N. P. Terminal Co. v. Lowenberg, 2 W. Sweek v. Galbreath, 5 W. C. R. 502... 516 274 303 364 286 O'Leary v. Fargher, 3 W. C. R. 333. Oregon R'y Co. v. Bridwell, 2 W. C. R. 821... 225 282 UTAH REPORTS, VOLUME III. Anthony v. Savage, 2 W. C. R. 674... 277 | Crismon v. Tufts, 2 W. C. R. 449. 251 526 196 Van Winkle v.Johnson, 5 W. C. R. 677. 469 447 271 327 382 Parley's Park S. M. Co. v. Kerr, 2 W. 235 334 396 133 72 425 254 159 Roach v. Gilmer, 3 W. C. R. 258. . 406 3$9 Rolfson v. Cannon, 1 W. C. R. 696.... 232 Salt Lake City v. Hollister, 2 W. C. R. 381 441.. 200 Felt v. Judd, 3 W. C. R. 276. 414 UNITED STATES MARSHAL-DEFENDANT DESCRIBED BY FICTITIOUS NAME-ARREST.-A United States marshal is justified in making the arrest of a defendant, within his territory, who is described in the warrant by a fictitious name. The marshal assumes only the risk, in execution of such a warrant, of arresting the right person. THE SAME UNITED STATES COMMISSIONER MAY ISSUE WARRANT FOR OFFENSE COMMITTED OUT OF DISTRICT.-Such marshal is protected and justified in making an arrest by virtue of a warrant issued by a United States commissioner, although the latter did not reside in the judicial district where it was alleged on the face of the warrant and complaint the offense was committed. APPEAL from a judgment of the district court. The opinion states the facts. Zabriskie & Anderson, for the appellants. Thomas Mitchell, for the respondent. HOWARD, C. J. The only questions presented by the record in this case were, first: Is the United States marshal justified in making the arrest of a defendant within his territory, who is described in the warrant by a fictitious name. We hold that he is, and that the marshal assumes only the risk and responsibility in execution of such a warrant of arresting the right man. If the marshal acts in good faith and exercises due care the defendant cannot complain. In this case it is not contended that the marshal arrested the wrong man. It is apparent that the respondent was the man complained of, and against whom the complaint was filed, although designated by a fictitious name. The suit against the marshal for false imprisonment, based upon the fact that defendant was not described in the warrant by his correct name, cannot be maintained. Sec. 1,014, R. S. U. S., with sec. 89 of chap. 2, C. S. of Arizona, settle this question clearly in favor of the justification of the appellant in making the arrest. The second and only remaining question presented by the record is involved in the fact that the United States commissioner, who issued the warrant, did not reside in the judicial district where it was alleged on the face of the warrant and complaint, the offense was committed. We hold in the reversal of the judgment in this case that the United States marshal was protected and justified in making arrest by virtue of such a warrant. While it is true as a matter of proper practice that commissioners should in ordinary cases confine the exercise of their jurisdiction to the geographical limits of their district, yet, the plain interpretation of the statute: U. S. R..S., sec. 1,014; in cases for the violation of the acts of the federal congress, clearly confers power upon the officers enumerated to issue warrants. This provision, when taken in connection with the other acts of congress applicable to the jurisdiction of United States commissioners, clearly expresses the intent of congress to confer upon commissioners jurisdiction co-extensive with the limits of the territory or state. By no act of congress has this power been limited to the geographical limits of the district or county where such commissioner may reside. The warrant, by virtue of which the arrest was made, being regular on its face, was a protection to the officer executing it. For these reasons the judgment of the court below is reversed, and the case remanded to the trial court for new trial. FITZGERALD, J., concurred. SUPREME COURT OF MONTANA. GARFIELD M. & M. Co. v. HAMMER ET AL. Filed August 15, 1885. MINING CLAIM-LOCATION-RIGHT OF POSSESSION.-The right to the possession of a mining claim is derived only from a valid location; consequently, if there be no location there can be no possession under it. A location is not made by taking possession alone, but by marking on the ground, recording and doing whatever else is required for that purpose by the acts of congress and the local laws and regulations. THE SAME PLAINTIFF MUST PROVE VALID LOCATION-FORFEITURE.-In an action to quiet title to a mining claim, where the plaintiff's ownership and right to the possession are put in issue by the answer, it devolves upon him to show affirmatively upon the trial that he had complied fully with all the requirements of the act of congress, and the local rules and regulations relative to the location of mining claims, and had made a valid location. An instruction, however, to the contrary, is not a prejudicial error, if the defendant did not introduce any evidence tending to invalidate the plaintiff's location, and relied simply upon an alleged forfeiture. THE SAME-LOCATORS PRESUMED TO BE CITIZENS.-In the absence of evidence to the contrary, the locators of a mining claim will be presumed to be citizens of the United States, or to have declared their intention to become such. THE SAME DESCRIPTION OF CLAIM IN NOTICE.-A notice of location of a mining claim which describes it by metes and bounds, and as being a certain number of feet south from a well known quartz location, sufficiently complies with the requirements of the act of congress, as to the description. NEW TRIAL-CUMULATIVE EVIDENCE. -A new trial will not be granted on the ground of newly discovered evidence, if the same be merely cumulative. CERTIFIED COPIES OF RECORDED DOCUMENTS ADMISSIBLE IN EVIDENCE.-Under the statutes of Montana, certified copies of the certificate of incorporation of a corporation, of the declaratory statement under oath of the locators of a mining claim, and of deeds, are admissible in evidence, without first accounting for the original. EVIDENCE-EXPERT TESTIMONY-OPINION AS TO WORK ON MINE.-A witness, not shown to be a mining expert, cannot testify whether, in his opinion, any work had been done on the shaft of a mine, within a given period. FOREIGN CORPORATIONS ARE NOT PROHIBITED FROM DOING BUSINESS in Montana. APPEAL from a judgment of the third district court of Lewis and Clarke county. The opinion states the facts. E. W. & J. K. Toole, for the appellants. GALBRAITH, J. This is an appeal from an order overruling a motion for a new trial. The action was to quiet title. A trial by a jury was had between the respondent and the appellant Hammer. The pleadings, so far as they were concerned, were in substance as follows: The complaint alleged that the respondent "is a body politic and corporate" organized under the laws of the state of New York, for the purpose of mining and milling ores containing the precious metals in Montana territory, and that it has complied with the laws of that territory in relation to foreign corporations. That it is the owner of a certain quartz lode mining claim, situate in "Vaughn (unorganized) Mining District" in the county of Lewis and Clarke, territory of Montana, called the Garfield lode or mining claim. That the respondent is now in the possession of the above claim, and that plaintiff and its predecessors in interest have been ever since the discovery and location of said claim, in possession of the same and entitled to be so in possession thereof. That the appellant Hammer, on or about the first day of January, 1883, assumed to enter upon said premises, and to relocate the same, and had the relocation recorded in the county of Lewis and Clarke as the Kinna lode, and thereby now claims an interest therein and the possession thereof adversely to the respondent, and has made application for a patent to the premises under the name of the Kinna lode. That the claim of the appellant is without any right whatever. That the respondent has filed its adverse claim in the land office, whereby proceedings will be stayed till the final determination of the right to the premises. The answer denies that the respondent ever was, or is, a body politic and corporate, or that it has duly complied with the laws of Montana territory relative to foreign corporations. Denies that the respondent is the owner of the premises, or that it is now, or ever was, in the possession thereof, or that it, or its predecessors in interest, have been ever since the discovery or location thereof, in possession of the same; or are, or were, entitled to such possession; or that he assumed to relocate the said premises, or caused any location thereof to be recorded as the Kinna lode, or that his claim is without right, or that he has not any estate, title, interest or right to the possession of said premises. The appellant then founds his claim to the premises by virtue of a certain location made on the first day of January, 1883, by the name of the Kinna lode, the premises being then vacant mineral lands of the United States; such location having been in full compliance with the laws of congress and Montana territory by one - Wolfe. That on the day of January, 1883, the appellant purchased the premises from Wolfe, and ever since the first day of January, 1883, the appellant and his predecessors in interest have been the owners, held possession, and duly represented said Kinna lode, and ever since said time this defendant has been, and now is entitled to the possession of the same. That whatever claim the respondent ever had, if any, to said premises, was forfeited prior to the first of January, 1883. The reply denied all the affirmative allegations set forth in the answer. Upon the trial the court instructed the jury as follows: "If you believe from the evidence in the case, that prior to the thirty-first day of December, A. D. 1882, the plaintiff was in the quiet and undisputed possession of the premises designated in the complaint as the Garfield lode,-the validity of the original location of which is not questioned in the pleadings or testimony,-claimed by the defendant as the Kinna lode; that the boundaries of said claim were so marked upon the surface as to be readily traced; and that theretofore there had been discovered within said boundaries, a vein or lode of quartz, or other rock in place, bearing gold, silver or other precious metals, then this constitutes a prima facie case for the plaintiff, which can only be overcome by the defendant by proof of subsequent abandonment or forfeiture, or other divestiture, and the acquisition of a better right or title by the defendant." The above statement of the pleadings shows that the respondent claimed its right to a decree that the title and right to the possession of the premises be adjudged to be in it upon the allegations of ownership, possession and right of possession thereto, and that these allegations are denied by the answer. The allegation of forfeiture in the answer is consistent with these denials. The respondent does not claim the premises by virtue of a patent from the United States, but by virtue of a location made by its predecessors in interest. Now, although the courts of this territory, in determining the title to mining claims where there is a dispute in relation thereto in the land office, have adopted the forms of action by which title to land is tried, which may be either by the action of ejectment or to quiet title. Yet the real question to be determined is, who is entitled to the patent from the United States government, to the mining claim in controversy; or, in other words, who has become the purchaser of the mining claim and divested the title of the government thereto by complying with the requirements of the law of congress relative to acquiring title to mineral lands. The right to the possession of a mining claim comes only from a valid location, consequently, if there is no location there can be no possession under it. Location does not necessarily follow from possession but possession from location. A location is not made by taking possession alone, but by marking on the ground, recording and doing whatever else is required for that purpose by the acts of congress and the local laws and regulations: Belk v. Meagher, 104 U. S., 279. |