On an appeal from a judgment of a territorial court, this Court
is limited to determining whether the facts found are sufficient to
sustain the judgment rendered, and to reviewing the rulings of the
court on the admission or rejection of testimony when exceptions
thereto have been duly taken.
This case comes within the general rule that the allowance or
refusal of a new trial rests in the sound discretion of the court
to which the application is addressed.
The decree and complaint, taken together, fully describe and
furnish ample means for identification of the property to which the
defendant in error was adjudged to be entitled.
The contention that the complaint did not aver a discovery of a
vein or lode prior to the location under which the plaintiffs in
error claim is wholly without merit.
Likewise is the contention without merit that the discovery
under which the defendant in error claims was of only one vein.
Possession alone is adequate against a mere intruder or
trespasser, without even color of title, and especially so against
one who has taken possession by force and violence.
Sundry exceptions as to the rulings of the court upon the
admissibility of testimony considered and held to be immaterial, or
unfounded.
Page 160 U. S. 304
The case is stated in the opinion.
MR. JUSTICE WHITE delivered the opinion of the Court.
The Victoria Copper Mining Company, a corporation created under
the laws of the State of Illinois, brought its action to recover
possession of two mining claims, known as the "Antietam Lode" and
the "Copper the Ace Lode." The mines thus designated were fully and
specifically described in the complaint, which averred that the
defendants had by force and violence ousted the complainant from
the property. In addition to the averments essential to justify a
judgment for possession, the complaint contained allegations deemed
to be sufficient to authorize the granting of an injunction, which
was prayed for, restraining the defendants from taking, or
shipping, or selling ore extracted, or to be extracted, from the
mines in controversy. The prayer of the complaint was for
possession, and twenty-five thousand dollars damages, the value of
ore averred to have been previously unlawfully taken by the
defendants. The defendants jointly answered, specifically denying
each allegation of the complaint, and by cross-complaint Edward W.
Keith, Samuel R. Whitall, William v. R. Whitall, and Michael Smith
alleged that they were the owners in fee of the mines, subject to
the paramount title of the United States, and they prayed that
their title be quieted. The averments of the cross-bill were
traversed by specific denials. Upon these issues, a jury having
first been waived, the case was tried by the court, which found the
following facts, which findings were tantamount to concluding that
the averments of the bill of complaint had been proven:
"
Findings of fact"
"First. That Lewis R. Dyer, the locator of the two mining claims
described in the complaint herein, called, respectively,
Page 160 U. S. 305
'Antietam Lode' and 'Copper the Ace Lode,' and situated in
Uintah County, Territory of Utah, at and prior to the time of
locating the same, discovered and appropriated a mineral vein or
lode of rock in place."
"Second. That at the time of the discovery of said vein or lode
and the location of said mining claims, the land included within
the boundaries of said mining claims was public mineral land,
wholly unoccupied and unclaimed."
"Third. That after the discovery of said vein or lode or
mineral-bearing rock in place, to-wit, on the 17th day of
September, 1887, said Lewis R. Dyer, being a citizen of the United
States, located the two mining claims described in the complaint
herein by writing on a tree standing at, or in close proximity to,
the place or places of discovery of said vein or lode the two
notices of location, one for each of said claims."
"Fourth. That said notices each described the respective claims
by reference to said tree; also, respectively described the
boundaries of each claim by courses and distances from said tree;
that each of said notices contained the name of the locator and
date of location; that said tree was a sufficient natural object by
which said claims, and each of them, could be identified."
"Fifth. That soon after the writing of said notices of location,
and during the month of September, 1887, said Dyer marked
sufficiently on the ground the boundaries of said mining claims,
and each of them, by setting suitable stakes or posts at the
corners of each of said claims; also at the center of the
respective side lines of each of said claims; also, by writing on
the stakes, to identify them with reference to the respective
claims, and securing said stakes by stones piled around them."
"Sixth. That thereafter, on the 13th day of February, 1888, said
Dyer caused a copy of said location notices, and each of them, to
be recorded in the office of the County Recorder of said County of
Uintah; that there was not at that time, or at the time of locating
said claims, any mining district recorder; that said mining claims
were situated in what
Page 160 U. S. 306
had been known as the 'Carbonate Mining District;' that the
rules and regulations of said mining district had, long prior to
the said 17th day of September, 1887, fallen into disuse, and were
not then, or for a long time prior thereto had not been, in force
and effect."
"Seventh. That the plaintiff is a corporation, duly organized
and existing under the laws of the State of Illinois, and was so
organized on the 15th day of May, 1888."
"Eighth. That on the 4th day of May, 1888, said Lewis R. Dyer
duly transferred an equal undivided one-half of said mining claims,
and each of them, to Edward A. Ferguson and August Bohn, Jr., and
that thereafter, to-wit, on the 28th day of May, 1888, said Lewis
R. Dyer, Edward A. Ferguson, and August Bohn, Jr., duly transferred
and conveyed said mining claims, and each of them, to the plaintiff
company."
"Ninth. That since said 17th day of September, 1887, until the
10th day of June, 1889, said Dyer and his grantee, the plaintiff
herein, in, continuously worked upon and improved said mining
claims, and each of them, and actually possessed the same, and have
expended in said work and improvements upward of the sum of $7,000;
that said mining claims are contiguous to each other, and were
worked jointly and in common; that the work done and improvements
made on said claims were such as did develop said claims, and each
of them, and that for each of the calendar years of 1887, 1888, and
1889, more than one hundred dollars' worth of work was actually
done on each of said claims by said Dyer and his grantee, the
plaintiff herein."
"Tenth. That on Sunday night, the 9th day of June, 1889, while
said plaintiff was in actual possession of said claims and working
the same, by its agents and employees, the defendant William Haws
went upon the ground of said mining claims with two men and
wrongfully took possession of the same, and the working upon the
same, prepared to hold such possession by force, and did wrongfully
keep the plaintiff and its employees from thereafter working on
said mining claims, and wrongfully excluded them therefrom, and
that said William Haws and Heber Timothy, and their grantees, the
other defendants
Page 160 U. S. 307
herein, have ever since wrongfully excluded the plaintiff from
the possession of said mining claims."
"Eleventh. That prior to the said 9th day of June, 1889, said
William Haws was an employee of the plaintiff and its grantors
working on said mining claims; that said Haws so worked from the
11th day of February, 1888, until the 13th day of August, 1888, and
from October 24, 1888, to December 21, 1888, and again resumed work
in the month of March, 1889, and continued to work for plaintiff up
to and including the 1st day of June, 1889, when he voluntarily
left the employ of plaintiff; that while at work for plaintiff in
the year of 1888 said Haws formed the secret intention of taking
possession of said mines and mining claims."
"Twelfth. That on or about the 7th day of June, 1889, said Haws
procured the defendant Heber Timothy to join and assist him in
making a location of the ground described in the complaint herein,
which was then being actually possessed and worked by plaintiff,
and on that day said Haws and Timothy, without right of entry on
the ground, set sufficient stakes to mark the boundaries of the two
claims, which they called 'Scottish Chief' and 'Ontario Mine' lode
mining claims; that they also posted, on a stake placed near the
place of discovery of plaintiff's aforesaid claims, location
notices for each of said claims; that the location notice of said
Scottish Chief lode was signed by said Heber Timothy and William
Haws, and recited that the location was a relocation of the
Antietam lode; that the said location notice of the Ontario Mine
lode was signed by said William Haws, and recited that the location
was a relocation of the 'Copper the Ace.'"
"Thirteenth. That on the 4th day of June, 1889, a mining
district was organized, including within its boundaries the ground
heretofore described, called the 'Carbonate District;' that said
Scottish Chief and Ontario Mine location notices were recorded on
the 11th day of June, 1889, in the records of said Carbonate mining
district."
"Fourteenth. That on or about the 12th day of September, 1889,
while holding possession of said mining claims of plaintiff
aforesaid, under the wrongful entry of said Haws aforesaid,
Page 160 U. S. 308
aided by said Timothy, with the consent of said Haws, and at his
instigation, and for the purpose of omitting the name of said Haws
from the location notices, in anticipation of proceedings being
taken by plaintiff to regain possession of its said mining claims,
set a discovery stake within the limits and boundaries of
plaintiff's said mining locations and not far distant from the
place of discovery of plaintiff's said mining claims, and then and
there placed two notices of locations, signed by said Heber
Timothy, claiming to locate two mining claims under the respective
names of 'Valao' and 'Copper King,' and set sufficient stakes and
marks to describe and designate the boundaries of said mining
locations and each of them."
"Fifteenth. That said Haws was to have and own, by agreement
mode with said Timothy, all of said Copper King and one-half of
said Valao; that said claims include substantially the same ground
included in and covered by plaintiff's aforesaid claims."
"Sixteenth. That on the 9th day of August, 1890, said William
Haws, by an instrument in writing, conveyed to the defendant Heber
Timothy his interest in the Scottish Chief and Ontario Mine mining
claims aforesaid, and that on the same day, said Timothy conveyed
to the defendant Michael E. Smith the aforesaid Scottish Chief and
Ontario, described in said deed as relocated, September 12, 1889,
as the 'Copper King' and 'Valao' lode claims, and that on the 11th
day of August, 1890, said defendant Smith, by an instrument in
writing, conveyed to the defendants Samuel R. Whitall, William v.
R. Whitall, Edward Keith, and Frank A. Keith an undivided one-half
interest in said Valao and Copper King claims."
"Seventeenth. That on or about the 29th day of August, 1890,
plaintiff had its aforesaid mining claims surveyed and stakes reset
that sufficiently marked the boundaries of said claims and each of
them and the place of discovery; that at the place of discovery,
plaintiff caused to be posted, on the 29th day of August, 1890, an
addendum notice to each of the original notices of location, which
said addendum notices were duly signed by the secretary of
plaintiff company, and dated, and respectively described the claims
by metes and bounds as
Page 160 U. S. 309
ascertained by actual survey, and also by reference to the
permanent workings of the claims; that said notices were recorded
in the office of the County Recorder of said County of Uintah on
the 29th day of August, 1890."
"Eighteenth. That the description of said claims, as given in
said addendum notices, is the same description as given in the
complaint of the plaintiff herein; also, that the official survey
for patent of said mining claims of plaintiff was made in exact
accordance with said description and the boundary stakes of said
claims."
"Nineteenth. That in the months of August and September, 1890,
and prior to the commencement of this action, the defendants
wrongfully extracted and carried away 25 tons of ore, taken from
plaintiff's said mining claims, and sold all but 7 tons thereof for
the net sum of $1,897.57, except as to the cost of hauling and
extracting, amounting to $34 per ton."
From these findings the court deduced the following conclusions
of law:
"1. That the plaintiff was at the time of the commencement of
this action, and still is, the owner of and entitled to the
possession of the mining claims particularly and specifically
described in the complaint of the plaintiff herein, and called,
respectively, 'Antietam Lode' and 'Copper the Ace Lode' mining
claims, which said mining claims, and each of them, were at the
time of the commencement of this action, and have ever since
continued to be, and now still are, valid mining claims embracing
the premises described in the complaint herein, subject only to the
paramount title of the United States."
"2. That the defendants, or any of them, or any person claiming
under them, have no title or interest in said premises whatsoever,
and had none at the time of the commencement of this action."
"3. That said plaintiff is entitled to a judgment or a decree
against said defendants for the possession of the Antietam Lodge
and Copper the Ace Lodge mining claims, and premises embraced
therein, as described in said complaint, and confirming its title
to the same, and that the defendants have no right, title, or
interest in said premises, or any part thereof, or
Page 160 U. S. 310
in the ores extracted therefrom; also that plaintiff is entitled
to the 7 tons of ore removed by the defendants and not disposed of,
and also for $1,047.57 damages, and also for the costs of this
action; also, enjoining the said defendants, and each of them,
their servants, agents, and employees, and everyone acting under
them or any of them, from extracting or removing ore
therefrom."
Upon these findings and conclusions, a judgment was rendered in
favor of the plaintiff that it
"recover from the defendants William Haws, Heber Timothy, Edward
W. Keith, Frank H. Keith, Samuel R. Whitall, William v. R. Whitall,
and Michael E. Smith the possession of the Antietam Lodge and
Copper the Ace Lodge mining claims, situated in the Carbonate
Mining District, in the County of Uintah, Territory of Utah, and
the premises embraced therein, and each and every part thereof, the
same being specifically described in the complaint of the
complainant herein, and confirming the title to said plaintiff in
and to the same."
There was also judgment for damages and costs in the sum of
$1,692.17, and a decree for an injunction restraining the
defendants from extracting or removing ore from the mines.
On December 3, 1890, the defendants filed their notice of
intention to apply for a new trial on the following grounds:
"1. Irregularities in the proceedings of the court, and an abuse
of discretion in the court, by which defendants were prevented from
having a fair trial."
"2. Insufficiency of the evidence to justify the findings and
decision."
"3. Newly discovered evidence material to defendants, and which
could not with reasonable diligence have been discovered and
produced at the trial."
"4. That the findings are against law."
"5. Errors in law occurring at the trial, and excepted to by
defendants."
On the day this notice was given, the court extended the time
for filing the "specifications of particulars in which the evidence
is insufficient to support the findings, and the affidavits as to
the newly discovered evidence." When this period
Page 160 U. S. 311
elapsed, the defendants presented their specifications of
particulars which was required by the Utah law,
Stringfellow v.
Cain, 99 U. S. 613,
complaining only of the insufficiency of the evidence to support
the findings numbered 3, 4, 5, 6, 10, 12, 14, 17, and 19. The
affidavits relied on as to the newly discovered evidence for the
purpose of obtaining a new trial were also filed. In support of the
complaint as to the insufficiency of the evidence to sustain the
findings, specially objected to on that ground, there was filed an
excerpt from the testimony, the certificate appended thereto
reciting:
"The foregoing, together with Exhibits C and D, and the map,
Exhibit 3, is the substance of all the evidence tending to support
the findings which are pointed out in defendants' specification of
errors as not supported by the evidence, and the substance of all
the evidence pertaining to or illustrating defendants' assignments
of error."
Previously to the filing of this statement of the proof which
related solely to the controverted findings, the defendants
presented their "assignment as to errors of law occurring at the
time of the trial, and duly excepted to by the defendants." The
errors thus assigned were eleven in number, and all referred to the
rulings of the court, in the progress of the trial, rejecting or
admitting testimony. On the 13th of February, 1891, the application
for a new trial was overruled, the order to that end reciting:
"Said motion is heard upon the records and statements, and upon
affidavits filed by the defendants in support of their motion." An
appeal was taken to the supreme court of the territory, where the
judgment was affirmed. 7 Utah 515. The opinion of the court
announced that the findings of the court below were sustained by
the proof and that, as these findings were supported by "competent,
relevant, and material evidence," without reference to the action
of the court admitting or rejecting testimony, it was unnecessary
to determine whether error had been committed in such respect,
since, if it had been, it was not reversible, because not
prejudicial. Subsequently there was filed in the supreme court an
assignment of errors alleging that the court had erroneously
affirmed the judgment below when it should have reversed the same
because of
Page 160 U. S. 312
errors committed by the trial court in admitting incompetent
testimony. The matters referred to in the assignment thus filed in
the supreme court are identical with those which were embraced in
the assignment which had been made below on the application for a
new trial, except that the eleventh alleged error, assigned upon
the appeal to the territorial appellate court, is omitted from the
later assignment. Thereafter a paper was filed in the supreme court
of the territory beginning as follows:
"This is to certify that, on the trial of this cause in the
trial court, the following rulings of the court on the rejection
and admission of evidence were made, all of which were excepted to
by defendants and assigned by them as error on appeal to this
Court, to-wit: . . ."
This was followed by a brief excerpt from the proceedings had
before the trial court, purporting to show exactly what occurred
when the rulings rejecting or admitting testimony were made. All
the facts which are stated in this paper are also in the record in
connection with the specification of errors presented and the
assignment of errors made in the trial court on the appeal taken to
the supreme court. Appended to the paper is the following
certificate:
"The above statement embraces part of the testimony of the
witnesses named, but not all, nor does it contain the testimony of
other witnesses sworn in the case, but is correct so far as it
goes, except showing the corrections and explanations
appearing."
"October 12, 1891."
"James A. Miner,
Judge"
"C. S. Zane,
C.J."
The defendants below prosecute this appeal from the judgment of
the Supreme Court of the Territory of Utah.
Under the Act of April 7, 1874, c. 80, 18 Stat. 28, our
jurisdiction on appeal from the judgment of a territorial supreme
court is limited to determining whether the facts found are
sufficient to sustain the judgment rendered, and to reviewing the
rulings of the court on the admission or rejection of testimony
Page 160 U. S. 313
when exceptions have been duly taken to such rulings. We cannot,
therefore, enter into an investigation of the preponderance of
proof, but confine ourselves to the findings and their sufficiency
to support the legal conclusions which the court below has rested
on them.
Stringfellow v. Cain, 99 U. S.
610,
99 U. S. 613;
Idaho & Oregon Land Improvement Co. v. Bradbury,
132 U. S. 509;
Mammoth Min. Co. v. Salt Lake Machine Co., 151 U.
S. 447. The statement of facts contemplated by the
statute is one to be made by the supreme court from whose judgment
the appeal is taken. But where that court affirms the findings of
the trial court being thus adopted by the supreme court of the
territory, they subserve the purpose of a finding of fact on the
appeal to this Court.
Stringfellow v. Cain, ubi supra.
Guided by this rule, we will examine the errors pressed upon our
attention, considering first in order those which are general in
their nature, and second those which it is claimed result from the
action of the trial court in rejecting or admitting testimony.
1. The contention that the trial court did not consider the
affidavits as to the newly discovered evidence presented for the
purpose of obtaining a new trial is fully answered by the order
refusing the new trial, which recites "that it was heard upon the
record and statement, and upon the affidavits filed by the
defendants in support of their motion." This takes the case
entirely out of the principle announced in
Mattox v. United
States, 146 U. S. 140.
That case involved a refusal to exercise discretion, while the
contention here amounts to the assertion of a right to control a
discretion when it has been lawfully exerted.
2. A further claim of error is that the findings are
insufficient to support the judgment, because the Utah statute, 2
Comp.Law § 3241, requires that
"in an action for the recovery of real property, it must be
described in the complaint with such certainty as to enable an
officer, upon execution, to identify it,"
and that the mines in dispute are designated in the findings
solely by reference to the descriptions contained in the complaint,
which, it is asserted, does not sufficiently identify the premises
to enable an officer to execute a writ of
Page 160 U. S. 314
possession. If this proposition was supported by the record, the
necessary result would be that the judgment of the court below
operates upon no property which can be identified; hence the
defendant, and not plaintiffs in error, would be prejudiced
thereby, and would be the only party entitled to complain. But the
findings amply support the reference made in the judgment to the
premises sued for, to-wit, the
"Antietam Lodge and Copper the Ace Lodge mining claims, situated
in the Carbonate Mining District in the County of Uintah, Territory
of Utah, and premises embraced therein, and each and every part
thereof, the same being specifically described in the complaint
herein."
It is not doubtful that the decree and complaint, taken
together, fully describe and furnish ample means for identification
of the property to which defendant in error was adjudged to be
entitled.
3. It was also urged for the first time upon the argument at bar
that as the United States statutes, Rev.Stat. § 2320, provide that
no location of a mining claim shall be made until the discovery of
a vein or lode within the limits of the mine located, the complaint
was fatally defective in not averring such a discovery prior to
Dyer's alleged location, and that there was an entire absence of
evidence to justify the trial judge in concluding, as he did in his
first finding, that Dyer, "at and prior to the time of locating the
claims, discovered and appropriated a mineral vein or lode of rock
in place." The contention that the complaint did not aver discovery
is without merit. No demurrer was filed, and so far as the record
discloses, no objection was made to the admissibility of proof of
discovery on the ground that it was not alleged, nor was error in
this particular assigned in the lower court or in the supreme court
of the territory, or in the record as required by law. We might
well dismiss the assertion that there was no evidence which
justified the trial judge in stating in his first proposition of
fact that there had been a discovery with the answer that it
amounts merely to a contention that the evidence did not justify
the finding. The record, however, demonstrates the unsoundness of
the contention. Under the law of Utah, those against whom the
judgment
Page 160 U. S. 315
was rendered in the trial court were obliged, on motion for a
new trial, to specify what particular findings of fact were
objected to as unsupported by the evidence. In obedience to this
requirement, the defendant specified the findings which he charged
were not borne out by the proof, and in so doing made no complaint
as to the first finding, which contains the matter now asserted
here to have no support whatever in the proof. The practice, in
addition, required the trial court to certify to the supreme court
of the territory only "so much of the evidence as may be necessary
to explain the particular errors or grounds specified, and no more"
(
Stringfellow v. Cain, ubi supra), and such is the
certificate annexed to the extracts from the evidence which made up
the record taken to the supreme court of the territory. It
therefore follows that the defendants below, after failing in the
trial court to object to the first finding as unsupported by the
evidence, and thereby securing the omission from the record of all
the testimony supporting such finding, now seek to avail themselves
of the absence of the proof which they have caused to be omitted
from the record.
4. It is contended that the findings do not justify the decree
because, on their face, it appears that the discovery by Dyer was
merely of one vein, and as the claims located under this discovery
were two in number, and 3,000 feet in length, they were void
because in excess of the quantity allowed by law. Rev.Stat. §
2320.
Pretermitting the question whether this contention is not in
reality a mere assertion that the findings are not supported by the
evidence, it is without merit. Obviously, if the legal proposition
upon which it depends be well founded, as to which we express no
opinion, it is equally applicable to the mining claims asserted by
the plaintiffs in error. The findings conclusively establish that
the Haws and Timothy pretended locations, upon which the whole
case, as to the plaintiffs in error, rests, were placed upon
practically the same ground covered by the mining claims of the
defendant in error; indeed, the finding is that they (the Haws'
claims) were mere relocations of the existing mines, and therefore
equal to them
Page 160 U. S. 316
in length. It follows that if there was an excess of quantity as
to the claims asserted, on the one hand, a like excess necessarily
existed in the claims relied upon, on the other. True, the location
by Haws was made not only in his own name, but in the name of
Timothy, thereby on the face of such location implying that there
was not one location of three thousand feet, but two locations of
fifteen hundred feet each, by different persons. The findings,
however, completely dispel this situation, for they conclusively
determine that Timothy was a mere instrumentality for Haws in the
execution of his wrongful purposes, and hence that the two mines,
which were apparently located in the name of Haws and Timothy, were
in reality each located by Haws himself. But the findings go
further than this. They absolutely preclude the possibility of a
discovery or valid location by Haws or his confederate Timothy. The
facts on this subject, established by the findings, are briefly
these: Haws, an employee of the defendant in error, while engaged
in such employment in working the mines by it located, and of which
it was in the actual possession, conceived the secret intention of
taking possession of the property of his employer for his own
benefit. In execution of this illegal purpose, he procured the
assistance of Timothy in making a so-called location on the ground
which was then occupied by his employer and upon which he (Haws)
was working as its servant. That they set stakes and posted notices
so as to cover the claims already discovered, and which he knew
were being worked at the time these stakes were placed and notices
posted, and that, shortly after this wrongful driving of stakes,
Haws, in the nighttime, ousted the defendant in error from the
possession which it enjoyed, and the illegal dispossession thus
accomplished was thereafter maintained by force. The elementary
rule is that one must recover on the strength of his own, and not
on the weakness of the title of his adversary, but this principle
is subject to the qualification that possession alone is adequate,
as against a mere intruder or trespasser without even color of
title, and especially so against one who has taken possession by
force and violence. This exception is based upon the
Page 160 U. S. 317
most obvious conception of justice and good conscience. It
proceeds upon the theory that a mere intruder and trespasser cannot
make his wrongdoing successful by asserting a flaw in the title of
the one against whom the wrong has been by him committed. In
Christy v.
Scott, 14 How. 282,
55 U. S. 292,
this Court, speaking through Mr. Justice Curtis, said:
"A mere intruder cannot enter on a person actually seised and
eject him, and then question his title, or set up an outstanding
title in another. The maxim that the plaintiff must recover on the
strength of his own title, and not on the weakness of the
defendant's, is applicable to all actions for the recovery of
property. But if the plaintiff had actual prior possession of the
land, this is strong enough to enable him to recover it from a mere
trespasser who entered without any title. He may do so by a writ of
entry, where that remedy is still practiced,
Jackson v. Boston
& Worcester Railroad, 1 Cush. 575, or by an ejectment,
Allen v. Rivington, 2 Saund. 111;
Doe v. Reade, 8
East 356;
Doe v. Dyeball, 1 Moody & M. 346;
Jackson v. Hazen, 2 Johns. 438;
Whitney v.
Wright, 15 Wend. 171, or he may maintain trespass,
Catteris v. Cowper, 4 Taunt. 548;
Graham v. Peat,
1 East 246."
So also, in
Burt v. Panjaud, 99 U. S.
180,
99 U. S. 182,
it was said, Mr. Justice Miller expressing the opinion of the
Court:
"In ejectment, or trespass
quare clausum fregit, actual
possession of the land by the plaintiff, or his receipt of rent
therefor prior to his eviction, is
prima facie evidence of
title, on which he can recover against a mere trespasser."
The same principle was enforced in
Campbell v. Rankin,
99 U. S. 261, 262,
and application of it to various conditions of fact is shown in
Atherton v. Fowler, 96 U. S. 513;
Belk v. Meagher, 104 U. S. 279,
104 U. S. 287;
Glacier Mining Co. v. Willis, 127 U.
S. 471,
127 U. S.
481.
There remains only to consider the errors which are asserted to
have arisen from rulings of the trial court, admitting or rejecting
testimony.
(a) The objections to the admissibility of the copies of Dyer's
notice of location become wholly immaterial, in view of the
findings on the subject of the actual location made by Dyer. The
sixth finding establishes that there was not, at the
Page 160 U. S. 318
time the copies were left for record, any mining district
recorder, and that the rules and regulations of what had been known
as the "Carbonate Mining District," in which said claim was
situated, had, long prior to Dyer's location, fallen into disuse,
and were not then, and for a long time prior thereto had not been,
in force and effect. In such event, there was no statutory
requirement that notices should be recorded. Rev.Stat. § 2324;
North Noonday Mining Co. v. Orient Mining Co., 1 F. 522,
533. Moreover, the acts of Dyer, enumerated in the fourth finding,
constituted a sufficient location by him of the two claims, as
against subsequent locators, irrespective of the posting of
notices. Rev.Stat. § 2324 merely required that the locations shall
be distinctly marked on the ground, so that their boundaries can be
readily traced.
Book v. Justice Mining Co., 58 F. 109,
112,
et seq., and authorities cited, page 113.
(b) The testimony of McLaughlin, tending to show knowledge by
Haws of Dyer's location, that he recognized it, also becomes
immaterial in view of the findings establishing the nature and
extent of such location. The same reason is applicable to the
objection made to the testimony of Doneher.
(c) It is contended that the district court erred in permitting
two witnesses to testify as to the conversation had with Haws
relative to his intention to take possession of the mines operated
by the plaintiff. This evidence tended to support certain
allegations contained in the second cause of action set out in the
complaint, and appears material to such allegations, and was
doubtless accepted as evidence in support of the fact, stated at
the close of the eleventh finding of the trial judge,
"that, while at work for the plaintiff in the year 1888, said
Haws formed a secret intention of taking possession of the mines
and mining claims of plaintiff."
There was no attack upon the sufficiency of the proof to sustain
this finding. Moreover, the testimony of Haws, as contained in the
record, admits that he formed the intention to take possession
under the suggestion that he considered that he had the right to
make a relocation.
(d) Lastly, it is contended that the district court erred in
Page 160 U. S. 319
permitting the plaintiff to prove that it had expended between
$7,000 and $8,000 in working the mines from the time it took
possession until it was ousted therefrom by the defendant Haws.
This testimony was offered to show good faith in working the
property by the plaintiff company. We think it was competent, in
view of the requirements of Rev.Stat. § 2324
"that on each claim located after May 10, 1872, and until a
patent has been issued therefor, no less than one hundred dollars
worth of labor shall be performed or improvements made during each
year."
Judgment affirmed.
MR. JUSTICE GRAY was not present at the argument, and took no
part in the decision of this case.