Conner v. McPhee , 1 Mont. 73 ( 1868 )

Knowles, J.

The first question presented in this case is one of practice. Can the plaintiffs in an action move to set aside a nonsuit when they have consented to it, upon its becoming apparent, from the rulings of the court, that they could not recover, basing their motion upon alleged error in the rulings of the court, which induced them to consent to the nonsuit ?

Such practice we hold proper. See Natoma Water hold Mining Co. v. Clarkin, 14 Cal. 544. A nonsuit in such cases is treated as and governed by the same rules as an involuntary nonsuit.

The only ground of error assigned which we deem it material to examine, is the exclusion of the evidence offered by the appellants.

They offered in evidence the records of Madison county, showing the record of Conner’s location of the ground in dispute ; a deed from Miuiss to Conner of twenty-five feet of the ground in dispute; a deed from Conner to O’Neal of one-half of the ground in dispute; and, lastly, they offered to prove by the testimony of Conner the number of feet staked off by him for the claim number one, south-west from discovery on the Ore Cache lode, the size of the stakes, the notice written on them, and the amount of labor performed on said claims within six months after the location of the same. The record of location offered did not specify the number of feet claimed. The court refused to allow the appellants to prove these facts, until they should first lay the foundation therefor, by proving “that the claim in controversy was pre-empted, and appears on the record in due form as embracing the number of feet claimed for it by plaintiffs.” This is the exact language of the bill of exceptions, and would imply that the court held that the record of the location of a quartz claim should specify the number of feet claimed, and that the appellants, in this case, should first introduce such a record before they could introduce other evidence. This we hold error. The language of the Idaho statute, in relation to the location and recording of quartz claims in force at the time of the location and recording of the claim in dispute by appellants, is as follows :

“All claims shall be recorded in the county recorder’s office within ten days from the time of posting notices thereon.”

What record must a locator of a quartz claim make to satisfy this law % Courts generally give to such a -statute the interpretation usually accorded to it by the people who use the terms therein employed. Recording a claim is a phrase used among the locators of mining claims. It is a law maxim of general application that contemporaneous exposition of a statute has great strength in controlling its interpretation. By examining the records of quartz claims in the several counties of this Territory, which were once a part of Idaho, and the records of quartz claims of the several counties of Idaho, at the time this law came into force, and we will arrive at some conclusion as to what was generally ■understood by the locators of quartz claims at that time, was a compliance with the law requiring the recording of quartz mining claims. An examination of these records, we are confident, will show that it was not generally considered necessary to state in the record the number of feet claimed. This seems to be conceded by the attorneys for both parties. And it is contended by the attorneys for the respondent that the court did not rule that a record should show the number of feet claimed. If such was the case, we do not understand the bill of exceptions signed by the judge who tried the cause, or why the record of appellants’ location was excluded. If the court had no objecions to Conner’s testimony, and only directed that there should be first introduced the record of his location of the claim in dispute, and did not hold that this record should specify the number of feet claimed, the very record demanded had already been offered in evidence, and one of the objects of Conner’s testimony was to establish the number of feet in claim number one, south-west from discovery in the Ore Cache lode, at the time this record was made. If the ruling of the court is not as we understand it, then the language used in the bill of exceptions, signed by the judge who made the ruling, is very unfortunate.

We have been led to infer, however, from the arguments of counsel on both sides, that the bill of exceptions filed does not fully present all the difficulties experienced on the trial of this cause. Hence we have felt that it was difficult to render a decision which might not mislead the parties on a re-trial of the cause. We can, however, be governed only by the record presented to us. It is very defective, and, perhaps, on our own motion we ought to have sent it back to be perfected.

We might follow at some length the arguments of the counsel for respondent, and show that notwithstanding the facts may have been as presented in their argument, still the court erred in excluding the testimony offered. But should we do so we might be.justly accused of presenting as many immaterial matters, in our opinion, as there are immaterial issues presented by the pleadings in this cause.

In accordance with the views above expressed, the judgment of the court below is reversed, a new trial granted, and the cause remanded for further proceedings.

Exceptions sustained.

Warren, C. J., concurred.