GR 22585; (December, 1924)

EN BANC

G.R. No. 22585        December 17, 1924

GEORGE M. ICARD, plaintiff-appellee,

vs.
J.W. NOBLE, defendant-appellant.

Ross, Lawrence and Selph for appellant.
Gibbs and McDonough for appellee.

STATEMENT

The controversy between the parties arises out of a conflict between two mining claims, plaintiff claiming as successor in interest under a location made by V.L. Tipton, June 22, 1921, known as the Prince claim upon ground alleged to have been located by the defendant, February 28, 1921, known as the Pig Fraction claim. The Prince claim overlaps the Pig Fraction claim on the nothwesterly side and the Pig Fraction claim overlaps the Prince on the southeasterly side, and practically all of the workings of the two claims are in the area in conflict.

August 15, 1922, the defendant filed his application for a patent, notice of which was published as legally required. October 4, 1922, plaintiff filed his adverse, claiming that the boundaries of defendant’s claim were insufficiently marked, and that his location line and discovery were within the boundaries of the Waterfall claim, and that the Pig Fraction claim contains an extension of the same vein or lode which runs through the Crest claim held by the defendant. It appears that the original Pig claim was located on February 1, 1913, and that a half interest therein was conveyed to the defendant. The assessment work was not done for the year 1920, and a relocation of the claim was made in the name of the defendant.

Upon the issues a large amount of evidence was taken and the lower court found in favor of the plaintiff, from which the defendant appeals, contending that the court erred in finding that the location line, corners and discovery by the Pig Fraction claim were insufficiently marked, and that the declaration is sufficient, in finding that the relocation of the Pig claim was null and void, and that the location of the Prince claim is valid, in finding that the plaintiff is entitled to possession of so much of the Pig or Pig Fraction claim as conflicts with the Prince claim, and that the defendant has no title, right or interest in any portion of the Pig claim, which is in conflict with the Prince claim, in rendering judgment for the plaintiff and in denying defendant’s motion for a new trial.

JOHNS, J.:

The question here involved is largely one of the credibility of witnesses. The lower court who saw and heard them testify, in well written opinion, found for the plaintiff upon all the issues. In doing so, it made a careful and detailed analysis of the evidence and all of the material facts. Among other things, his Honor, Judge Harvey, said:

The evidence shows without question that the Prince claim was located by V.L. Tipton on June 22, 1921; that Tipton and Reynolds carefully complied with the law in locating the Prince claim; that Tipton transferred said claim to Icard, who did the necessary work thereon to the amount of about P3,000. In fact, counsel for defendant says in his brief: “It is interesting to note the elaborate precautions taken in locating the Prince claim (Reynolds, transcript 105 and 106) ? precautions that Reynolds seldom before had found necessary (Reynolds, transcript 132). This, of course, is the obvious situation: a locator with a claim carelessly monumented, and a jumper with one which meticulously follows the letter of the law.”

The court has already expressed the opinion that neither Whitmarsh nor Noble was legally entitled to relocate the Pig claim on February 28, 1921, because there was not then any real abandonment or forfeiture of the claim as between the original locator (Whitmarsh) and the Government, and for that reason the relocation was void; but, assuming that Noble may have been legally entitled to relocate said claim, after failure to complete the assessment work thereon for 1920, the question to be decided is whether or not the relocation made by Gatchalian in the name of defendant was valid and effective as against plaintiff and his predecessor in interest, V.L. Tipton.

Section 23, as amended, of the Act of Congress approved July 1, 1902, known as the Philippine Bill, provides in detail the manner of establishing and marking the location line of a mineral claim in the Philippine Islands, and these provisions are couched in plain words which mining men are accustomed to use. Said section provides, in part, as follows:lawphi1.net

“SEC. 23. That a mineral claim shall be marked by two posts, placed as nearly as possible on the line of the ledge or vein, and the post shall be numbered one and two, and the distance between posts numbered one and two shall not exceed three hundred meters, the line between posts numbered one and two to be known as the location lines; and upon posts numbered one and two shall be written the name given to the mineral claim, the name of the locator, and the date of the location. Upon post numbered one there shall be written, in addition to the foregoing, “Initial post,” the approximate compass bearing of post numbered two, and a statement of the number of meters lying to the right and to the left of the line from post numbered one to post numbered two, thus “Initial post Direction of post numbered two … meters of this claim lie on the right and … meters on the left of the line from number one to number two post . . . .”

After making some reference to section 24 and other portions of 23 of the Act of Congress, the trial court says:

Furthermore, section 8 of Act No. 624 of the Philippine Commission, an Act prescribing mining regulations for the Philippines, provides that, in addition to the requirements of sections 23 and 24 of said Act of Congress approved July 1, 1902, in regard to placing posts numbered one and two on the line of location, and marking the line between them, each locator of a mineral claim shall establish each of the four corners of the claim by marking a standing tree or rock in place, or by setting in the ground, where practicable, a post or stone, and that each corner shall be distinctly marked to indicate that it is northeast, southeast, southwest or other corner, as the case may be, of the claim in question; and that the posts or stones used to mark such corners shall be of the dimensions required by these regulations for posts and stones marking corners or angles of a placer claim; and section 9 of said Act, in relation to marking placer claims, provides that when a post is used it must be at least five inches in diameter or four inches on each side by four feet six inches in length, and, where practicable, set one foot in the ground and surrounded by a mound of earth or stone four feet in diameter by two feet in height.

There is no proof that these provisions of law for setting posts were complied with in relocating the Pig claim. In fact, the evidence adduced shows that they were not complied with as to the posts set under the supervision of Mr. Whitmarsh, and, as to three of the corner posts, there is no satisfactory proof that they were ever set at all; Mr. Whitmarsh did not know whether they were set, or how they were set, if at all, and Gatchalian, although available, was not called as a witness in the trial of this case.

We agree with counsel for the appellant that the law does not require a technical compliance with all of such provisions to make a valid location of a mining claim. But it is very apparent that it does require a substantial compliance, and it was for such reason that the old law was amended in that particular. In any event, it would require that a stranger going upon the ground would find visible evidence of the discovery shaft and the center end posts and the four corners, showing the boundaries of the claim. In other words, these should be open, visible evidence of the fact that the ground had been located as mineral and of the boundaries of the location. This would be especially true as to all of the corner posts and the location line and the name of the mineral claim and the locator and the date of the location. Upon that vital question, as to the defendant’s location, there is a failure of proof. It is conceded that the plaintiff’s location complied with all legal formalities.

The judgment is affirmed with costs. So ordered.

Street, Malcolm, Avanceña, Villamor, Ostrand, and Romualdez, JJ., concur.
Johnson, J., took no part in the consideration of this case.

Batas Pinas