Argonaut Consolidated Mining & Milling Co. v. Turner, 23 Colo. 400

Argonaut Consolidated Mining & Milling Co. v. Turner

23 Colo. 400 | Colo. | 1897

Chief Justice Hayt

delivered the opinion of the court.

The third defense was interposed for the purpose of showing that the vein disclosed in the discovery shaft of the Cecil mining claim departed from the side lines of the claim as marked upon the surface, the contention in the court below being that for this reason the patent was absolutely void beyond the point of such departure. In support of this theory of the law the ease of Armstrong v. Lower, 6 Colo. 399, and similar cases are cited, and the following language from the opinion in Armstrong v. Lower is particularly relied upon: “ The vein is, of course, the principal thing, and the location should be made in conformity with the strike thereof. If the lode terminates at any point within the location, or departs at any point from the side lines, the location beyond such point is defeasible, if not void.” But that was an adversary proceeding before patent, certified from the United States land office to the court for adjudication, in order that the rights of the parties might be determined, and patents issued accordingly; but the rule is otherwise after the patent has once been issued. The patent carries with it the-*405right to the surface territory described therein, together with all lodes or veins having their tops or apices within such, surface boundaries, except, perhaps, cross lodes. Hence, while an adverse claimant may, to prevent entry, show that the vein relied upon by his adversary departs from the side lines of the claim, he cannot for this reason invalidate a patent after the same has once been issued. The land department of the government is the tribunal selected for the determination of such controversies, subject to transfer to the courts under certain conditions, and a patent issued by the land department must be taken in an action at law as conclusive evidence of title in the patentee. Smelting Co. v. Kemp, 104 U. S. 636.

It is contended that appellants’ third defense was filed in order that they might show that the vein upon which the trespass was committed was a vein the apex of which crossed one, if not both, of the side lines of the Cecil claim; but we find nothing in the pleading to warrant this contention of counsel. A reading of the defense will show that it was filed for another and different purpose, to wit, to question plaintiffs’ patent title. Plaintiffs do not base their right to recover upon any claim that they were working upon the identical vein disclosed in the Cecil discovery shaft, this shaft being near the easterly end of the Cecil claim, the claim of the plaintiffs being that the defendants were trespassing upon a vein, twelve hundred feet from that point, and near the westerly end of the Cecil claim.

The evidence shows beyond question that this vein enters the end line of the Cecil claim on the west, and extends for a considerable distance along the Cecil claim in a direction parallel, or nearly parallel, to the side lines. There is nothing to indicate that this vein in its strike departs from the ground covered by the Cecil patent, while all of the evidence shows that the apex of the vein is within the Cecil claim, and hence, in its downward course or dip, it is included in the Cecil patent by the very terms of the patent and the statute under which it was issued. Section 2322, Revised Statutes of the United States.

*406We concede, as we must, that where the course of a vein is across the claim as located upon the surface, instead of in the direction of its length, the side lines of the location become the end lines, and the end lines become the side lines, so far as lateral rights are concerned; but this does not invalidate the patent as to any part of the territory included therein. King v. Amy & Silversmith Mining Co., 152 U. S. 222; Last Chance Mining Co. v. Tyler Mining Co., 157 U. S. 683. But no such question is properly involved in this case. The maps and oral evidence disclose that the vein in controversy has been worked for over 400 feet in a lateral direction by shafts, tunnels and drifts, and that this work discloses a well-defined vein, with a general course parallel, or nearly parallel, to the Cecil claim, as staked upon the surface, with its apex within the surface boundaries of that claim, after the vein leaves the Wallace claim, and enters the Cecil,—the Wallace being a mining claim abutting the Cecil on the west end.

The trespass complained of in this case was at a point north of the north side line of the Cecil claim, where the vein was carried in its downward course by reason of its dip, and the only contention is as to the apex of this vein. The particular place where the work was being done by the defendants seems not to have been in dispute in the court below. The record discloses that counsel then appearing for these appellants were sufficiently well-informed as to the place of the trespass to conduct a vigorous cross-examination in reference thereto.

It is also claimed that the findings and judgment are not sufficiently specific; that the territory trespassed upon must be described with the certainty which should, and usually does, mark the description given by a civil engineer. In support of this contention, section 271 of the code is relied upon:

“ The judgment in an action brought under this chapter shall be in accordance with the verdict, or if tried by the court, the judgment shall particularly specify the findings *407of the court, the same as the jury are, by this chapter, required to specify in their findings in the verdict, and if judgment be rendered for the plaintiff, it shall specify the amount of damages to be recovered.”

We do not agree with counsel in their contention that it is necessary to describe the portion of the vein trespassed upon with mathematical certainty, although it may be advisable to do so where it is available, but such a description can only be obtained by an expert mining engineer, and the services of one sufficiently skilled may be beyond the resources of the ordinary miner. Hence, to require such a description would work a hardship in many eases, with no corresponding benefit. Moreover, if appellants wish the point of trespass defined with greater certainty, they should have called upon the trial court for greater minuteness of description. Not having done so, the right has been waived. The evidence shows where the trespass was committed, and it supports the finding that such trespass was upon a vein, the apex of which is within the Cecil claim as patented, and by reference to the maps introduced in evidence, the judgment can be made sufficiently certain for all practical purposes.

It is urged that the evidence does not disclose that the defendants, or either of them, were ever in possession of the property in dispute. This, however, is immaterial, as no disclaimer was filed, and under our code, when the defendant makes any other answer or defense, no proof of possession is necessary in the absence of a disclaimer. Code, sec. 276.

Finding no error in the record, the judgment of the district court will be affirmed.

Affirmed.