MR. JUSTICE FIELD delivered the opinion of the court.
This action was commenced in one of the District Courts of Utah, and arose as follows:
The defendants, the owners of mining land in that Territory known as the Omaha Lode, filed in 1877 a survey and plat of it in the land office at Salt Lake City, and applied for a patent thereof under section 2325 of the Revised Statutes. The plaintiffs are the owners of adjacent mining ground known as the Highland Boy Lode, and within the prescribed time after the commencement of proceedings for a patent, they filed an adverse claim to a portion of the land covered by the defendants' survey, embracing nearly three acres. To determine the right thereto this action was instituted. The District Court gave judgment in favor of the plaintiffs for the disputed premises, with the exception of a fractional part of an acre, and the Supreme Court of the Territory affirmed the decision.
The District Court found certain facts and conclusions of law upon which it based its judgment. The Supreme Court had before it these findings, and also, by stipulation of the parties, a statement of the evidence prepared for a motion for a
The objections of the appellants, for which they ask a reversal of the judgment, may be reduced to two: first, that the findings do not show that the plaintiffs are citizens of the United States; and, second, that the findings of fact are confused, insufficient, and contradictory, and also mingled with conclusions of law, instead of being separately stated as required by the statute of Utah.
It is true that the mineral lands of the United States are open to exploration and purchase only by citizens of the United States, or by those who have declared their intention to become such; and had the objection been taken in the court below that such citizenship of the plaintiffs had not been shown, it might, if not obviated, have been fatal. There is, however, nothing in the record to show that it was raised below. Proof of citizenship, in proceedings of this kind, may consist, in the case of an individual, of his own affidavit thereof, and in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made upon his own knowledge, or upon information and belief. Rev. Stat. § 2321. The objection to the want of proof of that fact, if taken below, might have been met at once, if, indeed, the plaintiffs are citizens. The rule is general that an objection which might be thus met must be taken at the trial or it will be considered as waived, except as to matters going to the jurisdiction of the court. The parties to this controversy own adjoining claims, and it is probable that the citizenship of each was known to the other, and, therefore, no proof on the subject was required. Be that, however, as it may, the objection, in actions of this kind, cannot be taken in this court for the first time.
As to the findings, it is true they are not drawn with skill or precision; they are loose and somewhat confused. Facts
The facts, which appear to be sufficiently established, are substantially as follows: In March, 1870, the Omaha mining claim was discovered by one M.R. Williams, and some prospecting was then done by him for the vein or lode. Notice of the location was posted at the time by him and eight others associated with him, and on the 24th of June following it was recorded in the records of the mining district. By it they claimed two thousand feet along the lode, one thousand feet in an easterly direction, and one thousand feet in a westerly direction from the point at which they had a shaft. The claim was not marked on the ground until 1877, and until then it was not pretended that the vein or lode ran in any other course than east and west. But when the survey was made, preliminary to the application for a patent, it was claimed that the vein ran northeast and southwest from the shaft. The vein or lode did not appear on the surface of the ground, but when its actual course was ascertained to be northeast and southwest, the survey was made to conform to it. The defendants have succeeded to the rights of the original locators, and it is found that in regard to work they and their grantors have complied with the mining laws of the district and of the United States so as to entitle them to the ground as originally located and claimed.
In 1873 the plaintiffs and the parties through whom they derive their title discovered a vein or lode on unoccupied land
The question is, therefore, whether the location of a vein or lode as running in a certain direction, but not marked on the surface for years, nor developed, but simply indicated by a notice, will be allowed to prevail against a claim subsequently located by another party on ground different from that thus indicated, after the latter has been developed by years of labor and large expenditures, without objection by the first locators, because subsequent explorations by them disclose the fact that their vein runs in a different direction from what they supposed, and in its true course covers the subsequent claim. We do not think that the first claimants under these circumstances can appropriate the second claim. It is true the locators of the Omaha claim intended to take the vein or lode, and were ignorant of its true direction. But it was incumbent upon them to make explorations and ascertain its true course, and indicate it in some public and visible manner, so that others might not be excluded from explorations on adjacent ground or be deprived of the benefit of their labor. It is a rule among miners on the public lands, so often brought to our attention and so often declared that we may speak of it as part of our judicial knowledge, that discovery and appropriation are the source of title to mining