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there existed within the boundaries of the the court, is not to prove title under the loplacer claim a well-known lode or vein; that cation itself, but for the purpose of showing the applicants for placer patent did not apply that this vein was known to exist at the time for patent to such lode or vein and the same when he located it by Charles Colbert, and was excepted from the placer patent; and to show what was done by Charles Colbert that all acts done by defendants were done and others with reference to working the upon such known lode or vein. Thereafter vein." In O'Donnell v. Glenn, 8 Mont. 248, Hall and others filed a complaint in inter- 19 Pac. 302, this court held that a declaravention, in which they set forth substantially tory statement which does not contain the the same facts as those pleaded affirmatively required affidavit is void, and that decision by the defendants, and other facts to which has been followed uniformly since. See Hickreference will be made hereafter. They de- ey V. Anaconda Copper Min. Co., 33 Mont. scribe particularly the ground claimed by 46, 81 Pac. 806. Since the Morning Star dethem, and conclude with a prayer for general claratory statement was void, the receipt in relief. Issues were joined upon all the af- evidence of a certified copy of it was error. firmative allegations contained in the answer [4] It is apparent from the statement of and the complaint in intervention, except that counsel made when the copy was offered that plaintiff admitted that its only claim of own- the purpose of introducing it was to show ership is by virtue of mesne conveyances general knowledge on the part of the people from the original placer patentees. The trial of the community that a vein existed within court found in favor of the defendants and the boundaries of the placer prior to the apinterveners, and rendered a decree in favor plication for patent, presumably upon the of interveners, adjudging them to be the own- theory that proof of such condition in 1877 ers of the ground claimed by them. From would tend in some degree to establish knowlthe decree and an order denying it a new edge of a similar condition when the applitrial, the plaintiff has appealed.

cation for placer patent was made in Febru[1] 1. Error is predicated upon the action ary, 1880. That a void instrument cannot imof the trial court in overruling plaintiff's de part constructive knowledge to any one is murrer to the affirmative defense pleaded in elementary; and the fact that the trial court the answer of defendants. But we think admitted this evidence, and that in finding there is not any merit in the contention; for No. 1 reference is made to the Morning Star even assuming that sufficient facts are not location, and the further fact that the court pleaded to entitle defendants to affirmative did not find specifically that the placer patrelief-and they do not seek any-still the entees had actual knowledge of the existence facts, which, if true, show the existence of a of the vein at the time when they applied known vein within the ground claimed by for patent, but only that they had such knowlplaintiff at the time the application for placer edge, actual or constructive, seem to justify patent was made, state a defense to plaintiff's the conclusion that the court must have atcause of action; for, if such known vein tached some importance to the contents of existed, it remained public property of the this declaratory statement. United States, and plaintiff will not be heard [5] In order to exclude a lode from a placer to object to defendants carrying on mining claim, the lode must have been known at the operations upon it. Reynolds v. Iron-Silver time the application for placer patent was M. Co., 116 U. S. 687, 6 Sup. Ct. 601, 29 L. made; but actual knowledge on the part of Ed. 774.

the placer applicant is not absolutely essen[2] 2. Complaint is made of the action of tial. In Iron-Silver Min. Co. v. Mike & Starr the court in admitting evidence of the condi- G. & S. Min. Co., 143 U. S. 394, 12 Sup. Ct. tion upon the ground, particularly as to the 543, 30 L. Ed. 201, it is said: “It is enough character and extent of the vein disclosed by that it be known, and in this respect, to come development made since the placer applica- within the intent of the statute, it must eition. The question involved was determined ther have been known to the applicant for by this court adversely to appellant in Noyes the placer patent or known to the community v. Clifford, 37 Mont. 138, 94 Pac. 842. generally, or else disclosed by workings and

[3] 3. As a part of their proof, interveners obvious to any one making a reasonable and introduced in evidence, over the objection fair inspection of the premises for the purof plaintiff, a certified copy of the declaratory pose of obtaining title from the government." statement of the Morning Star quartz lode This rule has been followed in the mining mining claim. This declaratory statement states generally. Brownfield v. Bier, 15 purports to have been made by Charles Col- Mont. 403, 39 Pac. 461. It seems a fair infer. bert in 1877, and recites that on July 2, 1877, ence from this record that the placer patColbert made discovery of mineral-bearing entees who denied actual knowledge of the rock in place at a point which is now within existence of a vein within the boundaries of the boundaries of the ground claimed by their placer claim at the time of their appliplaintiff. It is conceded that the declaratory cation for patent were charged with knowlstatement was not verified as required by the edge of the existence of such vein by the law in force at the time; but in offering the evidence furnished by this declaratory statecertified copy counsel for interveners say: ment.

statement was offered to prove the extent or the original placer patentees, to Emory, Tong, character of the work done by Colbert, it was and Colbert, dated April 19, 1880, and consubject to the objection that it was not the veying the following described property: "Al best evidence, in addition to the other objec- that portion of lot numbered seven in section tion considered.

eighteen, T. 3 N. R. 7 W., lying north of a [7] The immateriality of the evidence is line drawn parallel with the south boundary also apparent, since neither plaintiff nor in-line of said Lot No. 7, 10.91 chains distant terveners claimed under the Morning Star therefrom; excepting that piece conveyed location. In fact, the evidence shows that to George W. Maston.” It appears sufficient. that claim was abandoned,

ly that lot 7, mentioned above, is placer 765 ; 4. The interveners also introduced in evi- but, since there is not any description what. dence, over the objection of plaintiff, a dep- ever given in this record of the portion which osition of Charles Colbert, taken in 1895, had theretofore been conveyed to Maston, it in an action entitled Montana Central Rail- is impossible to know whether Colbert ever way Company v. Midgeon et al. The deposi- owned the land in controversy, whether he tion was not taken in a case in which any owned it at the time the declarations were of the parties in this action were interested, made, or whether plaintiff derived its interbut it is contended that it was competent to est from Emory, Tong, and Cölbert, or is the prove by it declarations made by Colbert tu successor in interest of Maston. Under the the effect that there was a known lead, lode, pleadings, it was unnecessary for plaintiff or vein within the boundaries of placer 765 to prove its chain of title from the original at the time the application for placer patent placer patentees; and, since the interveners was made, and this upon the theory that at had the burden of showing that Colbert was the time the declarations were made Colbert the grantor of plaintiff and failed, the decowned the placer ground now claimed by the larations made by Colbert were hearsay and plaintiff, and that the declarations were inadmissible against the plaintiff, under the against interest.

provisions of the Code section cited above. [8] If the admission of these declarations Harrell v. Culpepper, 47 Ga. 635. can be justified at all, it must be done under [9] But the declarations were inadmissible the provisions of section 7866, Rev. Codes, for a further reason. Whatever interest Colas follows: "Where, however, one derives bert acquired in placer 765 he retained until title to real property from another, the dec-1900. It appears, also, that he was one of laration, act or omission of the latter, while the locators of the Green Copper quartz claim, holding the title in relation to the property which location it is alleged in the complaint is evidence against the former." This sec- in intervention was made in 1891, and it is tion is but declaratory of the common law. fairly inferable that whatever interest, if It does not add to or subtract from the rule any, he acquired in the quartz location he as it existed prior to the adoption of the retained until after 1895. If we assume, statute. Frink v. Roe, 70 Cal. 296, 11 Pac. then, that the portion of the placer conveyed 820. In this last case the California court to Colbert included the ground now claimed said: "Any declarations, acts, or omissions by plaintiff, and that the Green Copper was of the grantor while holding the title in re- a valid quartz location, neither of which aplation to the property, and which could have pears as a fact from this record, then we are been introduced against him while an owner, confronted with this situation: Colbert while may be introduced against his grantee-noth-claiming a piece of ground as placer, and ing more.” In 1 Jones on Evidence, & 241, also claiming a portion of the same under a the reason for the rule is given as follows: quartz location, makes a declaration against "The principle upon which such evidence is his placer interest and in favor of his quartz received is that the declarant was so situated claim; that is to say, his declaration is to that he probably knew the truth, and his the effect that there was a vein—the one upinterests were such that he would not have on which the Green Copper was locatedmade the admissions to the prejudice of his within his portion of the placer at the time title or possession, unless they were true. the application for the placer patent was The regard which one so situated would have made. The effect of this declaration, if true, to his interest is considered sufficient securi- is to prove that the extent of his placer claimi ty against falsehood.” See, also, 2 Wigmore is less than it purports to be; and, having on Evidence, $ 1080.

conveyed away all that his placer purports However, when a declaration of this char- to have been, the direct effect of this declaacter is offered, the party making the offer ration is to destroy title to that portion of must show (a) that it was made while the the placer crossed by the vein, and a strip declarant was holding the title to the prop- of 25 feet on either side thereof. In other erty in controversy; (b) that the declarant words, his declaration destroys the record was in fact the grantor of the party against title to that portion of the placer. In Dodge whom the declaration is offered; and (c) that v. Freedman's Savings & Trust Co., 93 U. S. the declaration was against interest. The 379, 23 L. Ed. 920, the Supreme Court of the only evidence in this record touching Col- United States said: "Such declarations are bert's title to any portion of placer 765 is competent only to show the character of the furnished by a deed from Marsh and Nichols, possession of the person making them, and

by what title he holds, but not to sustain or open to the construction given it is apparent. to destroy the record title."

It is an admission by plaintiff that interven[10] 5. In a number of instances the court ers acquired whatever rights were obtained permitted the interveners to show, over plain- by the locators of the Sunbury and Green tiff's objection, that there had never been Copper claims, and the Green Copper as any placer mining carried on on placer 765. amended; but it does not admit that any one The evidence was altogether immaterial. The of these claims was a valid location, or that placer patent to Marsh and Nichols estab- the locators ever acquired any rights whatlished conclusively the fact that the ground ever by virtue of them. The stipulation did was and is placer; and the effect of the pat- not go further than to relieve interveners ent cannot be overcome by evidence that plac- from deraigning their title after proving er mining operations were never carried on. valid locations of those claims. Upon the Dahl v. Raunheim, 132 U. S. 260, 10 Sup. Ct. record before us, interveners were not en74, 33 L. Ed. 324; Butte & Boston Min, Co. titled to affirmative relief. Assuming the exv. Sloan, 16 Mont. 97, 40 Pac. 217.

istence of a known lode within the placer at [11] 6. The trial court found that at the the time the application for patent was made, date of the application for placer patent there such lode is open to location at this time, so was a well-known lode within the boundaries far as we are informed by this record; and, of placer 765 disclosed in workings at the if so, the trial court cannot by its decree preMorning Star shaft; that the vein was such clude the plaintiff or any one else from loas to except it from the general grant of the cating it. placer patent, under section 2333, U. S. Rev. As said above, the interveners apparently St. (U. S. Comp. St. 1901, p. 1433). The com- based their claim upon the Green Copper loplaint in intervention alleges that in June, cation as described in their amended declar1889, Henry L. Haupt made discovery of min- atory statement; but they pleaded that eral-bearing quartz in place within the bound- Haupt in 1889 located the Sunbury claim, aries of placer 765, and upon the same lode while the Green Copper was not located unor vein which was known to exist at the time til 1891, and the evidence discloses that the application for placer patent was made; that Green Copper discovery shaft is within the Haupt made and completed his location, des boundaries of the Sunbury claim; that, if ignating it the Sunbury quartz lode mining the Sunbury was a valid location, it is difficlaim. It is also alleged that in January, cult to understand how they can predicate 1891, Ginsberg and others made discovery any right upon the Green Copper claim, or of mineral-bearing quartz in place upon the the same claim as described in their amended same vein within the boundaries of placer declaratory statement. 765; that they made and completed the lo Other questions are suggested in the briefs, cation of the Green Copper quartz lode min but they are not necessary to a determination ing claim; that by mesne conveyances the of the cause upon this appeal, and may not interveners became the successors in interest arise again; but for the errors heretofore conof the locators of the Sunbury and Green Cop- sidered the judgment and order are reversed per claims, and thereafter filed for record and the cause is remanded for a new trial. an amended declaratory statement of the

Reversed and remanded. Green Copper claim, "and ever since have held and owned the property under said

BRANTLY, C. J., and SMITH, J., concur. amended declaratory statement." All these allegations were denied. Upon the trial, the

(20 Idaho, 1) interveners did not offer any evidence in sup

ROSE v. DUNBAR, Probate Judge. port of the allegations above. It is insisted, however, by counsel for interveners that they

(Supreme Court of Idaho. May 16, 1911.) were relieved from making such proof by a

(Syllabus by the Court.) stipulation entered into by counsel for the 1. EXECUTION ($ 69*)-ISSUANCE. respective parties at the trial, as follows:

Under section 4475 of the Rev. Codes, ere"First, that the plaintiff has acquired what-cution may be issued after the death of the judg

ment debtor for the enforcement and collection ever right was given by [the placer) patent of a judgment, where the judgment is for the to the original patentees to the premises that recovery of real or personal property, or for are herein in dispute; second, that the inter- the enforcement of a lien thereon. veners have acquired whatever right was ob- Cent. Dig. $$ 155-158; Dec. Dig. $ 69.*]

[Ed. Note.--For other_cases, see Execution, tained by the location of the Green Copper, 2. EXECUTION ($ 69*) — ISSUES DEATA OP the Sunbury, and the Green Copper as JUDGMENT DERTOR-JUDGMENT FOR ENamended."

FORCEMENT OF LIEN." In finding No. 8 the trial court accepted lection of a debt, and an attachment is issued

Where an action is instituted for the colinterveners' theory, and decreed to them the and levied on property of the debtor and judgvein and 25 feet on each side for 1,500 feet, ment is thereafter entered, and prior to the isand thereby carved out of the ground claimed suance of an execution the judgment debtor by plaintiff a parcel 50 feet wide and about tion of the same, under the provisions of sec

dies, an execution cannot issue for the collec1,500 feet long. That the stipulation is not tion 4475, Rev. Codes, for the reason that such

a judgment is not a judgment for the "recovery, issue an execution for the collection of the of real or personal property, or the enforcement judgment rendered and entered prior to the ment, and does not fall

within the purview of death of the judgment debtor. Counsel bases section 4475, Rev. Codes.

this contention upon the provision of section (Ed. Note.-For other cases, see Execution, 4475, Rev. Codes; that statute, in so far Cent. 'Dig. $$ 155-158; Dec. Dig. & 69.*] as it bears upon the question here in issue,

Petition by Edward Rose for writ of man- reads as follows: "Notwithstanding the death damus against William C. Dunbar, Probate of a party after the judgment, execution Judge. Demurrer to petition sustained. Ac- thereon may be issued, or it may be enforced tion dismissed.

as follows. * * * (2) In case of the death B. P. Bradford, for plaintiff. Wyman & of the judgment debtor, if the judgment be Wyman, for defendant.

for the recovery of real or personal property,

or the enforcement of a lien thereon." It is AILSHIE, P. J. This is an original action contended by counsel that a valid attachment, commenced in this court, praying for a writ issued against the property of a debtor durof mandate against William C. Dunbar, pro- ing his lifetime, creates a lien on such propbate judge of Ada county, directing and com-erty and subjects the property to the paymanding him to issue an execution upon a ment of any judgment obtained in the action, judgment obtained in the court of which he and that an execution issued thereon falls is judge, which judgment was entered in an within the provisions of section 4475, supra, action wherein Edward Rose was plaintiff authorizing the issuance of an execution for and Frances Richardson, now deceased, was the recovery of a judgment for the enforcedefendant.

ment of a lien on real or personal properIt appears that on the 16th day of April, ty. Counsel for the defendant contend, how1910, the plaintiff herein instituted an ac- ever, that a judgment rendered in such case tion in the probate court of Ada county is a simple money judgment, and is not a against Frances Richardson for the recovery judgment to enforce any lien of any kind, of a sum of money due on a promissory note, and that the attachment lien is simply a and that on the 25th day of the same month supplementary proceeding authorized by the plaintiff procured a writ of attachment to statute, for the purpose of aiding in the colissue, and caused the same to be levied upon lection of such judgment as may be rereal property belonging to the defendant, covered. Richardson. Personal service was had and [2] It seems clear to us that any lien acobtained, and on the 12th day of May, 1910, quired merely by reason of the issuance of defendant having failed to appear, a default an attachment, in an action to collect a debt, was entered, and judgment was taken against is not a “judgment for the enforcement of a her according to the prayer of the complaint. lien" of any kind. The “judgment for the Thereafter, and on the 18th day of May, an enforcement of a lien" mentioned in subdiabstract of the judgment was taken from vision 2 of section 4475, supra, evidently has the probate court in conformity with the reference to a judgment which forecloses a provisions of the statute and filed with lien of some kind against either real or perthe recorder of Ada county, that being the sonal property, and authorizes and directs county in which the real estate was situated. the sale of the specific property to satisfy On the 3d day of June, 1910, the judgment the judgment. The statute has reference to debtor, Richardson, died, and thereafter an a judgment for the foreclosure of a real administrator was duly appointed to admin- estate or chattel mortgage, a laborer's or ister the estate of the deceased. On the materialman's lien, agister's lien, or a pledge 18th day of April, 1911, the plaintiff applied of personal property, or some other lien that to the defendant herein, William C. Dunbar, has been created, either by contract or statprobate judge of Ada county, for a writ of ute, and that the party in whose favor the execution to issue out of his court for the lien exists has foreclosed or taken the legal satisfaction of the judgment, and the court steps necessary to reduce the same to a declined and refused to issue the same. The judgment and authorize the sale of the propdefendant has filed a demurrer to the peti-erty on which the lien issued. It was evition, charging that the petition does not state dently the purpose of the Legislature in facts sufficient to constitute a cause of ac- the enacting of section 4475 to preclude the tion.

issuance of an execution after the death of [1] It is conceded by counsel for the plain- the judgment debtor on a plain money judg. tiff, in the first place, "that under the com- ment, and in such case a lien acquired by mon law, if defendant died after judgment attachment, or other statutory process in aid and before issuance of execution, no execu- of the collection of the judgment, could not tion could issue upon such judgment.” It be enforced by execution after the death of is contended, however, by counsel that the the judgment debtor. Our statute is pracstatutes of this state have modified the com- tically the same as the statute of California mon-law provision to such an extent that and the statute of South Dakota, each of it was the duty of the court in this case to which have received a construction to the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

same effect as we have above reached. See order to supply him with water for the comMyers v. Mott, 29 Cal. 359, 89 Am. Dec. 49; ing irrigation season. Appellants employed Yankton Savings Bank v. Gutterson, 15 s. a man to rebuild the dam, and the contracD. 486, 90 N. W. 144.

tor took his supplies and went on the ground The defendant judge properly denied the and commenced the work. The contractor application for the issuance of a writ of ex- testifies in part as follows: "I went down ecution. The demurrer is sustained, and there and commenced to plow the dirt where the action is dismissed. Costs awarded in we were supposed to put it in and fill up the favor of the defendant.

gap, but had to quit. We could not get in

with the horses; the horses mired down. SULLIVAN, J., concurs.

Then we went up on the hillside and tried to plow; but we could not do anything, nei

ther plow nor scrape, so we had to quit. I (19 Idaho, 739)

stayed there for two days. After the two RIOS v. AZCUENAGA et al. days were up, I sent a man up to town. He (Supreme Court of Idaho. May 1, 1911.) wanted to go up. I told him if he should

meet Gus Azcuenaga to tell him to come (Syllabus by the Court.)

out, I wanted to talk with him. 1. WATERS AND WATER COURSES ($ 263*) When we commenced to plow on the hillside,

IRRIGATION CONTRACT-ACTION FOR BREACH
-SUFFICIENCY OF EVIDENCE,

we could not do anything; I could not do Evidence in this case examined, and held nothing; it wasn't pay enough to make a sufficient to support the verdict and judgment. living by; that is, we could not work it to

[Ed. Note. For other cases, see Waters and feed our teams. That was the reason we Water Courses, Dec. Dig. $ 263.*]

quit; we could not work it to feed our 2. NATURE OF ACTION.

Held, that the action in this case was for teams. Could not do enough work to do any breach of contract to supply the plaintiff with good. Mr. Azcuenaga didn't come, and we water sufficient for the irrigation of his crops, couldn't talk over the matter of pay. In and that the action was not one for injury or trying to move this dirt that was soft, the damages to growing crops. 3. WATERS AND WATER COURSES ($ 263*)—IR- first thing we done caving the bank down

RIGATION CONTRACT–ACTION FOR BREACH- from the washout—what was left of it-so FAILURE OF DAMAGES.

we could drive down with the team to scrape Instruction given in this case considered, the dirt. It took some part of the time. and held that it substantially stated the law ap- Then we commenced to plow after that. The plicable to such case.

[Ed. Note.-For other cases, see Waters and team mired down, and we used some sageWater Courses, Dec. Dig. $ 263.*]

brush to keep them out of the mud; but we

could not make any headway with it, and we Appeal from District Court, Canyon Coun- finally had to give it up; that was all there ty; Ed. L. Bryan, Judge.

was to it. * . I was to get 25 cents Action by Frank A. Rios against Antone per yard for it. After I could not work in Azcuenaga and others. Judgment for plain the dirt work what I was supposed to take tiff, and defendants appeal. Affirmed.

in, I tried to go up on the hillside; I didn't Rice, Thompson & Buckner, for appellants. know it was all rock at that time I started; J. A. Elston, for respondent.

then I found it was all rock, and I couldn't

do it. I could not afford to move that ground AILSHIE, P. J. On the 23d day of Oc- for 25 cents a yard, because it was all rock. tober, 1907, the appellants and respondent That is why I wanted to see Mr. Azcuenaga entered into a contract whereby appellants to tell him I could not afford to move that sold to respondent "a perpetual water right ground for 25 cents a yard. Probably if I of 140 miner's inches of water under a four- had been paid the proper price per yard to inch pressure, and one-half mile of ditch that move that ground, I would have gone on and will carry said water to the southwest cor- completed the work; I am not sure." ner of" the land described therein. It was The dam was not constructed, and so no further provided in the contract that the ap- water was collected for the season of 1909, pellants should build and construct a dam and respondent was not supplied with water 15 feet high “to supply said water for the for the irrigation of his crops for that year. water right" sold and transferred. The con- He broke and prepared about 60 acres of tract also contained the following paragraph: land, and seeded about 25 acres. He got & "It is agreed by the parties of the second good stand of barley and wheat, but was not part,” who are the appellants in this case, able to mature any crop, for the reason that "that if the dam should break or be washed he had no water, and the crop burned up beout, they will rebuild the same."

fore maturing. He thereafter commenced The dam was built and constructed, and this action to recover damages for the failabout January, 1909, it was washed out and ure of the appellants to comply with the destroyed. Respondent immediately notified terms of their contract and supply him with appellants of the destruction of the dam, water, or to construct the dam and keep it and requested them to rebuild the same in l in condition to collect the water in order to

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