Noonan v. Caledonia Gold Mining Company

This is an action to determine the rights of the parties to mining ground in Lawrence county, in the territory of Dakota. In April, 1878, one of the defendants below and of the appellants here, John Noonan, asserted ownership to a tract of mineral land in that county, bearing the name of the 'Bobtail Lode.' It was of great value, and he desired to obtain a patent of the United States for it. He therefore pursued the course prescribed in such cases by sections 2325 and 2326 of the Revised Statutes; and on the twentieth of that month filed the necessary application in the proper land-office of the district. At the same time Henry Lackey and eight other persons asserted ownership of mining ground known as the 'Caledonia Lode,' which conflicted with the Bobtail claim, as alleged, to the extent of three acres and fifty-seven hundredths of an acre. They, therefore, in May, 1878, filed in the land-office an adverse claim to the application of Noonan, and in June following brought the present action to determine their respective rights to the disputed ground.

Subsequently these adverse claimants sold their interest in the Caledonia lode to Thomas Bell, of San Francisco; and he conveyed the property to the Caledonia Gold Mining Company, a corporation organized under the laws of California. Upon application to the court, this company was substituted as plaintiff in the action, without prejudice to the rights of the defendants. An amended complaint was thereupon filed in its name, and substituted for the original one. It alleges the incorporation of the plaintiff under the laws of California; its compliance with the laws of Dakota relating to foreign corporations, to enable it to transact business, and to acquire, hold, and dispose of property in the territory; the transfer of the Caledonia lode to Thomas Bell; and his conveyance of the property to the company. It also sets forth the original location of the lode by four of the original plaintiffs, on the twenty-first of June, 1876, and their actual possession thereof afterwards, and that they and the others of the original plaintiffs, who had become interested with them, made, on the fifteenth of March, 1877, an additional and supplementary claim and location of the Caledonia lode, and on the same day caused a certificate or notice of the original claim and location, as well as of the additional and supplementary claim and location, to be recorded in the mining records of the district.

The amended complaint further alleges that from its original location in June, 1876, the plaintiff or its grantors have been in the actual and continuous possession of the Caledonia claim, and every part of it, and in accordance with the laws of the United States and of the territory of Dakota, and the local rules and regulations of miners in the district, and have expended, in labor and money, more than $5,000 in its development and improvement; that the defendant Noonan claims an interest in a portion of its mining ground, to the extent of three acres and forty-seven hundredths of an acre, by virtue of an alleged location of a quartz mining claim, call the 'Bobtail Lode,' made by his predecessors in interest in February, 1876, which is invalid and a could upon its title to the Caledonia lode. It prays that the defendant may answer and set out particularly his claim to that portion of the Caledonia lode which conflicts with the Bobtail lode, and the nature of it, and that it may be adjudged that he has no estate or interest therein, and that he be enjoined from asserting any right or title to it.

The defendant in his answer denies the allegations of the complaint, except as they are afterwards admitted, and specifically any knowledge of the incorporation of the plaintiff, or of its compliance with the laws of Dakota in regard to foreign corporations; admits his claim to be the owner of the Bobtail lode, his application for a patent, and the adverse action of the former plaintiffs; and sets up the discovery and location of that lode on the twenty-fourth of February, 1876, by parties through whom he derives his interest. A replication traverses some of the matters set up in the answer, and asserts an abandonment and forfeiture of the interests of the original locators of the Bobtail lode.

The action was tried by the court, without the intervention of a jury, by consent of parties. During the trial it appeared that one Thomas F. Mahan asserted an interest in the Bobtail lode, and that he was a proper, if not a necessary, party to a complete determination of the matters in controversy. Thereupon, by consent of parties, he was made a co-defendant in the action. The following is the entry made, at the time, in the journal of proceedings, following the title of the cause: 'Now, on this fifteenth day of July, A. D. 1880, the trial of the cause is resumed. By consent of all parties, Thomas F. Mahan is made a party defendant in this action. Counsel for defendant appear, and answer instanter for him, any amendments to pleadings required to be prepared and served during the pendency of this action, or at its conclusion.'

It appears that subsequently the two defendants joined in all proceedings taken. Before the entry of judgment, the plaintiff's attorneys, in order to make the record complete as to the new defendant, Mahan, instead of inserting his name at the proper place in the complaint, or rewriting it entirely, served upon the defendant's attorneys, and filed with the judgment roll, the following amendment:

IN THE DISTRICT COURT, FIRST JUDICIAL DISTRICT, LAWRENCE COUNTY, DAKOTA TERRITORY.

'Caledonia Gold Mining Company, (formerly Henry Lackey et al.,) Plaintiff, vs. John Noonan and Thomas F. Mahan, defendants.

'Now comes the above-named plaintiff, and in pursuance and by authority of the court hereinbefore made, on the fifteenth day of July, 1880, making the said Thomas F. Mahan a defendant in this action, amends its amended and substituted complaint, which was herein filed November 6, 1879, by inserting therein the name of the said Thomas F. Mahan as a defendant, and by inserting in and adding to said complaint, immediately after the subdivision thereof numbered 9, and before the prayer thereof, the following allegation, to-wit:

'(10) And plaintiff further avers that the defendant Thomas F. Mahan has, or claims to have, some right, title, or interest adverse to plaintiff in or to that portion of the said Caledonia lode claim above described by survey; that said claim of said defendant Mahan is without foundation or right as against plaintiff, but said Mahan persists in the same and makes said claim, as plaintiff is informed and believes, under the said allege and pretended location of the said alleged Bobtail lode claim above described as co-owner with, and claiming under the same right as, defendant Noonan, as above mentioned, and that said claim of said Mahan casts a cloud upon plaintiff's title to its said portion of said Caledonia lode above described, and plaintiff therefore makes said Mahan a defendant in this action, and asks the same judgment, decree, and relief against him as hereinafter prayed against said defendant Noonan.

'CLAGETT & DIXON, Attys. for Pltff.'

No objection was taken in the district court to this mode of amending the pleadings. It was made the subject of comment for the first time in the supreme court of the territory when the case was there on appeal, when it was contended that the amendment was irregular and insufficient, and left the original complaint without any allegations against the defendant Mahan, against whom, with the original defendant, the judgment was entered, and therefore that the judgment could not be sustained by the pleadings. That court held the objection to be untenable; and its ruling in this respect is assigned as error.

On the trial, the plaintiff, to establish its corporate existence, gave in evidence a copy of its articles of incorporation, certified by the clerk of the city and county of San Francisco, the place of its principal business, under his official seal, to be a correct copy of the original on file in his office; to which there was also appended a certificate of the secretary of state of California, under the seal of the state, that it was also a correct copy of those on file in his office. By the law of California the articles upon which a certificate of incorporation is issued are required to be filed with the clerk of the county in which the principal business of the corporation is to be conducted, and a certified copy with the secretary of state. Civil Code, § 296. The plaintiff at the same time produced a copy of the articles on file in the office of the secretary of the territory, certified by him to be a correct copy, with the seal of the territory annexed. To the introduction of these certified copies it was objected, generally, that they were 'incompetent, irrelevant, and immaterial,' without any specification of the particular ground on which they were thus objectionable.

In the supreme court of the territory, on appeal, it was objected that the documents were not properly authenticated as required by the act of congress, and the certificates were signed by deputy officers; but that court held that the specific objection being one which, if taken below, might have been obviated there, it could not be urged on appeal under the general objection taken, and therefore ruled the point untenable. This ruling is also assigned as error.

Numerous other objections were taken by the plaintiffs, during the progress of the trial, to the introduction of evidence of acts of the predecessors of the plaintiff in locating and developing the Caledonia lode previous to February 28, 1877, when the right of the Indians to the territory was extinguished by agreement with the United States. These and objections to the findings of the court on matters of fact constitute, in addition to those mentioned, the burden of the appellant's complaint. The court found for the plaintiff, and rendered judgment that it was the owner and entitled to the possession of the ground in controversy. On appeal to the supreme court of the territory, the judgment was affirmed, and the defendants have brought the case to this court.

''Danl. McLaughlin and Wm. R. Steele'', for appellants.

T. L. Skinner and S. S. Burdett, for appellee.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows: