6 Colo. 371 | Colo. | 1882
The appellee in this case having made application in the United States land office in Central City to enter the Peru Lode mining claim, the appellant filed an adverse claim to a portion of the premises embraced in the application for patent, claiming the same as parcel of its Lebanon Tunnel Lode No. 3, and brought this suit in support of the adverse claim.
The plaintiff below brings the case here for review, assigning numerous errors, the more serious of which relate
Motions for new trial and in arrest of judgment were made by the plaintiff and overruled by the court, and judgment was entered in favor of the plaintiff for “the vein proper of the Tunnel Lode No. 3, discovered in the Lebanon tunnel, two hundred and twenty-seven feet from its mouth, and that they have a writ of possession therefor.” All the rulings complained of were objected to on the trial and exceptions duly reserved.
The exclusion of evidence offered in support of plaintiff’s title is justified by counsel for the defendant, on account of the insufficiency of the plaintiff’s pleadings. On the other hand, plaintiff’s counsel assign for error that the court, on motion of the counsel of the defendant, struck the plaintiff’s amended complaint from the files; that it afterwards refused to permit an amended complaint to be filed and inconsistently thereafter permitted the defendant to file an amended answer. Inasmuch as the rulings upon the pleadings involve matters of judicial discretion, we will dismiss the first four assignments of error, which relate thereto, with the following suggestions and observations. A liberal allowance of amendments to the pleadings, in cases of this nature, due regard being had for the rights of each party litigant, would often conduce to the furtherance of justice. It is probable that most of the rejected testimony would have been adjudged admissible by the court below, under the amended complaint, if the filing of the same had been permitted. It is of the highest importance in trials involving the determination of valuable rights, that the
Before passing to the other branches of the case, viz., a consideration of the errors assigned in respect to the excluding of evidence offered in support of plaintiff’s title, and the action of the court in withdrawing the case from the consideration of the jury, we will take a cursory yiew of the nature and incidents of the action as they appear in the record before us, and of the issues as presented by the pleadings. The whole evidence, that which was offered and rejected, as well as that which was received, tended to show that the plaintiff, the Lebanon Mining Company of New York, purchased a group of mines on Republican Mountain in the Griffith mining district, Clear Creek county, several years ago, the dates ranging from 1870 to 1872. These mining claims bore the names at the time of purchase of Sallie Ward, L. W. Powell, E. i of George D. Prentice, and the easterly portion of the Peru lodes. In 1871 the plaintiff commenced the work of driving a mining tunnel into this mountain in the immediate vicinity of this group of mines. In the month of November or December, 1871, the lode in controversy was struck in the tunnel at a point two hundred and twenty-seven feet from its mouth or face, and named Lebanon Tunnel Lode No. 3. After the passage by congress of the mining act of May 10, 1872, which, among other things, made provision for the protection of tunnel rights, the tunnel site was laid out, staked, and a location certificate thereof recorded in the recorder’s office of Clear Creek county. This vein so cut in the tunnel was drifted upon a distance of about seventy feet on either
Among other proofs offered by the plaintiff on the trial, and rejected by the court, were offers to prove that the lines of the Tunnel Lode No. 3, as surveyed upon the surface, included the several claims long previously purchased by the plaintiff, as before stated, under the names of Sallie Ward, L. W. Powell, George D. Prentice and Peru, and that they had ever since been occupied by it.
Defendant claims to be the owner of the Peru lode, and plaintiff proposed to prove that the three lodes, known by the names of Sallie Ward, the Peru, and the Tunnel Lode No. 3, were in fact one and the same lode, which the plaintiff claims to own under the name of Tunnel Lode No. 3.
As counsel for defendant justify the action of the court in rejecting the proposed evidence on the ground that it was irrelevant and incompetent under the pleadings, we will next direct our attention to the pleadings for the purpose of ascertaining whether the testimony offered was competent under the issues presented thereby. The complaint alleged that the plaintiff, on the 1st day of June,
The title of the plaintiff is set out in the .following language: “It claims the right to occupy and possess said premises by virtue of full compliance with the local laws and rules of miners in said mining district, the laws of the United States and of the state of Colorado, by actual prior possession and by purchase and by location and preemption as a lode mining claim, located on the public domain of the United States.”
The answer denies upon information and belief all the allegations of the complaint. For a second defense the defendant alleged title in itself to the premises in controversy, as part of the Peru lode, “by virtue of full compliance with the local rules and customs of miners, the laws of the United States and of said state, by discovery and location and by actual prior possession, and by purchase and location.”
The replication filed to said answer denies that defendant is or ever was owner of the premises in controversy; alleges that plaintiff is owner of the lode and premises called by the defendant the Peru lode; avers purchase by the plaintiff on January 10, 1871, of the Sallie Ward lode from one J. Warren Brown, who was the owner thereof and in possession of the same, whereby plaintiff then became and now is owner thereof; averring that the lode SO' purchased is identical with the property claimed by both plaintiff and defendant, but alleging that the title claimed by the defendant to said property is subsequent to the-title so conveyed by Brown to the plaintiff. Defendant’s
This was a suit in chancery, involving title to a lot of land in Cincinnati, decided in the supreme court of the United States in 1833. The opinion holds that the principles, rules and usages of the court of chancery in England, under which the courts of the United States were then acting, would not permit a special replication to be filed in a chancery cause without leave of the court, whereby a new case from that stated in the bill should be made by the replication.
In respect to the above authority, we have only to say: First. That the pleadings in the case at bar must be construed by the provisions of our Code of Civil Procedure, and not by the rules and usages of the ancient court of chancery. Secondly. That the averments in the replication concerning the Sallie Ward lode may be regarded, to some extent, as new matter from that stated in the complaint; but that they constitute a clear departure from the allegations of the complaint and therefore make a new and different case, can not be conceded. Plaintiff in its complaint designates the premises in controversy as parcel of Lebanon Tunnel Lode No. 3, and claims title thereto derived in the following various ways: By purchase, by location and pre- emption, by actual prior possession, and by full compliance with national and state laws and with the local laws and rules of miners of Griffith mining district. The defendant in its answer takes issue upon each allegation of the complaint, and asserts title to said premises in the defendant at and before suit brought, as parcel of the Peru Lode mining claim. It claims to have derived its title in the same several ways specified in the complaint. Up to this point neither party has stated when their several alleged titles were acquired; from whom their titles by purchase were
It may also be observed that no exception appears to have been taken to this replication before the trial; consequently, according to the principles of pleading, its sufficiency under the facts and circumstances of this case must be regarded as admitted.
While the complaint and replication cannot be regarded
But if the same lode has been discovered on the surface By the plaintiff’s grantors, and at the point in controversy was in the actual occupation of the plaintiff, holding the same under color of title, derived by purchase at the time defendant’s rights or the rights of its grantors are supposed to have accrued, a valid location by the defendant or its grantors could not, under such circumstances, be made. A subsequent location extended over a senior
Under the foregoing state of facts, if they exist, defendant’s efforts to acquire title to any portion of the premises in controversy would be wholly unavailing; for entering upon premises in the actual possession of another, for the purpose of performing the acts necessary to constitute location and possession, amount only to a trespass, and cannot form the basis for the acquisition of title.
We come now to the action of the court in directing what verdict should be returned by the jury. This was clearly error. The character of the evidence admitted on the part of the plaintiff and defendant entitled the parties to have its sufficiency to sustain the issues determined by the jury instead of by the court.
“It is a rule of law, that if there is evidence which tends to establish the plaintiff’s cause of action, or the defendant’s case, it is erroneous for the court to withdraw the case from the jury, or to direct a verdict, because it is not for the court to judge of the sufficiency of the evidence.” Proffat on Jury Trial, § 355.
There was evidence tending to establish plaintiff’s cause of action; evidence of a long continued and uninterrupted possession; of the expenditure of large sums of money in development of the property in dispute, from the workings in the tunnel and upon the surface as well. This
Reversed.