Lily Mining Co v. Kellogg, 66 P. 875

Lily Mining Co v. Kellogg

66 P. 875 | Utah | 1901

MINER, C. J.

On the eighth day of May, 1899, the appellant located the Ralph lode mining claim, and on the first day of May, 1900, the respondent brought suit against the appellant, claiming that it was the owner of the Lily of the West lode mining claim, and that the Ralph lode mining claim, as staked and located, conflicted with the Lily of the West, and claimed a conflict in the area as located. The appellant filed his answer, and denied the conflict and claimed the area in conflict was a part of the Ralph lode mining claim. On the trial all the parties agreed as to the point where the northeast corner of the Lily was located, but there was a c'on-flict between the parties as to the direction southward in which the easterly line of the Lily ran. The Ralph claim was located adjoining the Lily on the east. It was contended by the respondent that the easterly green line, as shown on the map in evidence, was the easterly side line of the Lily, while the appellant contended that the easterly black line; as shown on the map, was the easterly side line of the Lily. The Lily was located on the twelfth day of April, 1896, and the direction of the location as given is northeasterly and southwesterly *198from the discovery point where the location notice was posted, so that the side line would run northeasterly and southwesterly. The east line, as claimed by the respondent, runs due north and south, running north two degrees and twenty-six minutes east, which would not be in the direction named in the location notice. Appellant’s line as claimed is eight degrees and thirty-seven minutes east, and running south eight degrees and thirty-seven minutes west, and therefore more nearly agrees with the location notice. The monuments of the Lily at the southeast and southwest corners had been removed and changed several times and again set up, as appellant claims, at places other than the original corners, but upon- this point there is some conflict in the testimony. The trial court in its findings and decree gave the Lily a portion of the land claimed by the Ralph, which, in the complaint was not claimed by the respondent at all, being a triangular piece of land lying south of the north line of the Ralph claim bounded on the map by the green line on the one side and the orange line on the other, thereby establishing the northeast corner of the Lily at a different location from where the testimony places it, and fixing the east boundary line thereof on a different line from that claimed by either party, the land on the east of said line being awarded to the Ralph and on the west to the Lily. It is claimed that the court erred in entering a decree for the respondent and awarding it a portion of the Ralph claim which was not claimed by the respondent and was not in dispute. In this we think the court erred. As a general rule, universally recognized, a court can not, of its own mofion, determine questions that are not before it, and which are not raised by the parties in their pleadings. A court can not give to a plaintiff a portion of the real estate that is claimed by a defendant, and which the plaintiff does not claim or assert any right to, or where he concedes therein that it belongs to the defendant. The mistake made was not so much in the direction of the easterly line of the Lily, but *199in tabing as tbe initial point of the line, not the corner conceded by the parties to be the northeast corner, but another point which neither party claimed to be the corner, and which was not shown to be the northeast comer of the Lily. The mistake alluded to can easily be corrected by the trial court upon a rehearing of the case.

Notwithstanding the able arguments of counsel for the respondent to the contrary, we are of the opinion that in this case justice between the parties can be more nearly and effectually awarded by setting aside and reversing the decree of the trial court, remanding the case, and granting a newr trial, with costs. It is so ordered.

BASKIN and BARTCH, JJ., concur.