The location certificate in this case, though defective in form,
was properly introduced for the purpose of showing the time when
the possession was taken, and to point out, as far as it might, the
property which was taken possession of.
The instructions complained of properly presented to the jury
the two ultimate questions to be decided by it.
In Oregon a general verdict for the plaintiff, where the
complaint alleges that the plaintiff is entitled to the possession
of certain described property which is unlawfully detained by the
defendant, and the possession of which the plaintiff prays to
recover, is sufficient.
William Bennett, for himself and as the administrator of M.
Gibbons, deceased, having made application in the United States
land office at Sitka, Alaska, for a patent to what is known as the
Aurora lode mining claim, the defendant in error, George Harkrader,
filed an adverse claim in that office, and subsequently, under the
authority of § 2326, Rev.Stat., commenced in the District Court of
the United States for the District of Alaska this action in support
of such claim. After answer and reply, the case came on for trial,
and resulted in a verdict and judgment for the plaintiff, to review
which judgment the defendant sued out this writ of error. The
plaintiff
Page 158 U. S. 442
was the owner of certain mining claims known as the Bulger Hill
and Nugget Gulch placer mining claims. The description of the
former in the complaint is as follows:
"Commencing at post No. 10 of the U.S. survey known and recorded
as the Bulger Hill survey, whence United States mineral monument
No. 2, duly established by United States survey and recorded as a
permanent monument, bears north, seventy-six degrees (76�) east,
eleven hundred and seventy-eight (1,178) feet; thence running
north, thirty-four degrees and forty-five minutes (34�45') east,
one thousand (1,000) feet, to angle No. 1; thence running south,
twenty-two degrees (22�) east, two hundred (200) feet, to angle No.
2; thence south, forty-one degrees and thirty minutes (41�30')
east, five hundred and ninety-four (594) feet, to angle No. 3;
thence running south, thirty-seven degrees and thirty minutes
(37�30') west, nine hundred and ninety (990) feet, to angle No. 4;
thence north, thirty-six degrees and fifteen minutes (36�15') west,
seven hundred and thirty-seven (737) feet, to place of
beginning."
On the trial the plaintiff offered in evidence the following
location certificate:
"Notice -- The undersigned claim five hill claims of two hundred
feet each frontage and running back one thousand feet, thence
running from a stake on the west bank of Ice gulch to a similar
stake, one thousand feet distant, near the mouth of Quartz
gulch."
"April 6th, 1881."
"Tom Lineham"
"John Olds"
"Tom Kernan"
"Pete Bulger"
"Pat. McGlinchy"
"This company is known as the Bulger Hill Company."
"R. Dixon,
Recorder"
"April 8th, 1881"
This was objected to as incompetent and void for uncertainty,
but the objection was overruled and the location certificate
admitted in evidence.
Page 158 U. S. 443
The court, among other instructions, gave the following:
"You have two ultimate questions to consider, and those only,
namely:"
"(1) Is the plaintiff the owner of the Bulger Hill and the
Nugget Gulch placer claims, and entitled to the possession of the
soil included within them, and are they located on the grounds as
he has described them? Or --"
"(2) Are the defendants the owners of the Aurora lode, and
entitled to the possession of the soil embracing it, and is it
situated on the ground called for in the description in their
answer?"
To the giving of which instructions the defendants duly
excepted. The verdict of the jury was in these words: "We, the
jury, find for plaintiff. R. S Belknap, Foreman." The sufficiency
of this verdict was challenged, but sustained by the court.
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The ruling of the court in admitting the location certificate is
the first matter presented for our consideration. The ground of the
objection is the uncertainty in the description. Section 2324,
Rev.Stat., provides that
"the location must be distinctly marked on the ground, so that
its boundaries can be readily traced. All records of mining claims
hereafter made shall contain the name or names of the locators, the
date of the location, and such a description of the claim or claims
located by reference to some natural object or permanent monument
as will identify the claim."
It is obvious that the description is quite imperfect, and yet
it does not follow therefrom that there was error in admitting
Page 158 U. S. 444
the certificate in evidence. The description of the property
found in the complaint was evidently prepared with care, and is
apparently open to no objection, at least none has been suggested
by counsel. But the record shows that testimony was introduced on
behalf of the plaintiff connecting the description in the
certificate with that in the complaint and tending to show that the
property described by the one is that described by the other, and
also that the mining claim was located and staked on its boundaries
as the law and the miners' rules and regulations of that district
required. Conceding the indefiniteness of the description in the
certificate, it does not follow that it is absolutely void, for, as
said by this Court in
Hammer v. Garfield Mining Co.,
130 U. S. 291,
130 U. S. 299,
after quoting from section 2324:
"These provisions, as appears on their face, are designed to
secure a definite description -- one so plain that the claim can be
readily ascertained. A reference to some natural object or
permanent monument is named for that purpose. Of course the section
means when such reference can be made. Mining lode claims are
frequently found where there are no permanent monuments or natural
objects other than rocks or neighboring hills. Stakes driven into
the ground are in such cases the most certain means of
identification."
But whatever may be thought of its imperfections, the rights
claimed by plaintiff by virtue of the attempted location are
protected by the legislation of Congress. In 1884, after the
location of this mining claim and prior to the commencement of this
action, Congress passed an act in reference to Alaska, Act of May
17, 1884, c. 53, 23 Stat. 24, in which are the following
provisions:
"SEC. 8. That the said district of Alaska is hereby created a
land district, and a United States land office for said district is
hereby located at Sitka. . . ."
"
* * * *"
"And the laws of the United States relating to mining claims and
the rights incident thereto shall from and after the passage of
this act be in full force and effect in said district under the
administration thereof herein provided for, subject
Page 158 U. S. 445
to such regulations as may be made by the Secretary of the
Interior, approved by the President;"
"
Provided that the Indians or other persons in said
district shall not be disturbed in the possession of any lands
actually in their use or occupation or now claimed by them, but the
terms under which such persons may acquire title to such lands is
reserved for future legislation by Congress;"
"
And provided further that parties who have located
mines or mineral privileges therein under the laws of the United
States applicable to the public domain, or who have occupied and
improved or exercised acts of ownership over such claims, shall not
be disturbed therein, but shall be allowed to perfect their title
to such claims by payment as aforesaid."
"
* * * *"
"But nothing contained in this act shall be construed to put in
force in said district the general land laws of the United
States."
This guaranties not only to parties who have located mining
claims under the laws of the United States, but to those who have
occupied and improved or exercised acts of ownership over such
claims, the right to perfect their title. Obviously the purpose of
Congress in this act was to secure to those parties who were in
actual possession of mineral claims in the Territory of Alaska the
privilege of acquiring full title thereto, and this notwithstanding
their failure to take all the steps required by the general mining
laws of the United States with reference to the location of such
claims. It was to be expected that, owing to the primitive
condition of things in the territory, in the absence of a
government survey, and perhaps of persons competent to make
accurate surveys, many irregularities and imperfections would
exist, and Congress intended that the possessor should be secured
in his possession and be permitted to perfect a title to the
property possessed. Such being the clear import of the statute, it
was perfectly proper to introduce the location certificate, however
defective in form, for the purpose of showing the time when the
possession was taken, and to point out so far as it did the
property which was taken possession of. The same observations may
be made in reference to the other location certificates offered in
evidence.
Page 158 U. S. 446
So far as respects the two instructions complained of, it cannot
be doubted that they are correct statements of the law. The two
ultimate questions for the jury were as stated. Indeed, the
argument of defendant's counsel is rather to the effect that other
instructions should have been given, and the case not left
unexplained, as it would seem to be by these. It is sufficient to
say in reference to this line of argument that the record does not
purport to contain all the instruction. It is to be assumed, if
others were needed, as doubtless they were, to fully present to the
jury the subordinate questions, that they were given, and further,
if no such instructions were given, it is generally true that a
party who thinks an instruction in respect to any matter ought to
be given must ask for such instruction, and, failing to ask for it,
will not be heard in a reviewing court to allege that there was
error in the want of it. The record shows that the defendant did
ask some instructions which were refused, but as it is practically
conceded by counsel that they contained matter inappropriate to the
issue on trial, we need not stop to inquire whether the court
committed any error in failing to give them.
The remaining question is as to the verdict, which is simply
"for plaintiff." By the seventh section of the Act of Congress of
May 17, 1884, heretofore referred to, 23 Stat. 24, it is provided
that
"the general laws of the State of Oregon now in force are hereby
declared to be the law in said district so far as the same may be
applicable and not in conflict with the provisions of this act or
of the laws of the United States."
The statute of Oregon (1 Hill's Annotated Laws of Oregon, p.
380, § 320) requires the jury in an action for the possession of
real estate to find as follows:
"First, if the verdict be for a plaintiff, that he is entitled
to the possession of the property described in the complaint, or
some part thereof, or some undivided share or interest in either,
and the nature and duration of his estate in such property, part
thereof, or undivided share or interest in either, as the case may
be."
The verdict in this case does not state in terms that the
plaintiff is entitled to the possession of the property described
in the complaint or any part thereof; neither does it state the
Page 158 U. S. 447
nature or duration of his estate in the property. Hence, it is
insisted that the verdict was irregular and that no judgment should
be rendered thereon, and in support thereof the cases of
Jones
v. Snider, 8 Or. 127, and
Pensacola Ice Company v.
Perry, 120 U. S. 319, are
cited. We do not think the defect, if it be one, is sufficient to
vitiate the judgment. Where the complaint alleges that the
plaintiff is entitled to the possession of certain described
property which is unlawfully detained by the defendant, and the
possession of which the plaintiff prays to recover, a general
verdict for the plaintiff is a finding that he is entitled to the
possession of all the property described in the complaint. Again,
in this action, brought under a special statute of the United
States in support of an adverse claim, but one estate is involved
in the controversy. No title in fee is or can be established. That
remains in the United States, and the only question presented is
the priority of right to purchase the fee. Hence the
inapplicability of a statute regulating generally actions for the
recovery of real estate, in which actions different kinds of title
may be sufficient to sustain the right of recovery. It would be
pure surplusage to find in terms a priority of the right to
purchase when that is the only question which can be litigated in
such statutory action. If the plaintiff owns the fee, he is not
called upon to file an adverse claim or commence such an action,
and the statute providing therefor has no application.
Iron
Silver Mining Co. v. Campbell, 135 U.
S. 286.
There are the only questions presented. In them we find no
error, and therefore the judgment is
Affirmed.
