22 Colo. App. 528 | Colo. Ct. App. | 1912
This action was begun in.the Summit county district court in support of an adverse claim, by
The complaint alleges that on the 17th day of July, 1905, plaintiff was the owner of the Dollie Thompson, Kate Jackson, Tid-a-Wid, and Marguerite lodes; on June 30th, 1905, it was the owner of the Troublesome lode; all located in the Consolidated Ten'Mile Mining District in Summit county, Colorado (for brevity these lodes hereinafter will be designated the Dollie Thompson group); that on April 14th, 1906, defendant ousted plaintiff from that part of said lodes in conflict with defendant’s Survey Lot No. 17781, A and B, consisting of the Boyal King Solomon No. 1, the Boyal King Solomon No. 2, the Boyal Queen of Sheba, the Boyal Queen of Sheba No. 2, the Boyal Queen of Sheba No. 3, the Boyal Queen of Sheba No. 4, the Boyal Queen of Sheba No. 5, the Boyal Queen of Sheba No. 6, the Boyal Queen of Sheba No. 7, and the Boyal Queen of Sheba No. 8 lodes, as shown by exhibit B (hereinafter designated as the King Solomon group). The case was tried to a jury and verdict returned in favor of plaintiff for the ground in conflict. Trial was had December 17th, 1907.
This court would be warranted in refusing to consider any question concerning the rulings of the lower court in admitting or rejecting evidence at the trial, for the reason that none of the plats admitted in evidence have been incorporated in the bill of exceptions. The court has been hampered by not having such plats before it. There were four or five of them, all made from surveys of the ground bj^ competent engineers, and showed the disputed premises in their various phases. It is well known to
We think the substantial rights of litigants are of greater weight than the inadvertence or omissions
“The court instructs the jury that if you believe from the evidence that the plaintiff and its grantor made valid locations of the Kate Jackson, Dollie Thompson, Tid-a-Wid, Marguerite and Troublesome lode mining claims on the 15th dáy of July, 1905, or prior thereto, then your verdict will be for the plaintiff for all or such of said claims as you shall find have been properly located, regardless of the locations made by defendant prior to September 12th, 1905; in other words, under the evidence in this case, the defendant, by electing to sink new discovery shafts and filing new location certificates, thereby abandoned all locations made prior to the discovery and location of September 24th, 1905, and are entitled to recover only upon their discovery and locations of that date.”
This instruction commands the jury to disregard any and all locations relied upon by defendant if made prior to September 24th, 1905, and further tells them that defendant abandoned all locations made, or relied upon, by it prior to that date, because it had elected to sink new shafts and
We are not disposed to consider other questions raised, but as the case will likely be tried again it
" Q. From your experience as a farmer, and in irrigation in connection with it, is there water enough in that ditch now, or has there ever been for*537 tlie last two years, to irrigate the lands which have heretofore been irrigated by that ditch?”
• The court held the ruling to be error and assigned the same as one of the reasons for reversing the judgment. To the same effect: D. & R. G. R. R. Co. v. Scott, 34 Colo. 100; Holy Cross Mining Co. v. O’Sullivan, 27 Colo. 238. There are some exceptions to this rule, viz: T. & F. W. R. Co. v. Pulaski Ir. Co., 10 Colo. 367, and Sears v. Seattle Con. R. Co., 6 Wash. 227. It appears to us however that the question and answer here considered do not fall within the exception. While on this point we might say that as to the witness Wildhack, the only objection to the question propounded was as follows: “Objected to by defendant.” “Objection overruled.” '“Defendant excepts.” As to the witness Coffelt, objection was made to the question as “being incompetent and called for a-conclusion”. The first objection above mentioned, failing to specify the ground thereof, would not be entitled to consideration in this court. The second might be said to be sufficient for consideration on appeal, but we think it lacking as a clear and positive statement of the ground of objection. It has been held time and again by our appellate courts that an objection to the admission of evidence without assigning any reason, or sufficient reason, therefor, does not entitle the party objecting to have the objection considered. Hindrey v. McPhee, 11 Colo. C. A. 398; Armstrong v. Higgins, 9 Colo. 38.
Error is also predicated upon the court’s ruling in permitting the following question and answer to be admitted in evidence on behalf of plaintiff:
“Q. Is that such a showing of a vein and min*538 eral in place that a reasonably prudent miner in the district would expend his money and time with expectation of finding ore?
A. There was such a showing as a man would expend his time. ’ ’
The authorities next hereinafter cited sustain the court’s ruling in that behalf: Eureka Co. v. Richmond Co., 4 Sawy. 302; Shoshone M. Co. v. Rutter, 87 Fed. 801; Wilson v. Harnette, 32 Colo. 172.
The ruling of the court in admitting in evidence the deed to the Troublesome lode from Hopkins to Parker was not error. We think, however, evidence should have been introduced to explain the mistake, if any, as to the location certificate of the property conveyed not being recorded in the book and at the page to which reference is made in the deed.
For the reasons given; the judgment will be reversed and the cause remanded.
Reversed and Remanded.