32 Colo. 278 | Colo. | 1904
delivered the opinion of the court.
In this action to recover the possession of real property, the controversy is over the right of possession of a plot of mineral land in the Cripple Creek mining district. It lies within the outer boundaries of what appellant (plaintiff below) calls the Great Divide and Last Chance lode mining claims, to which he asserts ownership, and it is substantially the same territory embraced within the Ohio and Last Chance lodes claimed by appellees (defendants below), all of which are unpatented. Upon issues joined by the
1. In his attempt to show his right of possession to this property, plaintiff conceived that a prima facie case was made out merely by proving that he and his grantors had done work and made improvements thereon, and that at the time of the intrusion by defendants he was in the occupancy thereof, and that until defendants showed paramount title in themselves, or an antecedent possession, he might rely upon his right of possession thus established, and cites Armstrong et al. v. Lower et al., 6 Colo. 581.
Two kinds of possession of mining property are recognized by the state and'federal decisions, as the ■opinion in that case states; one within which plaintiff first attempted to bring himself, the other resulting from a valid statutory location. “When plaintiff closed his evidence which tended to show right of possession based upon occupancy, the court intimated that he had not established any right of possession at all, and could not without proof of valid statutory locations. Acting upon this suggestion, plaintiff then produced proof tending to show, under the federal and state mining laws, valid locations of the two claims to which he asserted ownership; without proof of whichf according to the court’s ruling, no right of possession could be established under the pleadings.
If there were error in this ruling, as to which we need not decide, the same was harmless and waived by plaintiff’s producing proof of valid statutory locations from which the right of possession springs, provided proof of the latter kind was sufficient to show compliance with the statute. In the natural order, then, we proceed first to inquire whether, in the light
2. Plaintiff’s locations were made, the Last Chance in the early part of 1893, and the Great Divide in May of that year; the defendants’ on January 1,1899. Defendants contend that plaintiff failed to make sufficient proof as to the validity of his locations, but the only defects to which our attention is called are that the discovery shaft of one of the claims was not sunk to the required depth, and that there was not disclosed therein a well-defined crevice of mineral-bearing rock in place. Were it necessary, it could easily be demonstrated from the evidence that all necessary acts of location were performed by the locators of these two claims at the time they fix as the date of original location. The necessity for doing so, however, is obviated because the proof is clear and unquestioned even by the testimony of defendants’ own witnesses, that before the alleged rights of the defendants accrued, a valid discovery in both plaintiff’s locations was made, and all other acts of location performed. So that, in our further discussion, we may regard it as satisfactorily proven that plaintiff’s locations were valid, and his right of possession established at the time defendants entered to make their locations, unless such right was lost because of some delinquency on the part of plaintiff which forfeited the same.
This brings us to a consideration of the defenses interposed by the defendants, which, if made out, operate at once as a forfeiture of all of plaintiff’s rights, and a restoration to the public domain of the land which plaintiff may have theretofore segregated, and upon which they might, and as a matter of fact they say they did, make valid locations, or relocations, under the laws of the United States and of
3. As to whether the annual assessment work to the value of one hundred dollars on each claim was done for the year 1897, the testimony is conflicting. Beyond all doubt, plaintiff in good faith attempted to comply with the federal statute so requiring. He employed men to do the work, paid them therefor the sum of one hundred dollars for the labor they did on each location, and recorded the affidavit of labor, as section 3161 Mills’ Ann. Stats, provides that he may, the recording of which is prima facie evidence of the performance of the annual labor
In this connection it is appropriate to say, and the observation applies to other branches of the case, that we do not believe that this question of fact was resolved by the lower court in favor of the defendants. There were no specific findings of fact upon any of the issues, the finding being in general terms in favor of defendants. To our minds it is apparent from the rulings of the trial court upon the evidence and other questions that were raised at the trial, that the case was not decided in favor of defendants upon the issues of fact, but upon the court’s construction of the following act of congress, passed July 2, 1898, of which only sections 1 and 2 are pertinent:
“An act to relieve owners of mining claims who enlist in the military or naval service of the United States for duty in the war with Spain, from performing assessment work during such term of service:
“That the provisions of section twenty-three hundred and twenty-four, of the Revised Statutes of the United States, which require that on each claim located after the tenth day of May, eighteen hundred and seventy-two, and until patent has been issued therefor, not less than one hundred dollars ’ worth of labor shall be performed or improvements made dur*284 ing each year, shall not apply to claims or parts of claims owned by persons who may enlist in the volunteer army or navy of the United States for service in a war between this country and Spain, so that no mining claim or any part thereof owned by such person, which has been regularly located and recorded, shall be subject to forfeiture for non-performance of the annual assessments until six months after such owner is mustered out of the service, or, if he should not survive the war, then six months after his death in the service.
“Sec. 2. That those desiring to take advantage of this act shall file, or cause to be filed, a notice in the clerk’s office where the location certificate of said mine is recorded before the expiration of the assessment year, giving notice of his enlistment and of his desire to hold said claim under this act.” — 30 U. S. Statutes at Large, 651.
When hostilities between the United States and Spain broke out, plaintiff was a retired surgeon of the navy, and soon after the declaration of war volunteered his services and enlisted as a surgeon in-the navy of the United States for service in the war between this country and Spain. Choosing to take advantage of the provisions of the foregoing act, in December, 1898, he caused to be prepared and filed, and recorded in the clerk’s office where the location certificates of his mines were recorded, a notice of his enlistment and desire to hold the claims, as therein provided. It is plaintiff’s contention that the filing of this notice was the equivalent in all respects of the performance by him of,the annual work upon each of the claims for the year 1898, and lifted the forfeiture, if any occurred by reason of his failure to do such work for the year 1897. The defendants hold to the contrary. The question then is, what is the meaning of this act?
It is a fair construction of the act of congress of July 2, 1898, and we so hold, that an enlisted person, being an owner of an unpatented mining claim which has been regularly located and recorded, who files, or causes to be filed, in the proper clerk’s office, the notice provided for by section 2, is relieved of the necessity of doing the annual assessment work required by section 2324 of the Revised Statutes, and the filing of such notice is equivalent in all respects to, and is attended with the same consequences that result from, its actual performance. In other words, to apply the principle concretely, since plaintiff, during the year 1898, filed the notice prescribed in section 2, this was in lieu of the assessment work for that year, and in law constituted'a resumption and performance, in full, of the assessment work for that year, just as effectually as if plaintiff had actually performed a hundred dollars’ worth of work upon each claim. It follows, therefore, that if plaintiff did fail to do his annual assessment work for the year 1897, the claims
It clearly appears from the record that defendants did not attempt to locate this ground on the first day of January, 1898, at which time they say plaintiff’s claims were liable to forfeiture, nor did they enter thereupon, or attempt to secure any right thereto, prior to the passage of the act of congress of July 2, 1898, and not until the first day of January, 1899. On that day, however, the ground was not, for the reason just stated, open to relocation, and unless by some subsequent default of plaintiff it became so, he still owns it.
4. That such default occurred is another contention of defendants. Their counsel argue that since plaintiff admits that he returned from the war about the first day of March, 1899, and, as he also concedes, did not, within the period of six months thereafter, as limited by section 1 of the act of 1898, resume labor and perform the same upon either of these claims, his right of possession is lost. While it is true that plaintiff returned to Colorado in the month of March or April, 1899, there is no evidence to which our attention is called that he has ever been mustered out of the service. A sufficient reply to this contention might be that, so far as the record shows, plaintiff is still a surgeon in the United States navy, though the war has long' since ended; and as the burden of proof is upon defendants to establish a forfeiture upon the ground alleged, they have failed, if plaintiff is still in the service. But assuming, as we well may, that plaintiff was mustered out in March or
They were in actual possession of these claims in August, 1899, when plaintiff began to take steps to do the annual assessment for that year, which was within the six months from the time it was alleged he was mustered out of service. In good faith he
5. Another position taken by defendants is that, assuming the validity of plaintiff’s locations when made, and their superiority to the locations of defendants, still he cannot recover in this action because, at most, he is the owner of an undivided interest in each of the claims of which, in his complaint, he asserts sole ownership. That plaintiff, when the action was begun, was the owner of an undivided, less than ah
But if these forfeiture proceedings were insufficient to divest the interests of plaintiff’s co-owners and invest him therewith, as the unquestioned owner of an undivided interest in each of these claims, he was entitled, as a tenant in common, to recover as against a stranger the entire interest; and if the defendants deraign title from plaintiff’s original co-owners, he still would be entitled to recover as against them the interest-which it is shown he had in these claims at the time this action was begun. But‘as the defendants are not tenants in common with plaintiff, but claim under a title hostile and antagonistic to him and that of his original co-owners, they are strangers to his, and their, title. The rule in this
6. From the foregoing it follows that the mining locations attempted to be relocated by the defendants on January 1, 1899, were not then subject, to location because they were not a part of the unappropriated public domain. The ground was then included within previously located and existing valid' lode locations, and, so far as the record discloses, up to this point nothing has since occurred to work a forfeiture of plaintiff’s rights therein. But if this ground in controversy was, at the time defendants attempted to locate it, unappropriated public domain, they did not make what the law considers a valid location of either claim. While there is testimony by one of the locators that the discovery shaft of each claim was sunk to the required depth, the best evidence, that of defendants’- own engineer, whose testimony was given at their instance, clearly showed that neither of defendants’ location shafts was sunk to the depth required by law", and, so far as the evidence shows, this defect was not remedied by them before the plaintiff resumed work, and did the assessment work for the year 1900 (which it is admitted he did), and the statutory time for the doing of the various acts of location by defendants had long expired before such re-entry by plaintiff.
7. After the expiration of the six months limited by the act of 1898, for the resumption of work by an enlisted person, and some time in November, 1900, defendants filed amended location certificates of their claims, the effect of which was, they say, to confirm their title, even though their original loca
We are not called upon to construe section 3 of the act of 1898, which points out the procedure by which a relocation may he made of the interests of the co-owners of an enlisted person when such co-owners have failed to do the necessary assessment work. The defendants have made no attempt to comply therewith. They rely upon the proposition that the entire ground in controversy was open to relocation at the time they made their entry, and so base their rights upon the proposition that the entire interest in plaintiff’s locations was forfeited and the ground covered thereby relocated by them, as provided by our state statute.
Many other questions are argued by counsel on both sides, but they are either unimportant or disposed of by the foregoing discussion. As already intimated, we are not embarrassed by any specific findings of the trial court upon the material and vital questions of fact. It is so apparent that the decision, was based upon an erroneous construction of the act of congress of 1898, which governs the rights of the parties to this controversy, that we may rightfully assume' that, if the court had not considered its wrongful construction of that act controlling, the
Reversed.