12 Colo. App. 439 | Colo. Ct. App. | 1899
The appellee made application in the proper land office for a United States patent to the Good Record lode mining claim, situate in Green mountain mining district, Gunnison county, Colorado. In due time the appellants, as claimants of the Only Chance mining claim, whose surface boundaries were in conflict with those of the Good Record, filed in the same land office their protest against the issuance of a patent to the appellee upon his application. Within the proper time, the appellants brought this suit against the appellee to determine the question of the right to possession of the territory
The appellants assign for error, in a general way, the exclusion by the court of proper, competent and relevant testimony offered hy them, and the admission by it of improper, irrelevant and immaterial testimony offered by the defendant. These assignments cannot be considered. They do not direct our attention to any specific testimony, excluded or admitted. They are indefinite, and leave us entirely in the dark as to the particular rulings of which they complain. The other assignments go to the withdrawal of certain evidence from the consideration of the jury, to the instructions given, and to the refusal of instructions offered by the plaintiffs. These objections will all be noticed in their order.
The Only Chance vein was discovered on the 25th day of July, 1894. There was no controversy over the fact of the time of the discovery, or over the validity of the location in so far as it embraced ground subject to location. The testimony for the defendant was that on the 14th day of June, 1894, Joseph F. Grant discovered the outcrop of a vein, and proceeded to, and did, make a location upon it in the name of the defendant, calling the location the “ Good Record.” Charles Gilbert, one of the plaintiffs, testified that on the 25th day of. July, 1894, he met Mr. Grant at the place where himself and his associates were working, and was told by Grant that they were on his ground, but that they should not be afraid, that he would dividé the ground with them, and they should take a claim one way and he the other; and that Grant also said he would pull back the Horse Shoe stake, or the Lucky Strike
It seems that there were two claims with which the Only Chance was supposed in some manner to interfere, and with which Grant was in some way connected, — one, the Horse Shoe, and oiie, the Lucky Strike. These two claims appear to have covered, in part at least, the same ground. There seem also to have been two Lucky Strikes, an old and a new one. The names on the old Lucky Strike stake were Cuenin and Grant, and on the new, Cuenin and Daly. How the old and the new were related to each other does not appear, nor are we able from the testimony to say with certainty which one of the claims the witnesses meant when speaking generally of the Lucky Strike. There were only two witnesses to the conversation from which the supposed agreement was deduced, Grant and Gilbert. Concerning the conversation generally there was no substantial disagreement between them, but, as Gilbert is one of the plaintiffs, and, presumably, did not state the case more strongly against himself than his understanding of the facts would warrant, we take his version of the occurrence. We have already given his testimony on the subject in part. At the same time and in the same connection, he said that the statement of Mr. Grant, that, if it became necessary to the protection of Mr. Gilbert and his associates, he would give them a deed, was made with reference to the Lucky Strike or Horse Shoe, and the deed was to be a deed of ground covered by those claims, or one or the
That Mr. Grant had no right or authority to make an agreement, concerning the ground within the Good Record claim, even if he had assumed to make one, appears with equal conelusiveness. Grant was indebted to the defendant, and when he discovered the Good Record, he put the defendant’s name on the discovery stake in consideration of the indebtedness. The defendant accepted the claim, and directed
The plaintiffs offered six instructions, which were refused. The first contained a definition of a vein or lode, and we do not see that it is open to any serious objection. However, the court gave an instruction which was substantially the same, and which was very clear and accurate in its terms, so that the refusal of that instruction did the plaintiffs no harm. By the second and third, the court ivas asked to say that to make the Good Record location valid, the defendant, by the sinking of a discovery shaft to the depth of at least ten feet below the surface, must have disclosed a mineral bearing vein or lode of rock in place, and that to entitle the defendant
But counsel challenge the evidence of discovery as insufficient to show a compliance with the statute, in that it appeared that the discovery shaft did not expose the walls of the vein. It is clear that the walls were not found, but we do not understand that the requirements of the statute involve the uncovering of the walls. According to the testimony for the defendant, the vein was in the neighborhood of thirty feet in width, and the dimensions of the shaft were five feet by seven or eight. The shaft was sunk down in the vein, and its sides did not reach the walls. The statute does not require drifts or crosscuts from the shaft to find the walls. When the shaft is sunk to the necessary depth on the vein, the statutory condition, in that respect, is fulfilled. When a given formation is determined to be a lode, the walls are a geological necessity. Their existence is as certain as that of the vein, and the shaft, by virtue of its disclosure of the vein, shows a well defined crevice within the meaning of the law.
The plaintiffs asked the court to say that to entitle a locator to the ground within the boundaries of his location, the
Counsel say that it was the duty of the court, of its own motion, to instruct the jury that if neither party to the action was found to have complied with the law in the matter of location, then neither was entitled to a verdict. The act of congress of March 3,1881, provides that if, in any suit brought upon an adverse claim, title to the ground in controversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict. 1 U. S. Rev. Stat. Supp. p. 609. The conditions which would authorize a finding that neither party had established title to the ground in controversy, or which would authorize a sub
We have examined every question presented directly or indirectly by the assignment of errors, and find no reason for a reversal of the judgment.
It will therefore be affirmed.
Affirmed.