11 Colo. 380 | Colo. | 1888
The first and second paragraphs of the petition filed for rehearing state the substantial grounds relied upon by the appellees in the arguments upon the rehearing. They are as follows: ‘‘ (1) The decision seems to be based upon the ground that appellees’ discovery shaft was sunk upon appellants’ claim, a valid subsisting claim, and therefore void. The court erred, in that the discovery of the Verde was made on unoccupied public domain, but it became, by reason of the survey, an overlapping claim on the Golden Bell. (2) The court erred in deciding that the abandonment of the so-called Golden Bell by Omar and Clark, by making its date of discovery the 25th day of April, 1883, instead of February 24, 1883, did not inure to the benefit of the appellees.” It is further urged, in this petition, that the decision of this court in Mining Co. v. Mining Co. 6 Colo. 380, hold
Upon allowing the rehearing, a question, based, as was supposed, largely upon appellees’ theory of the case, was submitted for argument. Counsel for the appellees, however, raised the objection that the question submitted was unfair to them, in that it assumed a state of facts which did not exist. They did not confine themselves to the discussion of this question, but, as they admit, devoted their principal arguments to the case as presented by the whole record. They also alleged errors and inconsistencies in the opinion filed, which were not pointed out in the petition for i-ehearing. But in view of the facts that the case must be remanded for another trial, and that important facts and points were misapprehended by the court on the former hearing, we deem it expedient that the opinion filed be withdrawn.
The principal errors assigned upon the record of the tidal below relate to instructions given the jury in behalf of the appellees, and the refusal to give instructions prayed by the appellants. The main issue involved in the case is whether the discoverers of the Verde (their discovery being upon the extension of the Golden Bell lode, but immediately outside that part of the Golden Bell vein and territory then claimed by its discoverers) could, in the manner here attempted, initiate a claim to the territory of the latter lode which might ripen into a valid claim in their favor through subsequent delinquencies on the part of the original discoverers of that lode.
The proposition of appellants that the claim of Omar
It is conceded that, if the boundaries of the Golden Bell had been marked, no claim to any portion thereof could have been initiated until after a forfeiture had occurred. To hold that the miner, as soon as he discovers a lode, must immediately stake the territory which he is entitled to claim thereon, in order to protect it from the invasion and claims of other persons learning of his find, would be an unreasonable, if not an impossible, requirement. An attempt to do so would result, in many cases, in leaving the main portion of the lode outside the staked boundaries. The object of the statute, in giving sixty days for sinking the discovery shaft, was evidently to afford the miner time to sink his shaft, and to ascertain the true course of his lode,, when he would be qualified to mark its boundaries on the surface. When the legislative intent is clear, or can be reasonably inferred, it is
It has been repeatedly held that only the unappropriated mineral lands of the United States are open to exploration and location. No one can therefore lawfully enter upon the territory so claimed, during the period named, for the purpose of initiating a claim thereto; and it necessarily and logically follows, from an application of the same rules and principles, that no one, during this period, can stand outside such appropriated territory and in any manner initiate a claim thereto capable of being rendered valid in the future by the happening of fortuitous circumstances.
The intimation that the claim of Omar and Clark to the Golden Bell was not made in good faith is, in our judgment, without foundation, and is evidently based on a misconstruction of Omar’s testimony. He swears that he worked almost continuously upon the lode from February 21th up to the commencement of this suit, and in this he is strongly corroborated by other witnesses, as well as by the amount of work which he performed upon the ground in controversy during this time.
But another position assumed in argument is that the Verde party made no claim to the territory in dispute until after Omar and Clark had abandoned their claim
The Verde party denominate their survey, made June I, 1883, a relocation of the Golden Bell, claiming that it was open to relocation at that time, by abandonment and forfeiture. If the lode "was open to relocation at the date of this survey, no relocation was made or attempted in manner required by law. All that was attempted to be done was to perfect the location of the claim, previously made by the discoverers of the Verde, to the territory of the Golden Bell, by .surveying, staking and recording a location certificate of that identical territory, all of which, as we have shown, was without warrant of law. These acts not only fall far short of the require-
The attempt to justify the steps taken by the Verde claimants for the acquisition of title to the Golden Bell, by reference to the statutes relating to location of cross-lodes, is equally abortive. It is illogical; there being no analogy between the two classes of locations, nor in the statute relating thereto. In the present case there is a single vein; and under a fair construction of the statutes, federal and state, the portion thereof appropriated by the first discoverer is wholly withdrawn from interference or claim by any other citizen until some default is made. Such is not the law with regard to the location of cross-lodes. In such case there are two lodes, which either cross each other, or, approaching from different directions, unite at some point. In such cases the act of congress (R. S. 2336) authorizes the subsequent locator to cross or enter upon the territory of the claimant of the other lode. In this class of cases a claim to a portion of the previously appropriated territory may be initiated, _ by authority of law, while it remains a valid subsisting claim; but no such authority exists as to the former class.
Concerning the alleged abandonment of the Golden Bell by Omar and Clark on April 25th, a reconsideration of the point shows the claim was not abandoned by the proceedings which took place on that occasion. The purpose in view was merely an exchange' of property, by which Omar should take Clark’s interest in the Golden Bell, and Clark should take Omar’s interest in the Mammoth lode. However irregular this transaction may have been, Clark’s possession of the Golden Bell being surrendered to Omar, the intention of the parties was effectuated. It has been held that a written conveyance is not necessary to the transfer of a mining claim. Mining Co. v. Taylor, 100 U. S. 37; Tunnel Co. v. Stranahan,
The result of this review of the case upon the whole record is substantially to narrow the issues to the single question whether a claim of ownership to mining territory which has been appropriated by the discoverers of a lode therein, made in the manner and under the circumstances above stated, can be initiated by other persons, before default or forfeiture on the part of the discoverers, so as to make it capable of ripening into a valid title, and to answer the same in the negative. It appearing, then, from the record before us, that the claims of title set up by the plaintiffs below to the territory of the Golden Bell were void in their inception, both the claim thereto asserted upon the discovery of the Yerde, and that alleged
It follows from the points decided that the instructions given to the jury on behalf of the appellees were misleading and erroneous in important particulars. The first assumes that adverse rights to mining property may accrue or intervene before forfeiture; the fifth, that all the rights of the discoverers of the Golden Bell, acquired by discovery and posting of notice on February 24, 1883, were lost by changing the names of the claimants, and the date of the discovery notice; the sixth, that the appellants are estopped, by their certificate of location, from claiming a discovery of their lode on the 24th day of February. All these instructions are erroneous and misleading as between the parties to this controversy, for the reasons above given. The points decided will enable the trial court to correctly instruct the jury concerning the legal propositions involved in the action.
Ordered that the judgment entered herein on the 4th day of January, A. D. 1888, be vacated and set aside; that the opinion filed be withdrawn, and that the judgment of the court below be reversed and the cause remanded.
Reversed.