Low v. McCallan

Myrick, J. J. First. When the defendants’ motion for a new trial came on for hearing in the court below, the court permitted the defendants (respondents here) to amend their statement by adding and inserting the words “ or predecessors ” after the word “ grantors,” in specification 1. We do not see that any injury resulted to the plaintiffs. Second. It was material, whether the land between the ditch of plaintiffs and the building of the defendant McCallan had ever been located as a portion of a mining claim, and if so located, whether an abandonment had occurred. The court granted the new trial on the sole ground that the evidence did not establish the fact that the premises had, prior to the year 1868, been located and appropriated as a mining claim j or, if so located and appropriated, that plaintiffs had succeeded to the rights of the locators. We do not find, from an examination of the evidence, that the court committed an error in so holding. As to abandonment in fact, whether properly located or not, the evidence, in the most favorable aspect for plaintiffs, is conflicting. The order is affirmed. Sharpstein, J., and Thornton, J., concurred.