Custer weekly chronicle. [volume] (Custer City, S.D.) 1890-1931, 1899-01-07

obtain the title to the lode, but he ha
not such right by virtue Of his prio
placer appropriation. This right to sp
} propriate the lode must flow from til,
d scovery of the lode. Whosoever frs
discovers the lode may appropriate it b,
complying with the laws comforting pri
vileges upon such discoveries. If h'
fails to do so, 1t is open to the mex
conner, and this rule applies to tht
placer claimant as we'll as to the
strangers. IT. having discovered it, he
fails to manifest his intention to claim
it by appropriating 1t under the lode
laws it NAV be subject ofappropriatlon
by others. the same as if it were upo n
the public domain; provided, always
that such appropriation is made and
perfected peaceably and in good faith
! Lindley on Mines, sec. Alb. However
this may be with respect to strangers
there is certainly no reason for holding
that the owner Of an unpatented placer
claim cannot locate a lode claim. OIL
consent to such location being made
by others, within the boundaries OF his
placer claim. Under such circumstances
II would hardly be logical regard to the
placer owner as a trespasser upon his
own premises, and. as we shall attempt
to show hereafter. the defendants are
estopped from questioning the validity
Of the Tin Bar claims, to the injury of
plaintiff. We think the learned circuit
court erred in concluding that the Tin
Bar No. claim was invalid in its in
ception. because the point Of discovery
was within the boundaries Of the placer
claim.
If the Tin Bar claims were located
W hen application for patent to the placer
was made they were not affected there
by, no application for lodes having been
included in the application for the
placer patent. Noyes vs.. Mantle. l27
u. s. 348; Iron S. M. Co. vs. Mike &
Starr g. & 5. NJ. Co. IL Sup. c. Rep.
543.
AS to what constitutes discovery
within the meaning of the federal stat
utes has caused the courts no little
trouble. 1t might be difficult to deter
mine in this case, from the findings OF
the trial court, whether any discovery
was ever made upon either Tin Bar
claim. but are these defendants in posi-
tion to allege or prove, as against the
plaintiff, that the declarations contain
ed In the recorded location certificates
were false and that no disroy-
cries were, in fact, ever made? We think
not. Can the locators of these claims
be heard to contradict their own record
ed representations, TO the injury Of this
plaintiff? IL is disclosed by the evi
dence that plaintiff purchased his own
interest in the Tin Bar claims for val
liable consideration, after an examina-
ton of the records, relying upon the
location certificates which we're placed
upon the public records by the locators
for the purpose Of selling the property
as mining claims. Where one by his
conduct Intentionally causes another to
believe in the existence of certain
state of facts and induces him to act on
| that belief, the former is estopped from
averring against the latter the existence
OF different state of facts at the same
| time. The locators Of these claims, with
actual knowledge Of the facts, caused
location certificates TO be recorded,
| thereby representing that discoveries
had been made OH each, with the ex.
pectation aud intention of inducing per-
sons who might examine the records,
to believe that they were the owners of
properly located mining claims. This
conduct produced intended results.
They sold an interest in the claim,
| plaintiff examined the records. was in
duced to believe that the claims had
been legally located and acted on such
belief. Whatever rights he has in this
action depend upon the facts which the
conduct of the locators induced him to
believe existed when his interest in the
claims was acquired. 1t would be tra-
vesty on justice to permit the locators 10
now impair snch rights by asserting that
their recorded representations were
false. Neither Of the defendants is in
any better position than the origin,
locators and all estopped from denying
the validity of the Tin Bar locations.
1t being determined that, for the pur-
poses of this action, the Tin Bar claim 9
were valid in their inception, the mai n
controversy Is whether, when the annu-
al assessment work has not been done
upon mining claim, one cotenant there
in can relocate the same and obtain
title thereto not only as against the
world, but AS against his cotenants. We
are not aware that the precise question
here presented has ever been decided
by any court of last resort. Ii is well
settled that cotenants stand in a certain
relation to each other Of mutual trust
and confidence; that neither will be
permitted to act in hostility 10 the other
in reference to the joint estate; and that
distinct title acquired by one will in
ure to the benefit ofall. This principl e
arises from the priyity subsisting be-
tween parties having a common posses.
sion of the same land, and common
interest in the safety of the possession
of each, n it only inculcates that good
fItf A, u.h ts.h r
relative position Venable va. Beau
champ, 8 Dana 32l. 1t has been applied
to mining property by the federal SUI
preme court. In a case in that court
where one had acquired an interest in
sheriff's sale, and obtained patent to
the entire property to the exclusion OF
another, who was found to own an in
terest therein, it was decided that the
patentee held the title in trust for his
cOtenant, that court Of equity would
enforce the trust and that the exclud'
ed cotenant was not required to adverse
the application for patent, Turner vs..
Sawyer, l50, U. S. 576: IA Sup. CT. Rep
1872. Therefore the only question to be
determined in this connection is wheth-
er the relation of cotenant existed be.
tween plaintiff and Franklin when the
latter located the Holy Terror and Key
stone claims. "A mining claim per-
fected under the law is property in the
highest sense of that term, whicl, may
be bought, sold and conveyed and will
pass by descent" Belk vs.. Meagher,
lO4 U. S. 279. Actual possession Of the
claim is not essential to the validity of
the title obtained by valid location,
and until such location is terminated by
abandonment or forfeiture, no right or
claim to the property can be acquired
by an adverse entry thereon with a
view to the location thereof. Belk vs.
Meagher, supra. Abandonment is al
wavs a ouestion of intention. In for