31 Colo. 141 | Colo. | 1903
delivered the opinion of the court.
The complaint alleged, in substance, that the defendants wrongfully and unlawfully entered upon the Refugee lode mining claim, and on the vein or veins thereof crossing the end lines and apexing within its boundaries, and wrongfully ousted and ejected the plaintiff therefrom. It is contended by counsel for appellant that the complaint does not state a cause of' action based upon extra lateral rights.- Two reasons are assigned in support of this claim: (1) That it only describes a vein within the boundaries of the Refugee extended downward vertically; and (2) it does not allege that this vein contains minerals. If rights to a mineral vein embraced in a mining location were limited as at common law, the first point made might be good. A vein properly located is part and parcel of the location within which it is embraced throughout its entire depth, within the limits defined by law, even though on its downward course it enters an adjacent location. — Sec. 2322, Rev. Stats. U. S.
The complaint alleges a trespass upon a vein apexing within the surface boundaries of the Refugee claim and intersected by its end lines. According to these averments, under the law fixing the rights to this vein, such trespass may 'have been upon the vein in ground underneath the surface boundaries of the Fairmount claim extended downward vertically, or without such ground, within the boundaries of the Refugee. This, however, is not essentially material. The charge was a trespass upon a vein which was part and parcel of the Refugee. If for any reason it was desirable to have the complaint more definite, as to the point where the trespass was committed, a motion to that effect should have been
According to the description of the Refugee in the complaint, it is asserted that the claim is of greater width than the law allows, and for this reason the validity of the patent is assailed. It is not necessary to determine what might be the effect upon the patent if this claim was correct, because it appears that it is not. The end lines are not at right angles with the side lines, and, therefore, do not represent the distance between them. The width of a mining claim, when that is the only question involved, is the distance between the side lines. Thus measured, the Refugee is not of greater width than the law permits.
The vein in controversy, except a small portion, apexes entirely within the boundaries of the Refugee claim. The Fairmount is the older location, having been located in the year 1869, on the dip of the vein, and subsequently patented. Before the location of the Refugee a considerable portion of the vein was worked out by the claimants of the Fairmount. Counsel for appellants, contend that the stoping out. of the mineral has broken the continuity of the vein, and that, therefore, the owner of the Refugee can
Under the act of congress of 1866, the right to follow a vein upon its strike is limited to the lines of the survey purporting to embrace it. This question has been definitely settled by the supreme court of the United States,—Mining Co. v. Tarbet, 98 U. S. 463,—and it is unnecessary to more than briefly discuss it. The act contemplated a location along the vein, and hence the point at which the apex of such vein, in its course, departs from either side line of the claim, marks the point where the right to follow it on the strike under such location ceases, and extra lateral rights are limited accordingly.—Wolfley v. Lebanon M. Co., 4 Colo. 112; McCormick v. Varnes, 2 Utah 355; 1 Lindley on Mines, §§ 53-60; Morrison’s Mining Rights (10th ed.), 133.
It is next contended by counsel for appellants that appellee is estopped by his conduct from maintaining this action, because he disclaimed any interest in the vein now in controversy, in effect abandoned it, and misled the appellants to their injury and prejudice; and also that the court erred in refusing testimony in support of this defense. The record
A shaft had been sunk on. the vein from its apex on the Refugee down to a stope extended from workings on the Fairmount. On the trial of the cause counsel for appellants asked a witness whether or not this shaft was dangerous. The court sustained the objection, and this ruling is assigned as error. If the condition of this shaft could have been the subject of expert opinion evidence, it was wholly immaterial in this case. Whether the shaft was or was not dangerous to any one who might attempt to pass through it, could have no bearing whatever upon the issues between the parties. The exclusion of immaterial testimony is not error.
It was sought to establish, on the part of the appellee, that the vein upon which this shaft was sunk was the same which the appellants were work
The vein in its strike apexes within the Refugee ground, with the exception of a few feet across the corner of the Fairmount. The end lines of the Refugee are each some distance from this point. It is claimed that the vein crossing Fairmount ground breaks its continuity, and as we understand the argument of counsel, they contend that appellee can cláim no extra lateral rights except upon the theory that he is permitted to construct imaginary end lines at the point where the vein in its strike crosses the boundaries of the Fairmount. This view is not tenable. The Refugee would take no portion of the vein apexing within the lines of the Fairmount, but the extra lateral rights to the vein outside would be determined by the end lines actually established, in connection with the boundaries of the Fairmount. In this connection it is urged that because the northerly end line of the Refugee is partially projected within the boundary lines of a prior claim, and the vein does not cross this line in “free ground,” as it is termed — that is to say, crosses such line within the
The instructions given are challenged, and exceptions were also taken to the refusal of the court to 'give those requested by appellants. The court instructed the jury to the effect that, although the’ Fairmount was patented before the Refugee, that the Fairmount would' not include any part of the Refugee vein, which had its apex outside of the surface boundary lines of the Fairmount, and that-so much of the vein as apexed outside of the Fair-mount and within the boundaries of the Refugee belonged to the latter. This instruction is challenged upon the ground that it nullified the defense of the statute of limitations interposed by appellants to the effect that they and their grantors had been in the possession of the Fairmount for more than seven years immediately prior to the time this action was commenced under claim and color of title in good
It is also contended that these instructions were erroneous because they ignored the proposition of the union of veins. Instructions must he considered as a whole, and we find that the court, in another instruction, gave the law fully and correctly on this subject.
Numerous instructions requested were refused, which we shall not attempt to notice in detail. They were either substantially covered by those which the court gave of its own motion, were immaterial to the issues, or the questions thereby raised have been disposed of by the previous questions determined; and as to the remainder, even if they correctly state the law, we are unable to determine their materiality, because no testimony is pointed out bearing on the issues which it was sought thereby to submit to the jury. It is not erroneous to refuse instructions which have already been given, or which do not relate to any issue involved. Neither can we determine whether an instruction refused was prejudicial error, unless our attention is directed to testimony from which it appears that some issue was involved which justified such instruction.
The jury returned a verdict which was to the effect that they found the issues joined in favor of the plaintiff, and that the vein in controversy apexed
It is true the plaintiff claimed damages, but because none were returned by the jury is not a matter of which the defendants can complain. They were not prejudiced by the action of. the- court in failing to assess damages. After the verdict was received and filed and the jury discharged, the court
The final question relates to the alleged misconduct of the jury. It presents no proposition of sufficient merit or importance to constitute reversible error.
The judgment of the district court is affirmed.
Affirmed.