32 Colo. 472 | Colo. | 1904
delivered the opinion of the court.
The main question presented for determination in both of these causes is the same, and the mining-premises in controversy embraces practically the
Appellee Brown applied for patent on a mining claim known as the Scorpion. Appellant Gnrney adversed this application as the owner and claimant of the Hobson’s Choice, and the appellant Small as the owner and claimant of the P. G. Thereafter each brought suit in support of his adverse claim. The causes were tried on an agreed statement of facts, whereby the main question presented is, When, with respect to the three locations, did the premises in controversy become subject to location1? The following diagram will aid in understanding this question:
The facts presenting it are as follows:
From this diagram it will be observed that the Kohnyo was segregated- into two disconnected tracts by the Mt. Rosa, a patented placer claim. The north
Other facts were stipulated, which have not been summarized because they are of that character, and cover such questions, that the rights of the respective claimants to the premises in controversy are wholly dependent upon the legal conclusions deducible from those stated. Counsel for appellee, however, contend that the judgment must he affirmed because the agreed facts fail to identify the premises in dispute as part of the Kohnyo claim; do not establish the validity of that location, nor affirmatively show that the premises, when located as the Scorpion, were not part of the unappropriated public domain. The agreed statement will not hear this construction. It is evident from the record and the briefs of counsel that the only question submitted for trial, and the only one which the.parties intended to litigate and have determined by the trial court, was the time when the premises in controversy reverted to the public domain, and the judgment respecting their rights which would follow the conclusion of law on this question. Or, in other words, the only question really submitted for trial was the point of time at which the premises in controversy were open to location. Upon the determination of this question the decision as to which of the respective locations was valid, depended. This is apparent from the agreed statement of facts, for thereby it was conceded that each of the parties litigant had complied with all the requirements of the
Counsel for appellee concede that the tract in controversy is substantially identical with the south tract of the Kohnyo lode, but say that such fact is not disclosed by the record. If not, it is rather strange that in the preparation of the agreed statement the various steps affecting the Kohnyo location were set out with such particularity. A discussion of the main question in the cases will demonstrate that the stipulated facts do establish the validity of the Kohnyo location, and that at the date of the location of the Scorpion the premises therein included were not a part of the unappropriated public domain. Appellee, however, is estopped from raising any of these questions now. His counsel state in their brief:
“Upon the trial in the court below the stipulation of facts was not read by either party. * * * It was upon taking up the record before this court for the preparation of appellee’s brief that the question of the relevancy of the exhibits attached to the stipulation of facts first presented itself, * * *. From an examination of the record it would appear to be a certainty that the case was tried in the lower court upon assumptions which are wholly unsupported by the written evidence contained in the agreed statement of facts. * # * The truth of the matter is, that after the preparation, execution and filing of the agreed facts, the stipulation contain*479 ing such facts was never again read or digested by any of the parties in interest. The trial court and counsel for all tbe parties litigant assumed that the stipulation covered facts which, upon investigation, we fail to find.”
Facts assumed to be true on the trial of a cause cannot afterwards be contested on appeal. — 2 Cyc. 675. In short, it appears that counsel for both sides, on the trial of the cause, construed the stipulated facts as covering these questions, and on appeal they will be held to that construction. Again, none of these questions were raised in the court below. Had they been, and the attention of the court and counsel been called to the fact that the agreed statement omitted material facts, opportunity would have been afforded to correct the alleged omissions either by further stipulation or testimony. One of the cardinal principles of appellate procedure is, that questions sought to be reviewed shall first be brought before the trial court for decision. Otherwise a court of review would often be compelled to decide purely original questions which the trial court was given no opportunity to decide or determine. — Elliott’s Appellate Procedure, § 489.
We shall next notice the contention of counsel for appellee, that the premises in controversy were not segregated by the Kohnyo location. In support of this claim, two propositions are relied upon:' (1) The decision of the land department of May 7, 1898, to the effect that the Kohnyo vein was not known to exist within the boundaries of the Mt. Eosa placer at the time application for the patent therefor was made,- and (2) that the rights of the Kohnyo claimant terminated at the point where the north end of the Kohnyo claim intersected the exterior boundaries of the Mt. Eosa placer. The first proposition is clearly untenable. The proceedings before the land depart
In this instance the land department had' determined that the applicant for patent on the Kohnyo was entitled to a conveyance of one or the other of the two tracts. Whether or not this conclusion was right or wrong cannot be questioned collaterally. If wrong, it was an error which the land department committed in the exercise of its jurisdiction over those matters specially intrusted to its supervision and control, and hence, could only be corrected in a direct proceeding instituted for that purpose.
This brings us to a discussion and determination of what we have designated as the main question, namely: At what date, with respect to the three
No case is cited by counsel where the propositions presented by the facts narrated and bearing upon this question have been determined, and we must, therefore, analyze the facts and their effect for the purpose of ascertaining when, according to those facts, the subject-matter of the actions reverted to the public domain. This is the important point, because a location of a mining claim can only be made upon unappropriated mineral land. — Armstrong v. Lower, 6 Colo. 393. The decision of May 28, 1895, did not cancel the entry made by the applicant for 'patent on the Kohnyo. Thereby the Kohnyo claimant was given the right to elect which of the two tracts would be selected for patent. In case of failure to make such election, the government reserved the right to cancel the entry on the south tract.. The judgment of the land department was to be enforced in one of two ways, whereby'one or the other of the tracts would be restored to the public domain, namely: By the election of the Kohnyo claimant, or the affirmative action of the department. The proceedings instituted by the Kohnyo claimant for the purpose of establishing the existence of a known vein through the Mt. Rosa placer at the' time the patent for the latter was applied for cut no figure, for, independent of those proceedings, the fact remains that the judgment of the land department of May 28, 1895, was not enforced or given effect until the Kohnyo claimant, by its written declaration filed in the local land office, indicated its intention to proceed to patent on the north tract. This act on the part of the Kohnyo claimant was an express surrender of all rights to the south tract. It operated as an abandonment of any right thereto, and took effect the very moment the declaration of election was filed in the local land
Counsel for appellee have argued that the suspension of a receiver’s receipt operates to render it incompetent as evidence of the validity of the claim upon which it is issued. This proposition may be correct, but the facts do not justify its application. The certificate on the Kohnyo was not suspended or canceled, but the order of the department was to the effect -that the entry itself should be suspended until certain directions were complied with. The mere suspension of a mineral entry for the purpose of requiring compliance with departmental regulations does not destroy the force of the certificate evidencing such entry, or enable third parties to attack its validity: — § 772, 2 Lindley on Mines; Last Chance M. Co. v. Tyler M. Co., 61 Fed. 557. Counsel for appellee, as we understand their brief, have also advanced the proposition that the judgment of the land department of May 28,1895, not having been appealed from, operated to cancel the entry at the expiration of the date when the time allowed for appeal expired. "We think this contention has already been answered, but the authorities they cite to support their claim are not in point. In U. S. v. Steenerson, 50 Fed. 504, as well as in Murray v. Polglase, 43 Pac. (Mon.) 505, it was held that, according to the judgment of the land department, the respective entries had been canceled ; and so in the cases of Reed, 6 L. D. 563; Gauger, 10 L. D. 221, and Perrott v. Connick, 13 L. D. 598. As we have already shown, a judgment of absolute cancellation is entirely different from one where the entry is merely suspended for the purpose of enabling the applicant to comply with some specific requirement.
But one further matter requires notice, namely:
As these cases were tried in the court below on an agreed statement of facts, which definitely determines the rights of the respective parties, judgments in each case will be directed here under the authority of section 398 of the Civil Code. The judgment in Small v. Brown is vacated, and judgment will be entered in this court that neither party has established any right to the premises in controversy, and that each pay his own costs in this court as well as in the court below. In Gurney v. Brown it appears from the facts stipulated (considering those not specially noticed in the opinion), that the location of the Hob-son’s Choice is in all respects regular; that appellant Gurney is the owner of, and has established his right to the possession and occupancy of the premises embraced in such location, and is entitled to recover the same from the appellee by virtue of a full compliance with the statutes of the United States and the state of Colorado in the discovery and location of the Hob-son’s Choice lode mining claim. Wherefore, judgment is now here directed to be entered in this court that he do recover the premises included in the Hob-, son’s Choice location of and from the appellee Brown, and that he also recover his costs in this court, as well as in the court below.
Judgments vacated and judgments entered in this court.