A finding on the issue for damages is not material nor necessary to sustain a judgment for the recovery of the claims. The defendants can not complain because there is no finding on the question of damages. They are not hurt.
The plaintiff had a right to waive that branch of its case. Admitting that the claims were subject to relocation on the first of January, 1881, by reason of the non-performance of the amount of work on said claims in 1880, required by law to hold said claims, still plaintiff, by resuming work on said claims in January, 1881, and before defendants attempted relocation thereof, made said claims not subject to relocation by defendants. (Gonu v. Russell, 3 Montana, 358; 1 Miller, U.S. S. Court, 104; U.S. Rev. Stat., § 2324.)
JUDGES: McKinstry, J. McKee and Ross, JJ., concurred.
OPINION
McKINSTRY, Judge
In Bank. The complaint is in the ordinary form of ejectment, with an averment of damages caused by the excavation and removal of gold-bearing quartz by defendants during their adverse holding.
1. The Court below failed to find expressly upon the issue created by the denial of the averment as to damages. It is urged by appellants that this failure necessitates a reversal of the judgment. But no judgment was rendered for damages, and defendants (the appellants) can not complain of an omission which did them no injury. The judgment herein will constitute a bar to any further action to recover the same damages.
2. It is said there is no finding that plaintiff or his grantors located the mine as required by Section 2324 of the United States Revised Statutes. The Court found that plaintiff, on the ninth day of April, 1878, became the purchaser " by deed from the defendants and others" of the mining claims described in the complaint, entered into possession thereof, etc. In the absence of proof of subsequently acquired title from a paramount source, the defendants are estopped from denying that they and their co-grantors were the owners of and entitled to the possession of the mining claims when the deed to the plaintiff was executed. As we take notice of the character of the property and its original ownership in the United States, the defendants were estopped from denying that they and their co-grantors (or those from whom they derived) had located the mines in accordance with the laws of the United States--the only way in which the title could be acquired.
3. The Court found that in the year 1880 plaintiff expended in labor on the two claims one hundred dollars; that in January, 1881, plaintiff resumed work upon the claims, and expended in labor twenty-four dollars. Defendants entered and located in August, 1881. As the plaintiff had resumed work upon the claims " after failure and before location," his rights were not forfeited when defendants entered. (R. S. U.S. § 2324.)
It is urged that the resumption of work was not such as is required by the Act of Congress; that if so, one may fail to perform the work required by the Act during any year, and yet keep alive his right indefinitely by doing any work during the January following. In other words, that, by such construction, while the Act requires one hundred dollars' worth of work each year, a party may keep his claim good by doing one dollar's worth each year, provided he shall succeed in doing it before a relocation can be accomplished. It is not necessary to decide that an attempt to assert a continuous right may be based upon a pretense of work, so plainly a sham as that it will be disregarded. But here the work done was actual and valuable. The letter of the statute upholds the view, as to resumption of work, taken by the Court below, and forfeitures and denouncements are not to be favored by basing them upon language which does not plainly and unmistakably provide for them.
Judgment affirmed.