19 Colo. App. 405 | Colo. Ct. App. | 1904
Ejectment by appellant to recover the possession of a lode the top or apex of which, as it alleged, lay . within the exterior boundary lines of its "Washington lode mining claim, and from which it complained that it had been- ousted by the appellees through' underground workings from an adjoining claim. The defendants were the owners of the Cook lode mining claim through a patent older than that under which the Washington was held. Both claims were laid in a northeasterly and southwesterly direction; the Cook, however, trending somewhat more towards the north than the other, so that its northwesterly side line, whether located as claimed by the plaintiff or by the defendant, crossed the southeasterly side line of the Washington, approximately 127 feet south-' west of the northeast corner of the latter claim, and crossed its northeast end line approximately 32 feet northwest of the same corner. The ground within these lines of conflict was excluded from the Washington patent and belonged to the Cook. Two other claims held under older patents — the Fisk and the Bobtail — encroached for a short distance upon the northeast end of the Washington location, embracing portions of the territory contained within the original location of the Washington, and which were likewise excluded from the Washington patent, so that the northeast boundary of the territory conveyed by that patent, was a zig-zag line, which, by reason of the
The trend of the vein was approximately parallel with the northwest side line of the Cook, and in its downward course extended beyond that portion of the side line of the Cook which was laid within the Washington location, and into the ground conveyed by the Cook patent. The controversy was concerning the ownership of the portion of the vein which so extended into the Cook; the plaintiff1 asserting that the apex of the vein between the point of intersection of the Cook northwest, and the Washington northeast side line, and the point where it left the Washington ground on the northeast, was wholly within the territory belonging to the Washington; and the defendants maintaining that it was within the territory embraced in the Cook patent. The northwest side line of the Cook, in so far as it lay within the Washington location, was also the southeast side line of the territory conveyed by the Washington patent; but the stakes by which the boundaries of the claims were originally marked, had mostly disappeared, and it was necessary to fix disputed lines by surveys from objects in existence, outside of both claims, and with reference to which the claims were described by the patents. The line found by the surveyors for the plaintiff was some four or five feet farther to the southeast than that found by the surveyors for the defendant. -If the former was the true line, the apex was wholly within the Washington territory; but if the latter was the true line, the apex was at least partially within the Cook. The right to follow a vein on its dip into territory belonging to another, is depend
The jury found for the defendants; and if the only question submitted to them had related to the true location of the line between the claims, and the consequent situation of the apex with reference to the claims, we would be without authority to disturb their verdict.
The court, among other instructions, gave the following:
“No. 7. The jury is instructed that in applying the law to the surface area of any lode location, there are but two classes of lines, namely: end lines and side lines; the end lines perform the office of determining the length of vein which a claim may have upon its strike; the side lines perform the office of defining the surface area of said location; and all lines that are not end lines are side lines. The end lines of a claim must be parallel to each other in order to give to the lode location any extralateral right by virtue of its having within its surface area the top or apex of any lode. And if you believe in this case that any lode has been shown to enter the Washington claim at any point other than across one of its parallel end lines, and the said lode in its strike does not reach either one of said end lines, then and in that case the plaintiff is bound by the vertical planes of said location, and cannot pursue said vein upon its dip beyond the surface .boundaries thereof. ’ ’
That instruction first defined the conditions upon which the owner of an apex would be entitled to follow the vein on its dip beyond the side line of his claim, and then submitted the question whether such conditions existed in this case. The definitions were simply introductory to the submission, and explanatory of the question the jury were to deter
Now, it was undisputed that this end line was parallel with the other end line of the Washington; and it was undisputed that the lode did enter the Washington location across its end line. The evidence left no question of parallel or other end lines, or a crossing of the Washington end line by the lode, for'the jury to determine. The instruction was calculated to divert the attention of the jury from the real issue, to one which was not in the case. It would naturally lead them to suppose that there was something in the evidence which would warrant them in finding that the end lines were not parallel, o.r that the lode did not cross the Washington end line. With a map before them showing an irregular line formed by the end lines of the Bobtail and Fisk within the Washington location, bounding territory which belonged to them and not the Washington, they may have supposed that that line constituted the Washington northeastern end line; and, as it was nowhere parallel with the other end line of the Washington, they may have felt impelled to find for the defendant, notwithstanding they may have believed that
But it is said that the plaintiff cannot now avail itself of the error, because the instruction was met by no proper, exception. It was excepted to as follows: “The plaintiff excepts to the giving of instruction No. 7, as asked by the defendant and given by the court.” This exception follows the instruction. If we understand counsel correctly, the objection to the foregoing exception is that it does not specif}*- the grounds on which it was taken. The precise question here made was considered by the supreme court in Ritchey v. The People, 23 Colo. 314. There, as here, the instructions were in “writing, in separate paragraphs, and separately numbered, and were excepted to as follows: “To the giving of which instructions, and to each and every of them, the defendant, by his counsel, then and there duly and severally excepted.”. It was held that such exceptions to instructions given in • writing, and which were separately paragraphed and numbered, were sufficient. The court, however, drew a distinction between the case of written instructions separately paragraphed and numbered, and the case of one general charge delivered orally, citing, Keith v. Wells, 14 Colo. 321; Edwards v. Smith, 16 Colo. 529; Miller v. People, 22 Colo. 530; in which such exceptions to a charge which was oral and general were adjudged insufficient, and saying: “These cases proceed upon the basis that an oral charge is not as carefully prepared as a written charge, and that counsel being listeners are more apt to detect errors than the court. ’ ’
■ Upon a careful examination of the latter case we are unable to discover any inconsistency between it and the others. The following quotation from the opinion in that case shows clearly what the question before the court was, and what was its ruling on that question:
“At the conclusion of the instructions given by the court of its own motion, which embraced the one under consideration, an exception in this form was preserved: ‘ To the giving of which instructions, and to each and every thereof, the plaintiff by his counsel then and there duly excepted.’ This is equivalent to saving an exception to each instruction separately, but it cannot avail as against any instruction to which it is directed,, which contains a correct statement of the law, because it is insufficient to point out that which is incorrect from that which is correct. Without attempting to state fully the instruction which contains the direction of which appellant complains, it is sufficient to say that it embraces other distinct statements- of law, which are manifestly correct. ' Therefore, the exception noted was wholly insufficient to present the question for review, which it' is now sought to have us pass upon and determine. ’ ’
By an analysis of the foregoing excerpt, we find that the court held that the effect of a general exception to each and every of the instructions is the
Gunter, J., not sitting.