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duced the defendants as a purchaser. It is | from such act, the benefit accrues to the owner, also fair to presume that some negotiations and not to the relocator.

(Syllabus by the Court.)

Appeal from district court, Alturas county. This action is for the recovery of possession of a certain mining claim situate on Bear creek, Alturas county, Idaho, known as the "Ada Elmore Lode and Mining Claim." The complaint alleges that the plaintiffs have a "legal right to occupy and possess" the claim by virtue of compliance with all the requirements of law and rules of miners, and of act

had preceded the actual consummation of the sale, so that it could not have been very far from the time of the revocation by the defendants of the plaintiff's agency that the negotiations were taken up by the defendants in person. Considering these facts, and considering the fact that the defendants stated in their letter of revocation that they did not desire to sell the ranch, yet, in the very teeth of that statement, proceeding to sell, and to the very person to whom the plaintiff had in-ual prior occupancy of it as a mining claim; troduced them, it was a fair inference from also that the defendant, on the 4th day of the testimony that the object of the letter of January, 1886, while in the employ of the revocation was an attempt to deprive the plaintiffs as their agent, and as such agent in plaintiff of his commission. Lloyd v. Mat- the actual occupancy of said property, made thews, 51 N. Y. 124; Martin v. Silliman, 53 a relocation of the property adverse to the N. Y. 615; Sussdorff v. Schmidt, 55 N. Y. rights of the plaintiffs, intending the same 319. The evidence, although not very full, to be for his benefit; that the defendant ever was sufficient to justify the court in refusing since such act wrongfully withheld possession the motion for a nonsuit. These defendants from the plaintiffs, to their damage, etc.; should not be permitted by their own act to and prays judgment for the possession of the deprive the plaintiff of his lawful commis- premises, with damages for detention; and sions, and, the case having been submitted closes with a general prayer for relief. The to the jury upon the whole evidence, and the answer is a general denial, but avers, among jury having found a verdict for the plaintiff, other things, that "the said alleged original we do not deem it proper, under the circum-locations on said Ada Elmore lode" consisted stances, to interfere with that verdict. The of several mining claims located thereon, by judgment is therefore affirmed. the discoverers thereof, in 1863, extending 1,200 feet in length, along said lode, and no

WEIR, C. J., and BERRY, J., concurring. more, "with a width of 100 feet; that prior to

2 Idaho [Hasb.] 540)

LOCKHART et al. v. ROLLINS. (Supreme Court of Idaho. March 11, 1889.) MINES AND MINING-BILL OF EXCEPTIONS. 1. When exceptions to evidence are taken during the trial, but such exceptions are not settled until two months after the trial, and more than a month after filing decision, the appellant then having prepared a case, embodying a bill of exceptions, in which bill the exceptions taken during the trial are included, and the case containing such bill is allowed, and settled without objection in the presence of the attorneys for the respective parties, held, that such exceptions are not waived. Held, also, that by the failure to object at the settlement the party is deemed to have "agreed” to the extension of time, under section 4426 of the Statutes

the 19th day of June, 1878, said Pittsburgh and Idaho Gold Mining Company had or claimed an interest in, or right of possession of, 700 feet undivided of said 1,200 feet of said premises; that on that day the plaintiff Charles Lockhart, as assignee of one Newton, a judgment creditor of said company, and purchaser of said interest of said company, under a sheriff's sale thereof, succeeded, by sheriff's deed, to whatever interest," etc., said company had in said premises; that thereafter, and until the defendant's discharge, in August, 1885, the defendant acted as agent for said Lockhart, in the care and supervision of said mining claim and business, and improvements connected there with; that in 1883 the plaintiff Lockhart contracted with defendant to pay defendant for his services as such agent $500 a year, beginning January 1, 1883, in consideration of which the defendant "agreed to take and keep the care and supervision of said property, business, and improvements; prevent waste thereon; preserve the possession thereof; attend to the payment of taxes and hire of laborers to perform the requisite annual labor, to be 5. A party cannot make a valid relocation of paid out of funds to be furnished by the said lands legally possessed by another until the own- Lockhart." Alleges performance of such er's rights have been abandoned, forfeited, or oth-duties until his discharge, in August, 1885. erwise ended.

of Idaho.

2. Evidence of local customs of miners, as to the manner of transfers of interest in mining claims previous to July 26, 1866, is admissible.

3. Verbal transfers, if followed by change of possession, are valid as transferring claimant's interest.

4. Where mining works are idle, time and labor of a watchman and custodian expended on the

property in taking care of it is labor done on the claim.

6. The undertaking by one on the ground to procure a purchaser for a mining claim, the owners being non-residents of the territory, and having no other agent in the territory to look after the claim, constitutes a fiduciary relation of such person in relation to such property.

7. A person sustaining such fiduciary relation in respect to a mining claim cannot defeat the rights of his principal by relocating it for himself. 8. If he do so relocate it, and benefit accrues

Alleges payment of such salary for 1883 and 1884, and claims such salary as unpaid for 1885, up to July 31st of that year; and alleges that the assessment work for 1885 was not done, whereby, and "by force of the law," the claim "became forfeited and relegated to the body of public mineral lands;" and on the 4th day of January, 1886, he "located a

claim as the Ada Elmore,' including said | ceptions under Rev. St. § 4426, should have premises, of 1,200 feet long, and 100 feet been settled at the time the decision was wide, enlarging the location to 1,500 feet in made, and, not having been settled for nearly length by 600 feet in width; claiming such two months after the trial, must be deemed relocation for his benefit; and closing with as waived. The statute declares that such prayer for judgment against said plaintiffs "exceptions must be taken and settled at the for the right of possession of his said Ada time the decision is made, and no order of Elmore lode, and for costs, and that the judg- the court shall be made for the settlement of ment "be certified to the register of the land- such exceptions at any other time, except by office," etc. The case was tried by the court the agreement of both parties." The action without a jury, at the October term, 1887. of the court in actually settling these excep Findings were filed December 10, 1887, and tions on the 28th of January is equivalent judgment for plaintiffs on such findings of to an extension of the time to that day. fact and law was entered on that day. The Both parties were present at such act, and findings and judgment affirm the right of the took part in the proceedings, apparently plaintiffs to all the lands described in the de- without objection. Such tacit consent is fendant's location of January 4, 1886. This equivalent to an "agreement of both parpart of the judgment is based mainly on the ties." The settlement of the exceptions was following findings of fact and conclusions of therefore regular. The next question raised law: "The court finds as a fact that on the is as to the admissibility of the evidence of 4th day of January, 1886, a fiduciary relation the local customs of miners in transferring existed between the plaintiffs and defendant, interests or rights of possession in mining by reason of the employment of the defend- claims prior to July 26, 1866. The original ant to procure for the plaintiffs a purchaser locators of the Ada Elmore lode mining claim for the property included in the defendant's were six in number, and the witness Sawyer location of January 4, 1886, for a percentage was one of them. In showing a transfer of of the proceeds of such sale as his commis- the several interests of some of the several sion," and as conclusion of law that the de- locators to the plaintiffs, the witness Sawyer fendant, sustaining such fiduciary relation in was asked: "Question. What were the cusrespect to this property, acquired no rights by toms as to the transfer of mining property in his relocation,—the lands so affected by this that district from 1863 to 1866, till the pasfinding extending beyond the original claim | sage of the law of congress that year? (Obin length 250 feet, and on each side 250 feet, jection was made by appellant to the questhe point of location at which defendant tion and to proof of custom as irrelevant; placed his notice being at the point of plain- that the evidence of such transfers should be tiffs' shaft in the Ada Elmore lode claim. in writing. The objection was overruled, As to whether this finding of fact is sustained and the witness answered.) Answer. I know by the evidence, it was further found that, the custom. It was by bill of sale or word during the year 1885, the annual labor re- of mouth. Either was good from 1863 to quired by law (Rev. St. U. S. § 2324) was 1866 to a friend. To those unknown it was performed by plaintiffs on said Ada Elmore otherwise. We had no lawyers to write lode claim by caring for and maintaining the deeds. When a sale was made to a friend, buildings and improvements thereon; and he would just step into possession." hence that the claim was not on the 4th day of January, 1886, subject to relocation. We shall consider these findings hereafter.

It was not error to allow this evidence. The act of congress of July 26, 1866, clearly indicates that the rights of mining claimants J. B. Rosborough, for appellant. Lyttle- may be subject "to the local customs or ton Price and R. Z. Johnson, for respond-rules of miners;" they not being in conflict ents.

with the laws of the United States. It even allows those laws, customs, and rules of

BERRY, J., (after stating the facts as miners in establishing the right of a claimabove:) A question of practice and of evi-ant to enter and receive a patent to a mining dence is presented at the beginning of the claim. Tunnel Co. v. Stranahan, 20 Cal. 198; consideration of this case. It appears that the findings of the court below were filed December 10, 1887, and judgment for the respondent was entered on that day; that a case was soon thereafter prepared, including assignments of error, presented for settlement, and settled and allowed, on the 28th day of January, 1888. The certificate of the judge states that such case, with assignments of error included, were “examined, settled, and allowed in the presence of the attorneys of the respective parties." Both parties participated in the settlement, without objection. The respondent now claims that many of the alleged errors, if errors at all, were committed in the course of the trial, and the ex

Mining Co. v. Taylor, 100 U. S. 37. The new location of the plaintiffs' claim is admitted in the answer; that prior to June 19, 1878, the Pittsburgh & Idaho Mining Company, one of the plaintiffs, had or claimed an interest of 700 feet of the 1,200 feet of the Ada Elmore claim, and that the plaintiff Lockhart became the owner of it through a sheriff's deed, in an action against this company. Conveyances to said company were shown, covering the balance of said claim; also that plaintiffs had been in peaceful and exclusive possession of the claim, with claim of right, working or improving it, for nearly 20 years. There was other evidence tending to show that the plaintiffs were rightfully in posses

sion of this property. On this point their | cost of $2,300. All that was done by the declaim of rightful possession was fully estab- fendant for the plaintiffs in 1885 was clearly lished. The finding of the court below on in pursuance of their former well-established this point must be sustained. purpose.

The question as to what shall be understood as "labor upon mines," buildings, etc., has been much discussed, in cases of mining claims; more frequently, perhaps, in cases of liens for labor done. The cases have mostly arisen under claims for miners' or mechanics' liens. While the words of the various statutes are not always identical, there is a general uniformity in the words used in these laws with the statute requiring this annual labor upon mining claims. Practically, where the claim is for work done, the statutes re

of Mining Co. v. Bouscher, (Colo.) 12 Pac. Rep. 433, decides what shall constitute labor done "in or upon" mining claims, under the lien law of that state. The law (section 1655, Gen. Laws Colo.) reads: "All miners, laborers, and others, who work or labor in or upon any mine," etc., "shall have a lien," etc. The court holds that services of a superintendent of mines, in planning or superintending the erection of a mill, and machinery, are work or labor, in or upon the property, within the meaning of the statute. So in Utah (Comp. Laws, § 1221) one who shall do work "upon any mine shall be entitled," etc. In a case founded upon this statute (Mining Co. v. Cullins, 104 U. S. 176) the court say: "It is somewhat difficult to draw the line between the kind of work and labor which is entitled to a lien and that which is merely professional or supervisory employment, not fairly to be included in those terms. Some courts have held, under laws similar to those of Utah, that an architect who furnishes plans, and superintends the erection of a building, acquires a lien thereon for work and labor;" and cite Stryker v. Cassidy, 76 N. Y. 50; Insurance Co. v. Rowand, 26 N. J. Eq. 389; and other cases. In that case the claimant of the lien was an overseer and foreman of a body of miners, and his claim was held good. If it be said that these cases go rather to what shall be deemed work, we answer that is precisely the case at bar. There can be no question that whatever was done was done on the plaintiffs' claim. So in Oregon, under section 1, c. 32, Laws Or., under a like statute, the court in Falls Co. v. Remick, 1 Or. 170, give a like construction.

But it is contended that the labor required by law was not performed in 1885, and that for that reason the claim in question was, at the beginning of 1886, open to relocation adversely to plaintiffs. By section 2324 of the United States Revised Statutes the holder of a mining claim, to maintain his right of possession, must see that "one hundred dollars' worth of labor shall be performed on such claim, or in improvements made thereon, during each year." The object of this requirement seems to be that the holder of a mining claim shall give substan-quire it to be done on the property. The case tial guaranty of his good faith. It cannot be from any desire on the part of the government to obtain the money of the locator. His right of possession does not depend upon any money consideration, but it is a right founded in public policy. It would be clearly against public policy for one to take and hold a mining claim for years, against all others who would be locators, merely that he might speculate upon it, with perhaps no design to develop it. Some guaranty of his good faith is required, as a condition of allowing him such exclusive possession. The labor is not required to be applied in any particular manner, but so that it is unquestionably devoted to such claim. McGarrity v. Byington, 12 Cal. 426. It must not be so as to raise a question as to its purpose. The exception made in the statute itself invites this construction. It is conceded that this labor may be in digging, erection of works for mining, in placing machinery, or in buildings on the claim, necessary for its working. In the case at bar the labor of the defendant, under hire of the plaintiffs, at the salary of $500 a year, continuing at that rate to the 31st day of July, 1885, was in its character precisely what it had been for the two preceding years. His time was spent upon the property, in caring for it, and in protecting it from deterioration, loss, or danger. It involved daily visitations in and over it, and into the works; in fact, as the defendant himself testified, "in doing all that could be done with idle property. The exigencies of the mining business frequently require property of this kind to remain idle for a time, but that is not necessarily evidence of intent to abandon it. In this case, at least, the acts of the plaintiff show that such was not their intention. The improvements to be taken care of and protected were valuable, and consisted of buildings, engine, boiler, and machinery, hoisting works, etc.; and, from the defendant's evidence, presumably costing thousands of dollars. They had been constructed and used in the development of this mine. The plaintiffs, with them, had worked the mine for years, and when they needed repairs had repaired them. The hoisting works had to be rebuilt, while the defendant was in charge of the property, at a

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All the authorities cited by the appellant on this point are consistent with the same view. The strongest case cited for the appellant is that of Du Prat v. James, 65 Cal. 555, 4 Pac. Rep. 562. A party had leased a mill, located about a quarter of a mile from his claim, but whether for the sole purpose of developing his claim does not appear. He made efforts, at first unsuccessful, to get water from a ditch to operate the mill, and traveled to distant places, to see agents of a ditch company, to get water for, as he claimed, the same purpose, and incurred expenses in

chaser, but none had been found up to the beginning of 1886. From this the court held the relations of the defendant with the plaintiffs, with reference to this property, were so far of a fiduciary nature that he would not be permitted to relocate the sub

what he did by the way of enlarging the boundaries of the claim was done for the benefit of his principals, subject to their right of election to accept the same. We think the court below was correct in so holding. Numerous authorities are cited by the respond

time and money in doing so. Having succeeded, however, in getting water, "he did not use it, or attempt to crush rock or ore." None of these acts were done on the claim, nor were they necessarily connected with this mine. Indeed, his failure to use the water after he had obtained it raises a strong pre-ject of his trust, for his own benefit; that sumption that he did not intend to do so; at least, not to develop this mine. The court, properly as we think, held this expenditure was not on the mine, in the sense intended. The case cited, (4 Pac. Rep. 562,) is the same as that last commented upon. The case of McGarrity v. Byington, 12 Cal. 426, by im-ent in support of this decision, but the prinplication, at least, favors the view we take upon this subject. It holds that "work done outside of a mining claim with intent to work the claim, to be considered by intendment as work done on the claim, must have direct relation and be in reasonable proximity to it;" clearly implying that, when its purpose is self-evident, it is within the statites by intendment, if not literally. The personal services of this agent were work and labor. They were performed on the property. They were in aid of the development of this claim. They tended as directly as acts can tend to show the good faith of the plaintiffs, and their purpose not to abandon the mine; at least up to the time they had expended in its preservation, (in 1885, ) labor to the value of $333.

ciple is too well settled to admit of controversy, and we omit citations. The order denying a new trial is sustained, and the judgment is affirmed.

WEIR, C. J., and LOGAN, J., concur.

(2 Idaho [Hasb.] 576) COTTREL v. UNION PAC. RY. Co. (Supreme Court of Idaho. March 18, 1889.) CONSTITUTIONAL LAW-DUE PROCESS OF Law. poration to make compensation for injuries done An act which fixes absolute liability on a corto property in the prosecution of its lawful business, without any wrong, fault, or neglect on its part, when under the general law of the land no one else is so liable under such circumstances, does not provide the "due process of law "provided for in the constitution of the United States, and is therefore void.

(Syllabus by the Court.)

Appeal from district court, Oneida county, P. L. Williams, for appellant. Smith & Smith, for respondent.

But it is contended that the plaintiffs have not yet paid for this labor. That does not affect the fact that the labor was done by their procurement. The defendant did it for hire, and may recover for the services under his contract. We conclude that on the 4th day of January, 1886, the Ada Elmore lode LOGAN, J. This action was brought by mining claim was not open to relocation ad- the respondent under the statute of this terversely to the plaintiffs. See Morgan v. Til-ritory to recover damages for certain horses lotson, 15 Pac. Rep. 88.

alleged to have been killed by the locomotive But the court below goes further, and holds and cars of the appellant. The appellant dethat the relocation made by the defendant in- murred to the complaint, which demurrer ures to the benefit of the plaintiffs. Under was overruled, whereupon the appellant inthe pleadings such relief can be had. The terposed an answer, admitting the incorpoconclusion is based upon a finding of fact ration of the defendant, but placing in issue that, at the time of relocation, the defendant the remaining facts set out in the complaint. sustained a fiduciary relation to the plaintiffs Upon the trial of the issues the plaintiff respecting this property. From the evidence proved the killing of the horses alleged to it appears that one W. N. Frew, of Pitts- have been killed, their value, and rested. At burgh, Pa., where the plaintiffs resided, and the conclusion of the trial the defendant restill reside, for about eight years next priorquested the court to charge the jury as folto the beginning of this action acted as agent lows: "The court charges you that though of the plaintiffs, and as such had been known you may believe that the defendant killed to and dealt with by the defendant. It was each of the horses sued for by running its through Frew that defendant was in plain-engine and cars over against the same, yet, tiffs' employ about the premises from 1883 if you further believe by a preponderance of to July 31, 1885. There was much and con- evidence that the defendant, by its agents, stant correspondence between the defendant in killing any of plaintiff's horses, acted as and Frew; and on the termination of the de- an ordinarily prudent and reliable person fendant's services in caring for the property, would under similar circumstances, then the July 31, 1885, through Frew defendant was plaintiff is not entitled to recover for the tendered the further services of finding a pur- horses so killed, and your verdict as to such chaser for the property at such sum as the horses should be for the defendant; that plaintiffs would be willing to take, he to re- mere proof of killing plaintiff's horses is not ceive a percentage of the proceeds for his sufficient evidence to show that defendant commission on completion of the sale. The did not act as an ordinarily prudent and readefendant undertook to procure such pur-sonable person would act under similar cir

cumstances." The defendant's counsel ex-are borne by the property of the deceased,
cepted to the refusal of the court to charge or, in default thereof, by the county in
as requested, and this exception raises the
only important question of this case, and
that is the constitutionality of the statute
under which the suit is brought and sought
to be maintained; for the refusal to so charge
cannot be upheld except upon the statute.
The statute (section 2680 of the Revised Stat-
utes of Idaho) provides that "every railroad
company operating any line of railroad with-
in this territory, that maims or kills any
horse, mare, gelding, filly, jack, jenny, or
mule, or any cow, heifer, bull, ox, steer, or
calf, or any other domestic animal, by run-
ning any engine or cars over or against any
such animal, is liable to the owner of such
animal for the damages sustained by such
owner by reason thereof, unless the injury
occurred through the neglect or fault of the
owner." The plaintiff's counsel concedes
that if this section is unconstitutional, then
he is not entitled to recover in this action.
It is equally clear that unless this action is
based entirely upon the statute, the refusal
of the court to charge as requested was error;
so that the only question to be determined
in this case is one of the constitutionality of
the section referred to. This statute makes
the defendant liable in cases where the mere
killing is proven without proof of any negli-
gence whatever on the part of the railroad
company. In fact, the killing being proved
or admitted, negligence is presumed. It is
conceded that there is no general statute in
this territory which requires railroad com-
panies to fence their tracks. The supreme
court of the United States, in a recent case,
has decided that the law compelling railroads
to fence their land is not unconstitutional,
holding that it is a police regulation.1 Bear-
ing this doctrine in mind, we find that the
authorities which have maintained that acts
of this kind are constitutional are based up-
on the grond that a failure to fence on the
part of the railroad company is a violation of
the statute, and that the damage in such
cases is caused by the wrongful act of the
defendant. Such statutes merely fix a pen-
alty for the violation of a duty imposed by a
valid law of the land. As we have stated,
there is no general law in this territory
which compels railroads to fence their lands,
and in order to hold the provisions of this
section constitutional we must uphold the
right of the legislature to inflict a penalty
upon the defendant who is doing a lawful
act in a lawful manner. We do not feel that
we should uphold such a statute as this.
The weight of authority is decidedly against
our doing so.
Railroad Co. v. Parks, 32
Ark. 131; Zeigler v. Railroad Co., 58 Ala.
595; Railroad Co. v. Lackey, 78 Ill. 55. The
court said in the last case cited: "On what
principle is it that railroad corporations,
without any fault on their part, shall be com-
pelled to pay charges which, in other cases,

which the accident occurred?" An exami-
nation of the section will show that no de-
fault or negligence of any kind need be es-.
tablished against the railroad company. A
penalty-for it is in the nature of a penalty-
should not be inflicted upon the defendant
by the legislature for doing a lawful act in a
lawful manner. In fact it has no power to
inflict such penalty. The running of trains
by this corporation was lawful, and of great
public benefit, and has served more to de-
velop the resources of this western country
than any other agency. It is not claimed
that the liability attaches for the violation of
any law, the omission of any duty, or the
want of proper care and skill in running
their trains. It is contended that the stat-
ute should be construed so that it may estab-
lish a rule of prima facie evidence of negli-
gence. Such construction of the statute does
not seem to us a fair one. The language is
plain, and it was clearly the intention of the
legislature to make the killing of the animal,
by the railroad company the only test of its
liability. To do this, in our opinion, would
be an act of great injustice, and would be a
clear violation of the constitution. It is
with great reluctance that we pass upon this
statute, and we would not do so if it were
possible to dispose of this case justly upon
any other basis; but the refusal to charge as
requested, and the overruling of defendant's
demurrer, can be upheld upon no other
ground than upon the existence of this stat-
ute, for, in the absence of the statute, both
rulings are manifestly error. A statute of
this character-one precisely similar to the
one in question-has lately been passed upon
by the supreme court of Montana in the case
of Bielenberg v. Railway Co., 20 Pac. Rep.
314. That court has declared such an act
unconstitutional. We are inclined to follow
the decision of that court. The judgment
and order appealed from are therefore re-
versed, and a new trial granted. Judgment
reversed.

1 Railway Co. v. Beckwith, 9 Sup. Ct. Rep. 207. v. 21 P.NO.6-27

WEIR, C. J., and BERRY, J., concur.

(2 Idaho [Hasb.] 573) TERRITORY v. ANDERSON. (Supreme Court of Idaho. March 18, 1889.) PERJURY-INDICTMENT-ELECTION OATH.

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1. An indictment for perjury in taking oath as to facts within defendant's knowledge, which pertained to himself alone and which he was bound to know, charging that defendant "willfully, unlawfully, and feloniously contriving, on his oath aforesaid falsely, wickedly, and feloniously did say, swear, etc., is not defective for omitting the word "knowingly," in view of Pen. from the former mode prescribed for pleadings Code Idaho, § 8236, providing that a departure or proceedings, or an error or mistake therein, shall not render it actually invalid unless preju

dicial.

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2. Rev. St. Idaho, §§ 504, 505, confer on the registrar the power to administer the "election oath."

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