28 Colo. 453 | Colo. | 1901
delivered the opinion of the court.
This action was commenced by appellants, as plaintiffs, in support of their adverse, as the owners of the Polly placer, against Hie issuance of patent to the Ada placer, property of the appellees. At the conclusion of the testimony on the part of plaintiffs, the defendants moved for a nonsuit for the reason- that it had not been shown that the Polly was located on unoccupied public domain, and as a matter of fact, that the locators knew at the time of location that the ground embraced within the boundaries of the Polly placer was claimed by the defendants as the Ada placer, and had been worked by them, and that they were in the undisputed possession of such premises. Plaintiffs, at their request, were then permitted to introduce further testimony. At the conclusion of this evidence, the defendants, again renewed their motion for a nonsuit, which was sustained, the cause taken from the jury, and the action dismissed at the cost of plaintiffs. Prom this judgment they bring the case here for review on appeal. The two principal points urged by counsel for plaintiffs are (1) that the court erred in taking the case from the jury; and (3) there can be no nonsuit in an adverse cáse.
In support of the first proposition it is claimed that the un
The foregoing is all the testimony on the subject of the occupancy of the disputed premises at the date the Polly was located. This testimony not only fails to show that at the date of the location of the latter the territory embraced therein was unoccupied, but on the contrary establishes that it was wholly within the boundaries of the Ada, of which the defendants were in the actual possession at the time of the location of the Polly. Phis was sufficient to prima facie establish that the Ada was a valid, existing location — Lebanon M. Co. v. Republican M. Co., '6 Colo., 371. It was incumbent upon plaintiffs to show as one of the material facts necessary to establish the validity of their location, that it was on unoccupied and unappropriated mineral domain, subject to location. Cleary v. Skiffich, Ante 362, 65 Pac. Rep. 59. Armstrong v. Lower, 6 Colo., 393.
Title to a mining claim can not be initiated by an entry upon a prior valid, existing location. Moyle v. Bullene, 7 Colo., 308.
The fundamental principle governing the rights of parties to claims upon the public domain is, that the bona fide occupant, for a purpose recognized by the law, is entitled to hold possession as against one subsequently attempting to initiate title to the same premises, unless the latter establishes a state ’of facts clearly demonstrating that the actual occupant is in possession without right. In a question propounded to Mr. Meldrum it is assumed that an amended certificate was filed on the Ada on August 18, 1898, hut we cannot presume that this is the amended certificate to which the witnesses for plaintiffs refer. We under
It is urged by counsel .for plaintiffs that the ruling of the court, in not permitting certain questions to be propounded to the defendant Meldrum at their instance, was prejudicial, in that if such questions had been permitted to be answered, they might have disclosed that the Ada placer was not a valid location or claim. These propositions are designated in the assignment of errors as follows:
(a) In refusing to require Mr. Meldrum (defendant) to testify as to whether the plat 0 of the original and amended Ada placer location and of the Polly placer was correct, or nearly so.
(b) In refusing to require him to state what was on the original discovery stake of the Ada placer located by him in July, 1895.
(c) In refusing to require him to testify as to the differences in form, location, etc., of the original Ada location of 1895, and the amended location thereof of August 18, 1898.
(d) In refusing to require him to testify as to what was ever done in or about the Ada placer that was not done under and by virtue of, and for, the Meldrum tunnel site.
(e) In refusing to require him to testify as to whether any ore was ever extracted by him from the Ada placer.
The plat referred to does not appear in the bill of exceptions,
By reference to the bill of exceptions it appears that the defendant Meldrum was asked what work was performed in and about the Ada that was not used under and by virtue of the Meldrum tunnel site. If the improvements on the Ada were utilized for the benefit of the tunnel, such action would not invalidate the Ada location. Neither would the validity of such location in any manner depend upon the extraction of ore therefrom.
The second proposition for appellant is based upon the requirements of the amendment to section 2326, Bev. Stats. U. S., which provides that in adverse proceedings if title to the ground in controversy is not establsihed in either party, the jury shall so find, and judgment shall be entered accordingly. If a verdict had been returned, it should have conformed to the law. The jury, however, was not required to make any findings. The court held that plaintiffs had failed to prove the facts necessary to make a prima facie case. This entitled defendants to a non-suit as to plaintiff’s cause of action — Sec. 166, Code. Defendants did not ask for a verdict or obtain an affirmative judgment in their favor. In addition to a motion for nonsuit, they asked that the cause be dismissed. Plaintiffs, having failed to prove a cause
It is urged that the Ada location is void because it embraced more than twenty acres, and that placer locations are governed wholly by local rules and regulations, and also that the law does not permit an amended certificate tó be filed upon a placer. The Ada was located by the defendants. Its area, as originally claimed, or as embraced within the amended location certificate, did not exceed forty acres. The construction of the act of congress with respect to placers has universally been that the act makes provision for such locations, and prescribes the area which may be located. In other words — the area is limited to twenty acres to each locator, and that a number of individuals may locate a claim in common, not exceeding twenty acres to each person, and not exceeding one hundred and sixty acres in any one claim —Morrison’s Mining Eights (10th edition), 179. It may be true that the location of placers can be controlled by local rules, regulations and laws not in conflict with the act of congress on the subject, but that is immaterial in this instance. If plaintiffs wished to attack the validity of the Ada location upon the ground that such local rules and regulations had not been complied with by the locators, it was necessary for them to show what such rules
The judgment of the district court is affirmed.
Affirmed.