Craig v. Thompson

Stallcup, C. The questions assigned and argued here will be considered in the order presented. — 525 — 1. Did the court err in admitting in evidence the-amended location certifícate of the Bristol lode? Upon the part of the appellant Craig it is insisted that this certifícate of location was insufficient, for the reason that it did not refer to any permanent monument, as required by section 2324, [Revised Statutes of United States, and that the rights of Craig had intervened. The requirement of this section is that the record of a mining claim shall contain “such a description of the claim or claims located, by refei’ence to some natural object or permanent monument, as will identify the claim.” The amended location certificate locates the Bristol lode by reference to two mountain peaks, — ■ one on the east side of Mission gulch on Clear creek;- the other, at the head of Lake Fork of Clear creek, — by giving the course or bearing of each from the discovery shaft in degrees and minutes. Prima facie this was sufficient, taken in connection with the balance of the description to identify the claim, and the amended location certificate was properly admitted in evidence. If other mountain peaks exist in the same vicinity, visible from the same point, or if, for any other reason, neither one of those mentioned in fact served to identify this claim, that was matter for the appellant to show by proper proofs. 2. Did the court err in refusing to give the first and third instructions asked for by appellant? They were as follows: “ The court instructs you that, when a discovery is made by an open cut, such open cut must cut the lode at a depth of ten (10) feet, and such cut, to be a lawful discovery, must be ten feet deep below the natural surface; and if you find, from the evidence, that the discovery cut on the Bristol lode was not excavated to the depth of ten feet at any point below the natural surface, you must find that it was not a legal discovery. You are further instructed that a party cannot, in running an open cut for discovery, avail himself of any natural elevation and exposure of the vein above the natural surface, in esti — 526 — mating the depth of such excavation; that the law contemplates depth which cannot be obtained by picking .up the face of a cliff.” “If you believe, from the evidence, that the so-called Bristol lode was discovered by an open cut or drift on the vein, then, in order to make a valid discovery, plaintiffs must have cut, by their work in such discovery, ten (10) feet below the surface.” If the discovery cut of the Bi’istol lode was in along the vein,— and we think the testimony shows such to have been the fact, — then the foregoing instructions prayed for by the appellant do not conform to the requirements of the statute as construed by this court. In Mining & D. Co. v. Van Auken, 9 Colo. 207, it was held that the legislature had applied the term “adit” to an excavation “in and along a lode,” and had fixed, as the initial point from which the development was to be measured, “the point where the lode may be in any manner discovered-.” The distance required for an adit to be run in, upon or along a lode is ten feet, without regard to depth. The testimony in .the present case shows an excavation of the vein for a distance of about fourteen feet. The court instructed the jury, on its own motion, concerning the statutory requirements relating to depth of discovery shafts or open cuts, and the length of adits. The jury having been properly instructed, and its finding being supported by the evidence, there was no error in the rejection of the instructions mentioned. 3. Did the court err in refusing to give the following instructions for appellant: “The mining law of this state allows a person to locate a mining claim for himself and others, with his name and that of others on the location, and designating of the claim; and when one person thus locates a lode or claim for himself and those others, even though the others have no knowledge of the location, the persons who have no knowledge of the location of the same become tenants in common with the locator, and cannot be divested of their interests by the locator — 527 — afterwards tearing down the notice, and posting up another omitting their names, unless this is done with their knowledge and consent. And if you find, from the evidence, that a man by the name of Runkle was interested with Parry in said location or discovery, and, without his knowledge or consent, the stake was so changed that D. C. Sindlinger and George Thompson were to acquire any interest by virtue of such discovery, then you will find that such last staking -was void and of no effect.” “The mining law of this state allows a person to locate a mining claim for himself and others, with his name and that of the others on the location, and designating of the claim; and where one person thus locates a claim or lode for himself and those others, even though the others have no knowledge of the location, they by the same become tenants in common with the locator, and' cannot be divested of their interests by the locator after-wards tearing down the notice, and posting another omitting their names, unless this is done with their knowledge and consent.” There was no error in refusing these instructions. The evidence shows that Runkle had long since abandoned whatever rights he may have acquired in this claim. He was not a party asserting any rights in the action; nor does it appear that the appellant, Craig, or arfy one else, was authorized to represent him. It was a matter in which the appellant had no personal interest; and, had these instructions been given as prayed for, they would necessarily have introduced a false issue into the case. They were therefore- properly rejected. 4. Was the verdict of the jury against the evidence and the instructions of the court? For the appellant it is insisted that as the original certificates of location of both claims were excluded for defects therein, and as the appellant was prior in point of time in making and recording the amended certificate, that thereby the appellant acquired the ground in controversy, and that the appellees lost the same. The discovery by Parry of the — 528 — Bristol on August 4, 1880, is conceded, together with the posting of the notice thereon showing the extent of the claim. On the 6th day of September thereafter, the appellant Craig met Parry, and, in a conversation with him, stated that he was on Parry’s ground, and proffered purchasing a portion of the same from Parry. This conversation occurred away from the premises, two days after the date of the discovery of the Mammoth by appellant, and shows the knowledge of appellant of the Bristol claim, and the extent thereof. Parry had sixty days from August 4th in which to do the discovery work. The encroachments of appellant Craig on the Bristol during that time were trespasses, and no rights inured to appellant Craig thereby. The discovery work was duly done upon the Bristol, and it was duly staked. The location certificate was made thereafter, and recorded November 4, 1880. The certificate of location was defective, for the reason that it did not make reference to some natural object or permanent monument, so as to identify the claim, and for that reason was excluded from the evidence in the case; but testimony was admitted to show that by the amended location certificate of December, 1881, recorded January 12, 1882, that the same ground was thereby covered that had been covered by the original certificate.. So it is apparent that at the time defendant Craig located the Mammoth, to writ, September 4, 18S0, the ground in controversy here was in such possession of Parry, as locator of the Bristol; that Craig was a trespasser thereon, and obtained no rights thereto by such trespass. Mining Co. v. Mining Co. 6 Colo. 380; Ehrhardt v. Boaro, 2 Colo. Law Rep. 89. And it appealing from the evidence that Parry made a location of the Bristol, valid in all other respects, but failed to file for record a valid certificate thereof, it follows that the amended certificate, made before Craig (through location acts performed after the expiration of Parry’s time for locating) had acquired intervening rights, would, as — 529 — to Craig, relate back to, preserve and keep intact the Bristol claim as originally located and staked. There was no forfeiture or abandonment of the Bristol by appellees; so that, as against appellant Craig, by the execution of the amended location certificate of the Bristol in December, 1881, and recording of the same in January, 1882, the appellees continued to be the rightful possessors of the ground in controversy. The judgment should be affirmed; Rising and Macon, CO., concurring. Per Curiam. For the reasons assigned in the foregoing opinion'the judgment' of the district court is affirmed. Affirmed.