so as to mark its extent, and that on
the 29th day of that month they filed in the recorder's office of
the county a notice or declaratory statement of the location,
describing the claim. In October, 1877, Gonn conveyed his interest
to Mary A. Hoyt, and she subsequently filed an application for a
patent in the land office at Helena, in the territory.
Russell, the plaintiff below, the defendant in error here, also
claimed a silver-bearing quartz lode in that county which he
alleges he and one Bassett discovered in 1867, duly located, and
named "The J. H. Russell Lode." The claims of these parties (Hoyt
and Russell) conflicted, and in opposition to her application he
filed his adverse claim under the statute, Rev.Stat. § 2326, and in
due time commenced this action, joining Gonn as a defendant with
her. The plaintiff made proof of his location. The defendants'
notice of location was accompanied by an affidavit that they were
citizens of the United States and of the territory, but the other
matters set forth therein were not sworn to, and for this
Page 117 U. S. 403
omission it was excluded. The action of the court on other
points became of little moment in the face of this ruling; if that
was correct, their proof of right to the disputed ground
failed.
Their lode was located under an Act of Montana of December 26,
1864, and the Act of Congress of May 10, 1872. The act of Montana
provided that notice of the discovery of any lead, lode, or ledge
should be filed for record in the office of the recorder of the
county in which the same was situated within fifteen days from the
date of discovery, and that at the same time an oath should be
taken before the recorder that all the claimants were
bona
fide residents of the territory. Session Laws of Montana of
1864, p. 328. The act of Congress does not require an affidavit. It
merely prescribes that the record, subsequently made, where one is
required by the regulations of the mining district, shall contain
the names of the locators, the date of the location, and such a
description, by reference to some natural object or permanent
monument as will identify the claim. Rev.Stat. § 2324. By an Act of
the Legislature of Montana passed on the 8th of May, 1873, it was
provided that any person who should thereafter discover a mining
claim upon any vein or lode bearing gold, silver, cinnabar, lead,
tin, copper, or other valuable deposits should, within twenty days
after the discovery, file for record in the office of the recorder
of the county a declaratory statement thereof in writing, on oath,
before some person authorized by law to administer oaths,
describing such claim in the manner provided by the laws of the
United States. Extra Session of 1873, 84.
Another act then in force provided that all acts and joint
resolutions declaring that they should take effect from and after
their passage and approval by the governor should so take effect
only at the seat of government, and in other portions of the
territory allowing fifteen miles from the seat of government for
each day. Rev.Stat.Montana § 785. That seat was then at Virginia,
in Madison County. The pleadings admit that the ground in
controversy is situated in Lewis and Clarke County, and in Township
No. 8 North, Range 5 West, but there was no evidence as to its
distance from Virginia. It
Page 117 U. S. 404
was contended that the court should have taken judicial notice
of the distance and declared that the ground was so far distant
that the Act of May 8, 1873, was not in force there at the time of
the discovery of the lode and its location. But the court replied
that while courts would take judicial notice of what is generally
known within the limits of their jurisdiction; of the divisions of
a state or territory into towns or counties; of the leading
geographical features of the land; of the positions of important
cities and towns, and of government surveys of the public lands, no
principle or authority authorized or required them to take judicial
notice of the place where mere private property was situated or its
distance from the seat of government; that matters only of public
importance and notoriety were within the scope of what courts will
take judicial notice of, and that matters of mere private concern,
as the location or situation of a farm or a mining claim, or its
distance from the seat of government, were not within the operation
of the principle.
It is undoubtedly true that judicial notice is not taken of
purely private concerns when they are not connected with, or
necessarily involved in, a matter of a public nature; but it is
otherwise when they are so connected or involved. For example, a
court will take notice of the boundaries of the state or territory
where it holds its sessions, and of judicial districts, and
municipal subdivisions within it. If the public surveys have
established the distance from its capital to any such subdivision,
the court will take notice of the fact, and if private property be
shown to be within that subdivision, its distance also from the
capital will be judicially noticed -- notice of the general fact
embracing all the facts included in it. In the present case, the
court below was required to take notice of the extent of its
jurisdiction, not only of the subjects placed by law under its
cognizance, but of its extent territorially. It should have known
judicially whether the laws of the territory, which it was
appointed to expound, were in operation with reference to a subject
brought before it in the regular course of procedure. It was bound
to know whether they were in force in the township designated in
the County of Lewis and Clarke on the 13th
Page 117 U. S. 405
day of May, 1873, and that necessarily involved a knowledge of
its distance from the capital of the territory. It may be that the
judge's information on the subject was at fault, and calculations
and inquiries on the subject may have been necessary. Such is the
case with reference to a great variety of subjects of general
concern, of which courts are required to take judicial notice.
Information to guide their judgment may be obtained by resort to
original documents in the public archives, or to books of history
or science, or to any other proper source. In this case, it appears
by the government maps of the territory, upon which the public
surveys are marked, that the distance from the seat of government
to the nearest point of the township in which the mining ground in
controversy is situated exceeds seventy-five miles. The Act of May
8, 1873, was not, therefore, in force there on the 13th of May, the
day of the discovery of the Mammoth lode. The court, having become
informed on this subject, should have so declared, and its
conclusion would not have been open to contest before the jury. It
erred, therefore, in excluding the notice of the defendants'
location for the omission stated, because no proof was offered of
the distance of the disputed ground from the seat of government,
where the act took effect on the day of its passage. The court said
that if there were any exception to it by reason of the distance of
the Mammoth lode from that place, the defendants should have made
the fact appear by proof, holding that, the act not having been
complied with, the notice was inadmissible in evidence.
It is not necessary to express any opinion whether, after the
passage of the act of Congress of 1872, the legislature of the
territory could add any further requirement touching the record of
notices of location. It is sufficient for the reversal of the
judgment that the court required proof of a fact of which it was
bound to take judicial notice.
Judgment reversed and cause remanded for a new
trial.