Supreme Court of Canada
Madden v. Connell, (1899) 30 S.C.R. 109
Date: 1899-10-24
Frank Madden (Defendant) Appellant;
and
Charles Connell (Plaintiff) Respondent.
1899: October 24.
Present: Sir Henry Strong C.J. and Taschereau, Gwynne, Sedgewick and King JJ.
ON APPEAL FROM THE SUPREME COURT OF BRITISH COLUMBIA.
Mining claim—Invalid location—Location in foreign territory.
If the initial post of a mining claim is in the United States territory the claim is utterly void.
APPEAL from a decision of the Supreme Court of British Columbia[1] affirming the judgment at the trial in favour of the plaintiff.
The parties are respectively locators of mineral claims in the West Kootenay District, B.C. which overlap, and the action was brought to determine the title to the ground covered by each claim.
The defendant was the first locator, but it was proved and conceded that the initial post of his claim was south of the boundary between British Columbia and United States and so within the territory of the latter. The courts below held that this made the location invalid.
[Page 110]
Robinson Q.C. for the appellant.
A. F. May for the respondent.
The judgment of the court was delivered by:
THE CHIEF JUSTICE (Oral).—We are all of opinion that it is impossible to get over the fact that the initial post on appellant's claim was south of the boundary. Two courts in British Columbia have so decided, which alone would be sufficient, but beyond that the fact is not only clear on the evidence, but is conceded by the appellant. The necessary consequence is that his claim is utterly void. As Mr. Justice Martin says, in giving judgment for the Supreme Court of British Columbia, the position is the same as if there had never been such a claim
The appeal must be dismissed with costs.
Appeal dssmissed with costs.
Solicitor for the appellant: John Slillwell Clute jr.
Solicitor for the respondant: P. McLaren Forin.