71 P. 77 | Utah | 1903
In this case both parties have appealed from the decree of the district court, and the case, briefly stated, is as follows: The complaint alleges plaintiff’s corporate existence, and that on January 1, 1895, T. J. Kirkman, George E. Kirkman and T. W. Kirkman, duly entered upon certain vacant mineral land of the United States, and located the Silver King mining claim, and that during each year since the location the locators and their successor in interest (plaintiff) duly performed the work required by the laws relating to annual work on mining claims; that the locators duly conveyed, by proper deed, their rights to plaintiff, and that plaintiff is the owner and in possession of said mining claim; that after the location of the Silver King the defendant, claiming to be the owner of an alleged mining claim called the “High Roller,” wrongfully caused the latter to be so surveyed as to overlap the Silver King, and include a portion thereof (describing it), amounting to 8.397 acres; that on July 15, 1899, the defendant made application to the proper authorities of the United States for patent for the said High Roller claim, including the said 8.397 acres claimed to be a portion of the Silver King claim; that within sixty days after said application plaintiff filed in the land office a protest and adverse claim in due form, and that thereupon proceedings were stayed to await the determination by a court of competent jurisdiction of the right of possession of said disputed area of ground. The complaint contains other formal allegations that it is not necessary to recite. The defendant’s answer admits the corporate
Upon the trial the plaintiff offered W. H. West, Wm. Yan Ausdale, J. C. Holman, and others to prove a valid location of, and continuous assessment work upon, the said Silver King claim, in order, of course, to show that the area in dispute was part of a valid mining claim, and not public land subject to location, at the time of the location of the High Holler claim. Plaintiff, having concluded that branch of the case, next offered in evidence its articles of incorporation, which were received over the objection of the defendant. The evidence of plaintiff’s succession to the rights of the original locators of the Silver King was as follows: W. H. West testified that one day in the year 1897 he saw the original owners of the Silver King claim at Santaquin, and “there was talk of incorporation,” and the following paper was signed by T. W. Kirkman, Geo. E. Kirkman, and T. J. Kirkman, all the original locators of said claim: “This certifies that we, the undersigned, for and in consideration of
Plaintiff assigns as error the rejection of the deed to the Santaquin Mining Company and the court’s ruling sustaining defendant’s motion for a nonsuit. Defendant’s principal assignment is that the court erred in holding finally that the deed in question was valid, and vested the title to the Silver King claim in plaintiff, and in holding that the location of the High Roller claim was invalid. We think it is clear that the learned judge below erred in rejecting the deed offered by the plaintiff to prove itself the successor to the title of the original locators. A paper purporting to
The claim that the instrument was delivered when put into the hands of W. H. West with instructions to deliver it to the company when formed, is wholly untenable.
Plaintiff contends that we should direct a decree in its favor; defendant, that we should grant a new trial of the cause. To direct a decree in favor of plaintiff would
The decree entered below is set aside, and a new trial granted. Costs of this appeal are awarded to the plaintiff.