Colorado M. R'y Co. v. Croman

Bissell, C. Hpon the record it is impossible for this court to do otherwise than affirm the judgment or order of condemnation. The objection that the testimony is insufficient to support it is not well taken. The appellants contend that under one instruction, which the court gave, they were entitled upon the testimony to have the verdict set aside. The court instructed the jury, in substance, that a mining claim must be located along the course of the vein, and that the locators of a claim running across the strike of it could obtain no title to the surface ground within the limits of the location, except for the statutory" distance on either side of the middle of the vein, and, should the jury find that the strip in controversy was outside of the limit, then the claimants could not recover damages for the taking of the surface by the company. It is urged that, under this instruction, the case as made does not justify the verdict. Assuming the instruction to be-correct, the appellant’s claim would be well founded, if it were shown by the record that the testimony introduced established those facts which make the instruction pertinent and applicable. It is well settled that the rights of the miner to the surface ground of his location are dependent upon his discovery, and upon the relation which the vein, in its course and direction, bears to the surface as it has been located. The grant of the vein has always been held to be. [384] the principal thing, and the surface but an incident, which, as to its extent, is entirely determined by the course of the principal thing granted, to wit, the vein. Patterson v. Hitchcock, 3 Colo. 533. While this is true, if the petitioner in condemnation desires to avail himself of the force of this principle, and obtain rights by virtue of its application, it is incumbent upon him to establish whatever facts are essential to show its applicability. This he has not done in the present case, and it is impossible for the court upon the record to adjudicate that the order should be reversed for this reason. The other errors complained of are based on the various instructions given to the jury, and on the refusal of the court to give proper weight to the petitioner’s rights in the property, which are said to grow out of the title of the agricultural claimant, Hopkins. Some of these instructions, notably the third and fourth, are open 'to criticism, and might necessitate the reversal of the case, if it appeared that the company were prejudiced by what the court announced as the law. The difficulty is that, if error at all, it was error without prejudice. Appellant cannot be permitted in this proceeding to seek a condemnation of certain lands, and at the same time, and in the same suit, and in the same petition, set up a title in fee in itself, and ask an adjudication upon it. Proceedings in condemnation can only be instituted under the particular statutes which warrant them. The statutes from which the authority to institute them are derived limit the right to certain classes, to wit, those who seek to take property belonging to others for purposes designated in the enactments upon that subject. If the petitioner is unable to bring himself within the deseriptio personm of some act from which he derives his rights, or if he fails to show that he is seeking to take private property, and desires to ascertain its value in that proceeding, his petition must be dismissed. His right to maintain it is as much dependent upon the fact that he desires to take certain propertj^ belonging to another person, for a price to be ascertained in the suit, as it [385] is upon his being found to be included in the class to which some statute concerning eminent domain gives the right to proceed in this manner.. It has been adjudged that, in the absence of any limitation in the petition, a title in the respondent which justifies the assessment in his favor of full compensation is conceded. Railway Co. v. Haggart, 9 Colo. 346. If the petitioner himself claims title in fee to the property, the very assumption of that fact in his petition ought to destroy his right to either institute or continue the proceedings, for they are only warranted where he seeks to obtain the property of another. The two things are wholly inconsistent. The petitioner, having instituted an action under the eminent domain act, cannot be allowed to maintain the same for the mere purpose of quieting title. Railroad Co. v. Allen, 13 Colo. 229; also 9 Colo., supra; Railroad Co. v. Strange, 63 Wis. 178. The judgment should be affirmed. Richmond and Reed, CC., concur. Pee Cubiam. For the reasons stated in the foregoing opinion the judgment is affirmed. Affirmed.