46 Colo. 503 | Colo. | 1909
delivered the opinion of the court:
This is an action in support of an adverse claim. Plaintiff’s Little Jonnie lode conflicts with defendant’s Evening Star No. 2 and Silver Moon, and her McBrein with defendant’s Bachelor lode. The judgment on the verdict was for plaintiff. As we read the record the judgment is wrong. The location certificates of both of plaintiff’s lodes are insufficient under the law, and are void. Plaintiff’s own surveyor testified that it would be impossible therefrom to identify or designate the claims on the ground. Amended location certificates to cure the defects of the originals were subsequently made and filed by plaintiff’s grantor, but not until after the rights of defendant’s grantors by the location of their own lodes attached. If the law be that a totally void location certificate may be subsequently amended if the boundary lines of the location are not changed, even though the rights of third parties have intervened, it is not the law, and has not been so declared, that such amended certificate may include other, or different, territory and, as to that, injuriously affect such intervening rights. The evidence was that her amended location certificates include territory not described in the originals, but which is covered by defendant’s locations.
Plaintiff’s Little Jonnie is subsequent in time of location to defendant’s Evening Star No. 2. The location certificate of the latter was first filed in Rio
The defendant, in its answer, pleaded an abandonment of plaintiff’s claims by the original locator and failure to do the annual statutory assessment work for certain years. There was testimony in support of both defenses. The defendant also called as a witness a Mr. Conley and offered to prove by him that in a certain conversation with Ed.. Crane, the
The argument is technical. The offer was to prove a conversation between two men. What was then said might bind or affect both, even though one did all, or most of, the talking. But if the offer should, in the one aspect, and in the one part, be considered thus defective, it included an offer to show that the witness would testify to the same facts concerning the alleged admissions and statements of the original locator, which were testified to by Mr. Crane, another of defendant’s witnesses. Turning to Crane’s testimony, it appears that he said that the original locator had admitted to him that the assessment work on his claims had not been done and he was going to leave them to work on other claims, and that he had been there long- enough, neglecting the others.' The court admitted Crane’s testimony upon the issues — rightly so — and should have permitted the witness Conley to testify to the same effect. We cannot say that the record affirmatively shows that the rejection of defendant’s offer of proof was not prejudicial. It may be that the jury would have given Conley’s testimony, if admitted, more weight than it did that of Crane, who was one of defendant’s stockholders, and might have regarded it as decisive of the issue to which it was relevant.
Other questions are argued, hut as they may not arise' at another trial, we shall not decide them. For the reasons given the judgment is reversed and the cause remanded for a new trial.
Reversed' cmd remanded.