Sherlock v. Leighton

Potter, Chief Justioe. Plaintiff in error applied at the United States Land Office for a patent to the Cleveland Lode Mining Claim. Defendant in error filed a protest and adverse claim, and instituted this suit in support thereof to determine the ownership or right of possession, in pursuance of the provisions of Section 2326 of the Kevised Statutes of the United States. The claim of defendant in error is based upon a location of the Dewey lode, July 11, 1898, covering practically the same ground as that included within the exterior boundaries of the Cleveland lode. Plaintiff in error and his grantors had been in possession of the Cleveland lode for several years, and had done considerable work in the direction of its development. By an amendment to the petition it was alleged that dur — 302 — ing the years 1896 and 1897 the claimants of the Cleveland had neglected to perform one hundred dollars’ worth of labor and improvements, or any amount, upon or for the benefit of that lode or claim; and that thereafter and before resumption of work thereon the defendant in error located the Dewey lode; and that in consequence of the non-performance of said work the right and title of plaintiff in.error or his grantors was forfeited, if any such right or title had ever been acquired. The case was tried to the court without a jury and resulted, in a judgment for defendant in error, who was the plaintiff below. The trial court found that defendant in error had established his right and title to the Dewey Lode Mining Claim, and he was adjudged to be the owner and entitled to the possession of the premises in controversy. The case is brought here by proceedings in error. In support of the averment of forfeiture the plaintiff below confined his evidence in chief to proof that in 1897 no work was performedmr improvements made within the boundaries of the Cleveland claim. The defense introduced evidence showing the performance of the requisite amount of work, during that year, in a tunnel outside the boundaries of the claim, but near one of the end lines thereof, upon an adjoining patented claim known as the Carisa or Mono; and that the work in such tunnel was performed as assessment work upon the Cleveland, as well as another claim known as the Sampson, and for the purpose of developing both said claims. According to the testimony produced by the defense, the object of working the tunnel, was the intersection of the vein upon the Cleveland, and thereafter a continuance of the tunnel by the owners of the Sampson until it should reach their claim, which was situated beyond and adjoining the Cleveland. The owner, or one of the owners, of the Sampson was also interested in the Cleveland. It was testified by the witnesses for the defendant (plaintiff in error here), upon this subject, that the tunnel was dug — 303 — in a favorable place to reach the ore on the Cleveland lode. In rebuttal, the plaintiff was permitted, over objection, to introduce testimony to the effect that the tunnel did not tend to the benefit nor to improve or develop the Cleveland claim. The ruling of the court in that regard is assigned as error. It is contended that the burden of proof to establish forfeiture rested upon the plaintiff below who had alleged the same; and that the evidence permitted to be introduced in rebuttal was improperly received, as it should have been offered in chief as a part of the plaintiff’s case. It is undoubtedly well settled that the party relying upon a forfeiture must allege and prove it; and the burden of proof in the first instance rests upon him to establish the forfeiture. When, however, such party shows that no work was performed within the limits of the claim, he makes out a prima facie case; and thereafter should his adversary depend upon labor done outside the claim, the burden is cast upon him of proving the performance of such labor, and that its reasonable tendency is to the benefit of the claim. Hall v. Kearney, 18 Colo., 505 (33 Pac., 373) ; Justice Mining Co. v. Barclay, 82 Fed., 554. If the work has in fact been done for the development of the claim, it may properly be considered as annual assessment work, although it may have been performed without the exterior boundaries of the claim. And in such case, it is held to be immaterial whether the improvement is upon patented or unpatented property, except as this may throw light upon the intention of the parties in doing the work. Strasburger v. Beecher (Utah), 49 Pac., 740; Hall v. Kearney, supra; Justice M. Co. v. Barclay, supra; Mt. Diable Min. Co. v. Callison, 5 Sawy., 439; 9 Min. R., 616. The reason of the rule which shifts the burden of proof in such cases is, we think, obvious. It is not a legal presumption that all labor done outside a claim, by the — 304 — owner, is performed as representation work. If so performed, and it was intended as the required annual labor, the fact must be peculiarly within the knowledge of tbe claimant; and one charging a forfeiture can hardly be expected to be informed as to all work which may have been performed off the claim, or as to the intention or purpose thereof. The court did not err, therefore, in admitting the testimony introduced in rebuttal upon the question of the effect or tendency of the work done in the tunnel. And for the same reason, it was not error for the court to reject the testimony offered by the defendant below in surrebuttal to show that such work did tend to inure to the benefit and development of the claim. It was incumbent upon the defense to show that fact, as a part of its main case, after the plaintiff had made out a prima facie case by proof of the non-performance of work within the boundaries of the claim. This brings us to the questions involved in the assignment of error that the judgment is not sustained by the evidence. In this connection it is argued on behalf of plaintiff in error that the evidence is insufficient to establish a forfeiture of the Cleveland claim. There seems to be no question but that the owners of the Cleveland made a sufficient - expenditure, in 1897, in the way of labor in the tunnel; and that such labor was performed as representation or assessment work for the Cleveland lode. The contention of the locator of the Dewey lode (defendant in error) is, that such labor did not tend to the benefit of the Cleveland. It is argued, with some basis therefor in the testimony, that a continuation of the tunnel in its original direction without a shifting thereof would intersect the Cleveland vein outside the boundaries of the claim. The direction of the tunnel originally was northerly and slightly to the east, but perhaps not enough to the east to strike the Cleveland ground upon reaching the vein. At least that may be assumed to be the case. Subsequently, however, the tun — 305 — nel was caused to proceed more sharply toward the Cleveland end line; and we do not regard this shifting of the original direction as indicating an absence of purpose at the inception of the work in the tunnel to intersect the vein upon the Cleveland ground. The testimony is positive that the work in the tunnel by the owners of the Cleveland was performed as assessment work for that claim, and with the purpose and intention of intersecting the vein. The only question which requires consideration, in this connection, we think, is the effect of that work; whether or not its tendency was for the benefit or development of the claim. Mr. Williams, who owned a one-third interest in the Cleveland and was foreman of the Carisa or Mono, upon whose ground the tunnel was located, testified that when the work upon the tunnel was commenced, it was believed to be close to the Cleveland line, and that it was run to develop that claim as well as the Sampson. That, according to his original calculation, the tunnel would be fifty-eight feet below the surface when it should strike the lead upon the Cleveland. He testified that it was run in a proper place for the discovery of ore upon the Cleveland. Mr. Sherlock’s testimony was, in substance, that the object of the tunnel was to cross-cut the formation and to strike a lead on the Cleveland that would pay. Mr. Luel-lan, a miner of eighteen years’ experience, testified that the tunnel was run in a favorable place to discover ore on the Cleveland; and that as it was so close to the Carisa property it would be a benefit. Another miner, who had been in. that country since 1886, testified that the tunnel was run in a favorable place to reach the ore on' the Cleveland. Stating his reasons, he said that it would cut the lead of the Carisa which was producing valuable mineral; and it was presumed to be just where the lead could be cut through quicker than at any other place. His opinion was that the tunnel would intersect the Cleveland at about the center of the vein. Upon being questioned on eross-exami306 nation whether it would not have been advisable to start the tunnel on the Cleveland, he stated that he did not lcnow as that would make any particular difference. He was asked .if another method of working, mentioned by counsel interrogating him, would not have disclosed the vein; and he responded that he thought the tunnel much the best. It appears that after the completion of the work done in 1897, the tunnel was approached by an open cut of more than twenty feet, and was about sixty feet in length underground. In explaining his testimony Mr. Williams stated that “It was a favorable place to run a tunnel for the discovery of ore on the Cleveland; the distance was less, and we knew more of the existence of the ore here.” Asked from where the distance was less, he said, “From where we started it would be less to where we would find the ore. We were near the Carisa, and did we not strike ore we were that much nearer to the ore bed. ’ ’ In opposition to the testimony of the above-named witnesses, the defendant in error was, in rebuttal, produced as a witness on his own behalf, and also a Mr. Hinkley. The latter was asked whether or not the tunnel or the working therein tended to the benefit of or to improve or develop the Cleveland claim. He stated that he did not consider it of any benefit; that he did not consider it good mining to go 135 feet to strike the vein 30 or 35 feet away; that the vein was already exposed. He also testified that had the tunnel been extended on its original course it would have passed through the vein, as shown by the outcropping, outside the Cleveland ground; leaving the impression that it would, however, enter the Cleveland before intersecting the vein by pursuing the course given to it in 1897. Upon cross-examination, the witness denied saying that the work in the tunnel did not in any way develop the claim, and explained by stating that he did not consider it good judgment to run the tunnel in that way, admitting that others might differ from — 307 — him. The effect of his testimony is exactly what he Anally stated it to be; viz., that in his opinion work might have been done at some other place which would have accomplished more for the development of the claim. Mr. Leighton, the defendant in error, testiAed that, in his judgment, the tunnel did not tend at all to the beneAt of the claim; and his reason, as stated, was that the ground is so Aat there that he did not see how the tunnel could be of any beneAt. He stated further that had he owned the claim, he would not have done the work there. The Anding of the court was general, and no special reference was made in the Andings to the question of forfeiture. The court found that the defendant in error had established his right and title to the Dewey lode, and adjudged that, as against the plaintiff in error, he was the owner and entitled to the possession of the premises in controversy. The Anding may have been based upon a matter yet to be considered; but in view of the general character of the Anding, defendant in error is doubtless entitled to rely upon the alleged forfeiture if the evidence is sufficient to establish it. The conAict in the evidence respecting the beneAcial tendency of the work performed in the tunnel is not of such a character, in our judgment, as to authorize a court of error to refuse to disturb the judgment for the sole reason that it was based upon conAieting evidence. The work in the tunnel, as shown by the undisputed testimony, performed by the owners of the Cleveland, or under their direction and at their expense, was done as assessment work upon that claim, in good faith, for the purpose of developing the same; and they believed at the time that the work would tend to develop it. All the witnesses on behalf of the plaintiff in error who were interrogated upon the subject, testiAed that the tunnel was run in a place favorable for the discovery of ore in the Cleveland claim. In addition thereto, taking the expressed intention and purpose of the parties running the tunnel, and the location of the claim and tunnel and — 308 — direction pursued by the latter, as well as the location of the vein as disclosed by the outcroppings, it appears probable that if continued along its course, as laid out, the tunnel will intersect the vein upon the Cleveland territory. Mr. Hinkley, it is true, testified that he thought more advantageous work could have been performed elsewhere. But the law does not require that the annual expenditure to protect a claim shall be applied in the way of the best possible development of the claim. As to that matter, miners of equal experience and judgment might honestly differ. The testimony of Mr. Hinkley presents no material conflict. He was careful to deny having stated that the tunnel did not tend at all to the benefit of the claim. In the case of Mount Diable Min. Co. v. Callison, 9 Min. R., 616, it was said concerning the annual labor required upon a mining claim to save it from forfeiture, ‘ ‘ Congress plainly required this work to be done by way of a continuous, annual assertion, or renewal of the original claim and location, nothing more, ’ ’ and it was stated that the amount of expenditure required is too small to be of any practical consequence as a development of the claim. With the single exception of the testimony of the adverse claimant, who expressed as his opinion that the tunnel in no way tended to the benefit of the claim, there is no support in the evidence of the allegation of forfeiture. To hold upon the strength of his testimony alone, as against all the other facts in the case and the judgment of other experienced miners, that there had been an abandonment or forfeiture, although the locator had, in good faith, made the required expenditure, believing that the work done would inure to the advantage of his claim and assist in its development, would shock our sense of justice. It would amount to substituting for the honest judgment of the locator, the judgment, doubtless equally as honest, of his adversary who has sought to get posses — 309 — sion of the property by taking advantage of the supposed forfeiture. It seems to us that in determining the question as to the beneficial character of a tunnel such as was constructed in this case, where the opinion of expert witnesses differ upon the question, some force should be given to the honest intention and good faith of the locator, and in a doubtful case that might be sufficient to turn the scale. But, according to most of the witnesses in the case at bar, the work was of benefit, and that opinion appears to us to be supported by the facts in the case. The great weight of the evidence upon the proposition is clearly opposed to the theory of the defendant in error. We regard the conflict, so far as the facts are concerned, as so slight and unimportant that the case does not call for the application of the rule by which an appellate court is guided where a decision upon a question of fact is found to rest upon conflicting evidence. In our judgment the evidence is insufficient to sustain the allegation of forfeiture of the Cleveland lode. But counsel for defendant in error urges that the judgment must be affirmed for the reason that plaintiff in error, the original locator, and applicant for patent, failed to prove citizenship on his part. Proof of citizenship in an adverse suit is required only to enable a party to recover a judgment in his own favor. See Doon v. Tesh, 68 Cal., 43; Rosenthal v. Ives, 2 Idaho, 244; McFeters v. Pierson, 15 Colo., 201; Keeler v. Truman, 15 Colo., 143; Jackson v. Dines, 13 Colo., 90; 1 Lindley on Mines, Sections 233, 234. The absence of such proof may prevent a recovery by the one party, but it does not operate to authorize a judgment, for that reason alone, in favor of his adversary. 1 Lindley, Sec. 234; Billings v. Aspen M. & S. Co., 52 Fed., 250; Manuel v. Wulff, 152 U. S., 505; McCarthy v. Speed, 11 S. Dak., 362. The result of the authorities upon this question is that an alien locator of a mining claim .may, until ‘ ‘ inquest of — 310 — office, ’ ’ hold and dispose of the same in like manner as a citizen. H.is citizenship is subject to question only by the government; but proceedings to obtain patents and adverse suits, brought in connection therewith, are held to have the effect or to be the equivalents of ‘£ inquest of office,” as the government is interested in the outcome of the proceedings or suit; and so by and through the right of the government, as it is said, either party to an adverse suit may question the citizenship of the other. After reviewing the authorities, Mr. Lindley concludes, “that a qualified locator may relocate a claim in the possession of an alien who has not declared his intention to become a citizen, if such relocation may be made _ without force or violence, and prior to the naturalization of the alien. That the relocator would then be in a position to contest the alien’s right to a patent. But that the alien-age of the original locator would not avail the subsequent citizen locator so as to permit the court to award the claim to him for that reason, but the latter would be enabled through the patent proceedings which are the equivalents of ' inquest of office, ’ to have alienage established, and thus,clear the records.” 1 Lindley on Mines, Sec. 234. An objection on the ground of alienage, if sustained, would only defeat the claim of the alien. ‘ ‘ It would not, in any sense, sustain the title of the objector.” Billings v. Aspen M. & S. Co., 52 Fed., 250. The effect of a mere failure of proof of citizenship cannot be greater or more far reaching then an affirmative showing of alienage. The absence of evidence on the question of the citizenship of plaintiff in error, authorized the court to refuse to award a judgment in his favor, but it did not authorize a judgment in favor of defendant in error. It is further contended by counsel that the evidence is not sufficient to justify the court in holding that the location of the Cleveland lode was so distinctly marked as that its boundaries could be readily traced. — 311 — We deem it unnecessary to rehearse all the testimony bearing upon the original location. In regard to marking the boundaries, Mr. Sherlock testified that he was present when the claim was located in 1885, and that the four corners were marked by posts set in the ground, and that each post was marked so as to indicate the particular corner which it represented. The post at the northeast corner being marked “N. E. corner of Cleveland lode,” and the other corner posts having similar information marked upon them. He was' not positive as to the placing of posts on the side lines. Mr. Williams testified that he became acquainted with the claim in 1885, and noticed that the ‘‘posts were up — the corner and side ones.” We think the evidence sufficient; especially so when the length of time is considered during which the locators and their grantees had possession of the property. They had done considerable work upon the claim, and so far as the evidence discloses, had been in undisputed possession until the location of the Dewey lode by defendant in error. Moreover the defendant in error did- not seek by testimony to dispute the sufficiency of the original location. It is questioned in this court apparently for the first time, solely upon the evidence produced by the plaintiff in error. Our conclusion is, that upon the evidence the defendant in error was not entitled to a judgment in his favor, and as such a judgment was rendered, it will be reversed, and the cause remanded for a new trial. Reversed. CorN J., and Knight J., concur.