Stock v. Plunkett

I dissent. The main opinion in its discussion is beside the mark and touches upon the real point involved only in the most casual fashion. Its conclusion is rested primarily upon the authority of Butte Superior Copper Co., Ltd., v.Clark-Montana Realty Co., 249 U.S. 12, [63 L.Ed. 447, 39 Sup. Ct. Rep. 231], very recently decided by the supreme court of the United States. The essential facts in that case were that while the first locators were in actual — not merely constructive — exclusive, and notorious possession of the claim and working it, the second locators attempted to locate it, relying upon the fact that the notice of location by the first locators was defective in some particular required by the statutes of Montana, in which state the claim was situate. The court held that under these circumstances the second location was inferior to the first, putting its decision in express terms solely on the ground "that the Elm Orlu people [the first locators] were in possession of their claim, working the same — of which the Black Rock people [the second locators] had knowledge — and hence the latter could not avail themselves of the defects in the location of the Elm Orlu." Without exception every decision cited in the main opinion here to support its conclusion upon this point involves similar facts. These decisions are to the point alone, that where a would-be locator has notice or knowledge of a subsisting and genuine prior location, and particularly when the first locator is in actual possession of and working the claim, which fact is notice to all the world, the would-be locator cannot take advantage of defects in the posted or recorded notice of the first locator, that he has in fact the notice or knowledge which it was the purpose of the statute should be given by the posted or recorded notice required, and that having such notice or knowledge it is enough.

But the present case is not of that character. The first locator made his location on November 13, 1914. He posted a location notice, but it was undated. The location would expire at the end of the following year unless the necessary assessment work was done. It was impossible for anyone reading the notice to know when it would so expire or in the absence of assessment work that there was a subsisting location there claimed. Nor did the first locator record his notice so that any information could be derived from that source. He did not do the assessment work or remain in possession of the property. Some ten months later, in September, 1915, the second locator came upon the ground which was wholly unoccupied. So far as appears he had no notice or knowledge of the first location, except such as he received from the undated notice of the first locator, which he found and read. But this did not, as has been indicated, inform him as to the essential point for which a posted and recorded notice is required by the statute, namely, that there was a then subsisting location. So far as he could tell, the ground might at that time have been wholly unclaimed and open to location. The second locator, by an employee, remained in actual possession of the property, doing work thereon until the following month, October, when the first locator came upon the scene, rifle in hand, to do his assessment work, and ejected the employee of the second. It is plain that such facts are not within either the actual decision or the principle of such cases as Butte Superior Copper Co., Ltd., v. Clark-MontanaRealty Co., supra.

On the other hand, the facts do bring the case within the principle of Butte City Water Co. v. Baker, 196 U.S. 119, [49 L.Ed. 409, 25 Sup. Ct. Rep. 211, see, also, Rose's U.S. Notes], where it was held that the first location was inferior to the second, when the notice of the first location did not contain certain matter required by the Montana statutes. The main opinion here cites the last-mentioned decision as one "where the local rule or statute did expressly declare such invalidity." The decision is not put on that ground and the statute did not in fact so provide. (Butte Superior CopperCo., Ltd., v. Clark-Montana Realty Co., 248 Fed. 609, 612, [160 C. C. A. 509].)

The true doctrine of the cases may, I believe, be stated with fair accuracy as follows: (a) If the requirements of the statute are observed, the location is valid and is protected against subsequent locators, regardless of whether they have notice or knowledge of the first location or not. (b) Conversely, if the requirements of the statute are not complied with, as, for instance, if the location notice is defective in a material particular, and a second location is made in good faith by a party who has neither knowledge nor notice, actual or constructive, of the first location, the first location, being defective, will not be protected but is inferior to the second. If this is not the case the whole state statute might just as well have never been enacted. (c) If the first location be defective, but the second location be made by a party who had knowledge or notice of the prior location, and particularly where there is such notice because the first locator is in actual possession working the claim, the first location, although defective, is nevertheless superior to the second location so made.

If the foregoing is a correct statement, the first location here was defective and the real question in the case is whether or not the reading by the second locator of the undated notice posted by the first, is sufficient to charge him with notice of the first location. Practically all that is said in the main opinion on this point is that the second locator by inquiring of the first could have ascertained the date of the location, and therefore he should be charged with knowledge of it. But could the second locator inquire of the first? He may not know who he is or where he is to be found. If the first locator is a wandering prospector who has apparently gone his way and the notice is old, as it was in this case, finding him would be a most uncertain task. Locations are frequently, if not usually, made in remote and almost inaccessible places, and the legislation should be reasonable as to locations so made. It seems to me wholly unreasonable to require of a locator prospecting ground on which there is an old and undated location notice either to spend days, weeks, or maybe months, hunting the first locator or else to spend his time, labor, and possibly money in making a discovery at his peril. It is easy to imagine, also, just how much information the first locator would probably give when inquiry was made of him, and just how much reliance could be placed in any statement he might make. In the majority of cases the only result of an inquiry of the first locator would be a hasty and immediate trip on his part to the claim to see what was there, with a consequent probability of litigation and a fair chance of more violent methods of settling the almost certain dispute. I do not believe the second locator can properly be charged with the duty of inquiring of the first under such circumstances.

Rehearing denied.

All the Justices, except Olney, J., concurred.