3 Colo. App. 278 | Colo. Ct. App. | 1893
delivered the opinion of the court.
The condition of the proofs entitled the appellants to an instruction, which the court refused to give. No other matter will be considered, for the errors complained of are either not of sufficient gravity to reverse the case, or were cured by what subsequently occurred during the trial. A very brief statement will suffice to render the opinion intelligible. The controversy is in the form of an adverse suit between the owners of the Long John Lode and the owners of the Aurora and Elgin claims, which were located on Aspen Mountain in Pitkin county. The Long John was the prior location, having been located in the summer of 1883. The litigation does not involve the validity of any of the steps taken to initiate the title to any of the claims, and the facts with respect to these matters will not be stated. In May,
Ever since the decision of the case of Gwillim v. Donnellan, 115 U. S. 45, it has been the conceded and established law that if a locator permits an adjoining claimant to obtain a patent from the government for that portion of his territory which includes his discovery shaft, and he is without another which gives him a superior right as against the contesting claimant, he must be adjudged to have lost title to whatever territory is embraced within the limits of his claim. That
For the error committed by the court in refusing to give a proper instruction upon this subject, the cause must he reversed and remanded for a new trial, in conformity with this opinion.
Reversed.