32 Colo. 38 | Colo. | 1903
Lead Opinion
delivered the opinion of the court.
This is an action brought by plaintiffs below as the owners of the Eulalia lode in support of an adverse claim filed by them in the United States land office against the application for patent by the defendant for the Golden Eod lode claim, situate in Leadville mining district. At the close of the trial the court ruled that under the pleadings and evidence plaintiffs had not made out their case, and after instructing the jury as to the essential requirements of a lode location said that if defendant had complied therewith á verdict should be returned for it. There was a verdict for the defendant, and from the judg
A number of rulings of the district court have been attacked as erroneous and argued by counsel which, were appellants in a position to complain, would merit most careful consideration. But since we have reached the conclusion that the trial court was right when it instructed the jury that plaintiffs were not entitled to- recover, because they had not shown a valid discovery of mineral in their location, it follows that many of the rulings attacked, even if wrong, are not prejudicial to plaintiffs, and we, therefore, determine only that assignment relating to such discovery, as it is the only one of which they may complain.
1. The ground covered by the two claims is substantially identical. It was formerly included within the limits of the Winter lode, and a part of it was afterwards embraced within the exterior lines of the Pocket Liner lode. When, in 1893, plaintiffs’ grantor went upon the ground, both of these claims were abandoned, and he proceeded to relocate as an abandoned claim the territory theretofore covered by them, and adopted the boundaries and stakes of the Winter location. He sank a discovery shaft to the depth of about twelve feet, and at the alleged point of discovery posted his location stake, and in due time filed for record his location certificate, in which, as we read it, the discovery is designated as in the discovery shaft.
At the trial, plaintiffs admitted that this discovery shaft did not disclose a well defined crevice. On the contrary, they conceded that it had not passed through the wash and debris usually encountered upon Breece Hill in the Leadville mining district. Notwithstanding that no discovery was in fact made in the discovery shaft, and the further fact that the
That plaintiffs ’ contention may be correctly stated here, though it involves some repetition, we quote what their counsel said when asked by the trial court his purpose in offering proof of a former discovery and in the Pocket Liner lode:
“Mr. Eldeb: The proposition of the plaintiffs is simply this: That Mr. McMillen, as an owner and a locator of the Eulalia lode, knew at the time he placed his stake upon the Eulalia claim on the 30th of May, 1893, that he in company with the co-owners of the Pocket Liner claim, had discovered ore in the shaft of the Pocket Liner claim; that at the moment that he placed his stake upon that ground claiming the Eulalia claim as abandoned and unoccupied territory, that theretofore there had been a discovery of mineral within the requirements of the statutes of the United States, and of the state of Colorado, and that that knowledge within the mind of Mr. McMillen constituted a complete, final and perfect location of that mining claim, provided he did the other things requisite under the statutes of the state of Colorado, by sinking a discovery shaft ten feet in depth,” etc.
And again in the printed briefs counsel for appellants says:
*42 “We claim for appellants that the discovery made by one of them, Samuel McMillen, in the Pocket Liner shaft, while the same was being sunk in the years 1879 and 1880, formed a complete compliance and performance of one of the two prerequisites prescribed by the acts of Congress to vest in him the complete possessory title to the Eulalia lode mining claim, and that his entry upon the 30th of May, 1893, and distinctly marking the said claim on the ground and sinking a discovery shaft over a depth of ten feet, completed the other prerequiste to vest the title in him.”
That the rulings of the trial court may also correctly appear, we take the liberty of reproducing what the judge said in reply to an attempt on the part of plaintiffs to show a discovery made by them in performing assessment work and doing certain other work subsequent to filing their location certificate. “You can,” said the judge, “prove this, if possible, any discovery which you made on that ground. I care not where it is, or in what shaft it is ; if you have made a discovery, prove it. ’ ’ And again: “If in 1895, you made a discovery upon that ground, and you claim under that discovery, you may go to work and'prove your claim under that discovery.”
Prom the foregoing it is apparent that learned counsel for appellants (plaintiffs below) contends that mere knowledge by the Eulalia locator of the existence of a vein in the Pocket Liner made his location valid, provided he performed the other statutory acts of location aside from the actual discovery of mineral. ’
It has been held that it is not necessary that the locator of a mining claim should be the first discoverer of a vein or lode in order to make a valid location. If it appear that the locator knew at the time of making his location that there had been a discov
‘ But as stated by Judge Boss in the Oil Company case, supra, not only must the locator “have knowledge of the former discovery, but such actual discov--' ery must be adopted and claimed by him in order to give validity to his location.”' That is to say, the locator must claim and adopt such previous discovery as his own and base his location upon it.
In the O’Donnell case, supra, the supreme court of Montana, it is true, held that the locator was not confined to the nominal discovery shaft, but might select some other place within the limits of the location and show a valid discovery there. But that decision, as the opinion clearly shows, was based upon section 2320 of the Revised Statutes of the United States, which merely provides that “no location of a mining claim shall be made until.the discovery of the vein or lode within the limits of the claim located, ” and the supreme court of Montana aptly observed that there is no provision for a discovery shaft in the federal statute or any statute of Montana. The court further said that the fundamental mistake in the argument of counsel that a locator was not permitted to select at will any shaft besides the nominal discovery shaft, was ‘ ‘ that it assumes that a notice on the ground, at the point of discovery, is necessary when it is not required by law. ”
Obviously, had there been in Montana, as there
Now, when tender of proof was made by plaintiffs’ counsel of the former discovery, there was no offer to show that it was claimed by their locator or adopted by him as the one on which the Eulalia location was made. For this reason alone the court was justified in refusing to hear the proof offered, for it did not meet the requirements of the decisions in which the doctrine is laid down that a former discovery may be the basis of a valid location.
It is true that in tendering instructions, plaintiffs submitted one which contained the element of an adoption by the relocator of a former discovery as the one upon which his own location was based. There was no error by the trial court, however, in refusing to give this instruction, because there was no evidence, or offer of evidence, by plaintiffs that called for it. The fact that plaintiffs ’ grantor knew and claimed that there had been a former discovery is not equivalent to, nor does it supply the place of,
2. There is another reason for - holding that plaintiffs may not avail themselves of that rulé. It appears that they not only do not question the .validity of our state statutes which prescribe certain acts as necessary to a valid location, but in their complaint they aver that, in the location of the Eulalia lode, the provisions of the state, as well as of the federal, statutes were complied with; and among the instructions which they themselves asked the court to- give was one — applicable both to their own and the Golden Rod location — in which was the declaration that, as provided by section 3152 Mills’ Ann. Stats., a valid location of a lode mining claim cannot be made unless the locator sinks a discovery shaft upon the lode discovered to a depth of at least.ten feet from the lowest part of the rim of such shaft at the surface, or deeper if necessary to show a well-defined crevice, and unless he posts at the point of discovery on the surface a location stake containing certain designated things.
Such being true, plaintiffs certainly cannot now be heard to say- that they may at their will disregard these mandatory provisions of state legislation which they themselves have invoked, for, if we assume their validity (which plaintiffs themselves do not quéstion, and which they declare they have complied with), the
Lindley on Mines at section 250 (15) says that state courts have uniformly enforced provisions like those of ours concerning discovery shafts and posting of notices, notwithstanding doubts by the Interior Department as to their validity. See, also, Van Zandt v. Argentine M. Co., 8 Fed. Rep. 725; Ibid, 122 U. S. 478; and Morrison’s Mining Rights (9th ed.) 29. But, as already shown, plaintiffs are not questioning their binding force and are not in a position to do so.
3. From what has already been stated, it is clear that the trial court did not preclude plaintiffs from showing, a valid discovery of mineral within the limits of the Eulalia location before the rights of defendant attached, though from a superficial examination of the record the contrary might appear. The assertion that defendant has failed to establish a valid location is not borne out by the evidence. Defendant’s proof in that behalf is amply sufficient to show a valid location, assuming, as the record justifies, that plaintiffs’ location was invalid.
We feel it to be our duty not to. close this opinion without expressing our disapproval of the severe strictures made by counsel for appellants upon the rulings of the trial court. Doubtless he sincerely believed that injustice had been done his clients, but sarcastic references to the trial judge and invective employed against him do not aid appellate courts in determining legal controversies.
A careful examination of this record satisfies us that no error was committed by the trial court of
Affirmed.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court.'
In the oral argument in support of their petition for rehearing, counsel for appellants confined himself to three general propositions, and to these will our discussion be mainly devoted.
1. That the locators of the Eulalia lode might have availed themselves of a previous discovery within' the limits of that location, and might have adopted the same as their own and based their location upon it without making a valid discovery for themselves, there can be no doubt under the authorities cited in the foregoing opinion. Appellants’ argument as to this point may be dismissed with the single observation, which, in fact, has already been made, that they did not do so. The record clearly shows that they have not brought their case within the principle contended for, since in their offer of proof they expressly rely upon mere knowledge of a former discovery and make no pretense of having adopted it as their own. It is apparent that appellants, while right in their statement of the law, are wrong in supposing that the facts of this case call for the application of any such principle.
2. Appellants again call to our attention their assignments of error directed against the rulings of the trial court refusing their offer of proof of a discovery within the limits of the Eulalia made through the. underground workings of the Little' Yinnie claim. In the original opinion no special reference was made to this position, because the radical defects in appel
This underground discovery is said to have been made between the months of September and December, 1894. If so, we fail to see how it can avail the appellants, for earlier in the year of 1894 the appellee, as the jury must have found, and as the evidence abundantly shows, made a valid discovery in the old Pocket Liner shaft within the present boundaries of the Golden Rod location. This discovery, as well as the location based upon it, is prior to that of appellants, whether or not the law requires in such circumstances an amended, or additional, location certificate to be filed. If the law does not require such filing, appel
3. Section 188a Mills’ Ann. Code, declares that in a suit like the one at bar it shall be the duty of the court at the trial, upon application of either party, to send the jury impaneled in the case in a body to view and inspect the premises. At the trial below, the plaintiffs made such application. Whether they complied with other provisions of the same statute as to advancing the expenses which a compliance with the request involves, we do not pause to inquire; for' the assignment attacking the ruling denying the request may be disposed of on more satisfactory grounds. In Connolly v. Hughes, 18 Colo. App. 372 (71 Pac. Rep. 681), our court of appeals, assuming that the provision of the statute was mandatory, held that it did not apply to a case, such as was then before the court, where the party making the request had not introduced any evidence to establish his case. We think that ruling was right, and the principle applies to this case. Although the plaintiffs here did introduce evidence to establish the validity of their title, they wholly failed to make out a case for submission to the jury.
4. In the oral argument counsel for appellants conceded that, if it was not necessary for appellee to post a new notice at the point of the second and valid discovery of the Golden Rod vein in the Pocket Liner shaft made early in 1894, which the amended location certificate of the appellee recited, the Golden Rod location is superior to the Eulalia. In the case of the Treasury Tunnel M. & R. Co. v. Boss, ante 27, decided at this term, we have substantially held that such posting was not necessary under such facts as exist here.
5. We desire further to say that the statement in appellants’ petition that we have not applied the same principles of law to the location of these two claims, in so far as they are based upon the discovery of mineral in the Pocket Liner shaft, is incorrect. The facts attending the two locations are not the same, as we have already said; hence, the rule applicable to the one case is not the same that governs the other. The locators of neither lode posted at the point of discovery in the Pocket Liner shaft a loca
Tbe petition for rehearing is denied, and tbe for-' mer opinion adhered to.
Rehearing denied.