Saunders v. Mackey , 5 Mont. 523 ( 1885 )

Wade, C. J.

This is an action to quiet the title to a mining claim and for other relief, in which there was a demurrer to the complaint sustained, and a judgment for defendant, from which.plaintiffs appeal. The complaint substantially alleges that, in the year 1882, Julia D. Saunders, who is the wife of. her co-plaintiff, Cole Saunders, and^ one E. G-. Marshall, and this defendant, respondent herein,. were the owners of, and tenants in common in, the “Belle of the Boulder” and “Eclipse” quartz lode mining claims, situate in the “Boulder mining district,” Jefferson county, and entitled to the possession thereof; the said Julia D. Saunders owning the undivided one-half of each of said claims, and the defendant and said Marshall owning the other undivided one-half thereof; that being so tenants in common, it was agreed by and between the said Julia D. Saunders and the respondent, that the respondent should do the representative work necessary 'under the laws of the United States, to be done in and upon said mining claims to represent the same for the year 1882, in consideration whereof the said Julia D. Saunders promised to pay the respondent the sum of $)100 therefor, that being the portion of such representative work necessary to preserve plaintiffs’ interest in, and to, said mining claims from being subject to relocation; that the appellants, relying on the promise of - the respondent to do, or caúse to be done, such representative work, neglected to do and perform said work, or cause the same to be done, before the 31st day of December, 1882; that the respondent, designing to cheat and defraud the said Julia D. Saunders of her intei’est in said mining claims, after the time for representing the same had passed, relocated a portion of said claims as the Baltimore lode mining claim, and ousted the appellants of their possession of the premises; that appellants desire to represent said claims for the year 1883, but that respondent will not permit them so to do, and by force and threats prevents them from performing any work on said claims; that respondent is insolvent and unable to respond in damages, and that appellants have no speedy or adequate remedy at law. Wherefore, they ask that the “Baltimore ” location be set aside so far as the same embraces any portion of the “Belle of the Boulder” and “Eclipse” location; that appellants be let into the possession of said claims, and that respondent be enjoined from preventing appellants representing the same.

It appears from these allegations that the ‘ ‘ Belle of the Boulder ” and “Eclipse” claims were not represented for the year 1882, and the reason assigned for not representing them is that promise and agreement of respondent that he would do the work for the purpose, which he failed to perform. This question is presented: Does a location, with a promise to represent, save a mining claim from forfeiture or protect it from relocation after the time for representation has expired? The act of congress of May 10, 1872 (United States Revised Statutes, section 2324), under which the claims in question were located, provides as follows: “On each claim located after the 10th day of May, 1872, and. until a patent has been issued therefor, not less than $100 worth of labor shall be performed, or improvements made during each year; . . „. and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made.”

Title to the public mineral lands is acquired and held by discovery, location and representation, in the manner provided by law. Representation from year to year keeps alive the grant. If representation fails, the grant fails, and the ground is open to relocation and purchase. The terms of the law are absolute. There are no exceptions. If the representative work for the year is not performed, the ground located becomes again a part of the public domain. An agreement to represent is not a representation. After the period of representation has expired, an agreement to represent, not performed, cannot save a claim from forfeiture and relocation. Such an agreement would not have the effect to keep alive the grant. It would not revive a right already lost. It would not tide over the period of representation from year to year, and prevent a relocation of the ground. It is not material for what reason there has been a failure to perform such an agreement. The conclusive fact is, that the ground has not been represented. Congress alone has authority to dispose of the public lands. If an agreement between individuals could prevent a relocation of the public mineral lands, then the primary disposal of the soil may be taken from congress and confided to the contracts of private parties. The fact that these parties were tenants in common does not affect the question of representation. Mining claims so owned must be represented as if owned by one person. Eepresentation is a unity. The co-owners may cause representative work to be done on the claim, according to their respective interests; but when' completed it must amount to one whole representation; otherwise, the claim is not protected from relocation. Any co-owner or co-tenant may represent the claim, and compel those interested with him to bear their proportion of the expenses; but the claim must be represented, and the agreement of a co-tenant to bear his proportionate share of the expenses is not a representation, and does not relieve him from the consequences of a failure to represent.

The complaint alleges that the respondent promised to represent said mining claims, and that the appellant, Julia D. Saunders, in consideration thereof, agreed to pay him $100 therefor, that being the portion of such representative work necessary to preserve her interest in the claims. But the necessary work for that purpose was a full and complete representation of the claims. There was no consideration for the promise of respondent to represent his own interest or that of Marshall. He was, therefore, under no legal obligation to represent the claims for himself or Marshall. And if an agreement to represent could, in any case, protect a claim from relocation, the agreement in question is wholly insufficient, for it only provided for one-half the work necessary to represent the claims. If the respondent had performed the $100 worth of representative work fo*r Julia D. Saunders, it would have been of no avail in protecting the claims, unless the interest of respondent and Marshall had been represented, and this was not provided for.

The “Belle of the Boulder” and “ Eclipse ” claims not having been represented during the year 1882, they became thereby a part of the public mineral lands, and subject to relocation on the 1st day of January, 18S3. If the respondent has violated his contract, he is liable to damages for a breach thereof; and if the relations between him and Julia D. Saunders were such as to make him her trustee in the location of the “Baltimore” claim, a proper action would so declare him, and protect her interest therein; but there is nothing in the complaint to invalidate the “ Baltimore ” location and claim.

Judgment affirmed.