The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-02-06
Important Ruling in Regard to
representation Work on
Groups Of Claims
The Question OF Trolling Dam
ages for Trespass Involved
In tho Case.
Decision Regarding an Attaohment-A
Masdamus on the CLERK Of the Dis
trlct Court Refused.

~
Donald 81 al. plaintiffs and respondents,
versus the Montana Wood company. de-
PENDANT and appellant; appeal from The
district court OF Jefferson county. On
Sent. %. 1880, plaintiffs. seven in number
and Thomas Jovss. located the "Landloek
placer mining claim" 10 Jefferson county,
which they estimated ~ the time contained
l6O acres, but which afterwards by sur
vey, was found 20 contain about % acres.
They made but one discovery on the entire
100 acres and marked the boundaries by
blazing a tree az each corner Of the entire
tract OF ground. They also marked tree
a. the discovery shaft ana posted notice
containing the names OF all the locators.
ana description Of the Ground claimed.
The tract Of land so located was not snbdi-
vided into twenty-aere claims. During 1891
they did work and made improvements on
the entire tract to the amount OF about
$50. The complaint. which was hled Nov.
n. 1891. charged that In December, lo99
and az other times the company knowingly,
willfully and malioiously. entered upon
the land without the consent OF the plain
tias. and cut down aud carried away a
large amount Of trees and timber growing
thereon. etc, claiming actual DAMAGES OF
$500 and asking Judgment for teble dam
ages under section 1853. code OF civil pro-
cednre The iury returned n verdict for
plaintiff IN tue sum OF S5t9. 65 ~ actual
damages. which they tObied, making the
sum Of Sl.64s.49, for which sum judgment
was rendered. Defendant moved Tor new
trial. which was Overruled. The defeEdant
nppsAlod from the Judgment and the order
refusing a new trial. The supfeme court
''Ihs appellant contends that the loea-
zion OF the mining claim Ia the manner de-
scribed is nulhty and conferred upen
plaintiffs no right or title 10 the 'LanaloeA
Placer Mining Claim that under the law
the plaintiffs should have made discovery
on each twenty acre : set which should
have been marked uron the surface
thereof. so that the boundaries could have
been readily traced that separate
location OF eaeh iNeaJ sore . -.
was necessary under tie law, and that
work OF Improvements Of she value OF Sl0J
ahould have been done on each twenty acre
tract for the year 1881. Section 2asl r.
vised statutes OF the nitei states, among
other things. provides; Bat no location q
n placer claim % ade after oily .. $50, shall
eIcsed leo acres for any one person OF as
aoeiatioa OF persons. his eiaiute, 10
seems TO u coufsrs the right upcn an asso-
citation Of nos leas than tleht pefsols 70
locate not so exceed l6l acses % one claim
This has been tte holding ans ruling q ths
as far So vs have been Ee4s &c ciseoTef;
and patents have uniiofnly issaea n such
cases when the showing Of az expenditure
OF 500 in work o. IN roVeIents aFon any
part Of the lll acre claim.
The Hppellant further c5ntsnds that the
evidence shows fsai the plaintiffs bad for
feitsd any right OF fitls they may have lad
20 ths ground N coatroV5rsT, ~ failing 90
do ths required au0uli OF uofk thereon
for the year l-sl. Tie evidence IN this
case thoEs thai work q The valus O. sbo1t
$3.50 was done for that year open tie entire
cain. II under the decisions O. SIC land
department and re tendency % ths g.
jndicution " the con ts, s 30 n Vcrk arc
imp oysmsntA On any part q l1j acre
oiain, or any one q number OF conilzu-
ons claims sufficient 20 cntitlo applicants
10 d patent for the whole % s1ch ground or
claims thea bT paTity Of reason 10 would
seem that 500 IN work OF imTrovemeuts
expended or made upon such 10 acle claim
IN any one year would save % from for
feltuTe. such seems 20 be the view taken
b. the land Offices, and 10 10
socordtnse With the customs, rules
and regulations OF miners ia
this Jurisdiction. Bat In this case O forfeit
IRE vas mol pleaded By appellant IN its an
sWe-, although the court below permitted
evidence OF the amount Of work done on
said claim for the year 1891. There Is no
evidence OF s re-entfy or relocation By any
one on account OF failure TO do the required
work By plaintiffs on said ground. Nor
does the defendant connect itself with any
outstanding title adverse 10 plaintiffs. or
plead any license or warrant 90 enter upon
the ground in controversy. We do NOT
find anything IN the record TO support the
plea OF forfeiture.
~ is further contsndeds by tine appel
liant shat in this case. II IL we're liable for
nctuhl damages the court below erred In
rendering Judgment for treble damages.
mil nau co.
wilful and malicious treEpRss, but resloud-
snta contend thGt Notwithstanding the
complaint charges vilful sud malicious
tfospass they are nevertheless entitled to
treble damages, under section a6j, code Of
civil procedure. The respondents contend
that it was not necessary under said section
10 allege or prove malics, WantOnness. or
evil design, etc"
After quoting Authorities on this point
She auprems court says; Ia the case a.
bar the evidence shows that the land IN
controversy was located out Ia the Wiltsr-
ness. far aWsy from human habitHtion.
The plaintiffs had 20 cot a trail through the
timber 10 get 10 Is. ! he defendant coming
- the land from another direction. had 20
cut q trail also. The defendant found but
little evidence shat auy Of the land IA tie
vicinity lad ever been claimed by any yer
aon for any Iuri oas. Except the blaziug Of
four or i've trees, aud a small discovery
shaft on she ground IA controversy, as the
work Of plaintiffs, there was nothing 10 IN.
dictate that BODY claimed ownership OF
dominion over any psrt Of the country
thefeAbout. The circumstances attending
she tTesphsa complained Of here ars vastly
different from case whero a person ont.
down 9 shade tree In front of smother mana
house Or lot or enters another's close and
dEmaRes trees or timber therein. when all
she evidences Of ownership IN another
present. These are the acts and tfespasaea
We think are intended 10 be denounced and
Punished By our statnts The evidence IN
the case does uOt support the contention
shat there vas any Willfulnesi, wautonuess
or mAliciousueG6 in tie acts or conduct OF
tie defendant. We therefore think that
tAs evidence did not Justify the entering Of
judgment for treble damages
'lt iE ordered that the iudgmsnt o. the
court below be modified by rendering judy-
ment in favor OF plaintiff. nRainut tie de-
Pendants. Tor the amount ~ tctunl dam
agea found By the jury. aud "a oiEsr re
ayscta the Judgment o. Affirmed o. mod
1ed.' Opinion b. Chief Justice PsmIrr-
ton. Associate Justice llarwoot coneurring.
Another opinion was IA the cas- Of j. T.
Ma tan, administrator. appellant ssrrus
Daniel Nancy e. A.. Tt6poudants. aupsal
from Gallatin county. HE action r. III
hundred nature and mainly determined bv
RYAN Veraus MaHey. iuat decided, with Z
lev slight distinctions. Martin iuslated
shat the attachmsnt lien. acquired ~ az
clmeut OF the property in contravsr.v
was lost By taking out execution Hud SELL
iuE the attached property thereon. VIII
re appeal from tbs order Of Judge ]. q lel
dissolsing the attachment ives pending Do