33 Colo. 142 | Colo. | 1905
delivered the opinion of the court.
The suit was brought in the district court of Summit county by D. H. Moffat, the appellant here, in support of his adverse claim against the application for patent to three certain placer claims situate in the Consolidated Union and Spaulding Mining Districts in Summit county; the plaintiff claiming that at the time of the bringing of the suit, and since the 31st day of March, 1900, he was the owner and in the actual possession of the Kate S., the Lafe Junior and the Clara C. placer mining claims. The same premises, at the time of the location by the plaintiff’s grantors, were claimed by the defendant
The principle stated applies to the relocation of a placer. These claims were attempted to be located on the 1st day of January, A. D. 1898, in the early hours of the morning. If the owner had not complied with the law and filed certificates of annual labor, and had not done the necessary amount of work upon the claims, the land embraced therein was forfeited and reverted to the public domain on the 1st of January, 1898, The claimants made no discovery at the time of the posting of notice on January 1, 1898, but base their right of location upon a discovery made in the fall of 1897; the ground, they claim, having been abandoned prior to January 1, 1898. There was' no proof of abandonment other than that offered which tended to show that there had not been three hundred dollars’ worth of work done on the claims during the year 1897. It appears that some work was done on the claims during the year 1897, and notices posted. The plaintiff does not claim that the law is otherwise than is stated in the opinions quoted, but insists that it has no application to this case. That unless it appears from his testimony that the land upon which he made a discovery was in the possession of another under a valid and subsisting location or entry, that his case was made out when proof of the discovery and loca
In this case the plaintiff’s testimony showed that the land was covered at the time he made his original discovery and location by a prior location; that the men .who went upon the land to make the discovery knew that it had been taken up; that they used the description of the prior location in making their location certificates by copying from the records of the county the original location certificates; that they found upon the ground excavations in which had been placed notices stating that the work was the assessment work for the year 1897; that they found nearly all the corners of the original locations of the three placers standing on the ground. It was then incumbent upon the plaintiff to prove that these claims were invalid or that they had been abandoned. No effort was made to show that the locations were not in conformity to the law, and forfeiture was not pleaded. Witnesses testified that in their opinion
Upon the authority of this ease the district court properly granted the motion for nonsuit, because the plaintiff not only failed to prove that the land was open to location, but did prove that it was claimed by others; that location certificates had been filed in the recorder’s office of the proper county, that the claims had been staked and that some work had been done upon them. His proof, then, fell far short of showing a right in him to make the location, and the
The plaintiff objected to the defendant’s crgssesamining witnesses or participating in the trial, upon the ground that it had not complied with section 10 of an act relating to corporations, found on page 121, Session Laws of 1901. The court reserved judgment upon the objection and did not pass upon it. After the nonsuit was granted the objection was renewed, and the court overruled the objection upon the ground that the plaintiff was no longer interested in the litigation and was not in a position to make the objection. The plaintiff objected to several of 'the instructions given, but the court held that he was not a party and therefore could not object. After the nonsuit .was granted the proceedings became ex parte, and it is not material in this review of the case to consider any other question than that presented by the granting of the motion for nonsuit. In the case McMillen et al v. Ferrum Mining Co., 32 Colo. 38, it was said: “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
The language thus employed is peculiarly applicable to the case now before us, and the rule of practice there announced is decisive of this case in so far as it relates to questions raised after the motion fof nonsuit was granted. The plaintiff having failed to establish a valid discovery and location, the court properly granted a nonsuit, and he was not prejudiced by the opening remarks of counsel to the jury of which he complains, nor the refusal of the court to permit him to introduce an amended location certificate. The judgment is therefore affirmed.
The former opinion is withdrawn.
Affirmed.