31 Colo. 518 | Colo. | 1903
delivered the opinion of the court.
The subject-matter of controversy in this case is the conflict between the Troublesome and Lucky Gus lode mining claims. Plaintiffs in error, as the owners of the latter claim, brought an action in ejectment against the defendants in error as owners of the former to determine their rights to the conflict. The trial was-to the court without the intervention of a jury. From a judgment in favor of the defendants, the plaintiffs bring the case here -for review on error.
The first point made is, that the court erred in admitting the location certificate of the Troublesome lode, for the reason that it did not contain such a description as would serve to identify , the claim. The
The defendants in error were in possession of their claim at the time of the location of the Lucky Gus. The suit against them is an ordinary one in ejectment, which involves only the right of possession of the respective parties, and as plaintiffs failed to establish a location which would entitle them to recover these premises, they cannot be heard to complain that the location certificate of the Troublesome was not sufficient.
It is claimed by plaintiffs that the Lucky Gus was located with reference to the boundaries of the Troublesome as staked, and did not embrace any part of the latter claim as so marked at the time of the location of the Lucky Gus. Subsequently, the defendants resurveyed their claim, and so changed the boundaries as to include the premises in dispute. The defendants were in the actual possession of - these premises at the time the Lucky Gus was located. This may not have been sufficient to entitle them to change the boundaries of their claim as marked upon the surface so as to injuriously affect intervening rights. This action, however, did not affect the rights of plaintiffs, because, according to the finding of the court, they had no location which gave them any right whatever to the disputed premises; consequently, they are not in a position to complain of the change made by defendants in the boundaries of the Troublesome lode. In short, as this was a simple
The finding of fact that plaintiffs had made no discovery of mineral on the Lucky Gus is challenged. We cannot disturb the finding of the trial court when it appears, as it does in this ease, that on this subject as a whole, the testimony fully sustains the finding that plaintiffs made no discovery of mineral upon which to base the location of their claim.
Plaintiffs supplemented their action by an injunction which restrained the defendants from selling or disposing of any ore from the premises in dispute pending a determination of the cause on its merits. The defendants in their answer claimed damages on account of the injunction. The court awarded them damages in the sum of $360.00, which is also assigned as error. Whether or not on the dissolution of the injunction the court had the right to determine-the question' of damages, is immaterial, for it is clear that under the testimony none could be awarded. The defendants were only enjoined from selling or disposing of ore, and their damages, if any, would be those sustained by reason of being thus enjoined. On the trial they claimed that they were prevented from working the property for ninety days on account of
The cause is remanded to the trial court with directions to nonsuit defendants on their claim for damages. As thus modified the judgment will stand affirmed. The costs in this court will be equally divided between the parties.
Modified and affirmed.