Driscoll v. Dunwoody

Bach, J. This action was brought in the justice’s court of Silver Bow County for the purpose of recovering two tons of silver ore, or the value thereof, alleged to have been taken by the defendants from the Lamb lode mining claim; the plaintiffs claiming ownership and right of possession of the ore. The defendants denied the existence of any such mining claim as the Lamb lode mining claim, and denied that the ore was ever taken from said claim. The answer was not verified. The case was taken by appeal to the district court of Silver Bow County, and trial was had there. The plaintiffs proved a possessory right, by occupation, to the Lamb lode; introduced a location notice for the sole purpose of showing the extent of their right by occupancy; and introduced evidence tending to show that the ore sued for was taken by defendants from within these boundaries. The value of the ore is admitted to be $241. The defendants offered evidence tending to show that the apex of the vein from which the ore was taken is not within the boundaries of the Lamb lode, and that said apex is within either the Cinnamon Bear claim or the Wabash claim, — they being claims adjacent to the Lamb claim. The plaintiffs objected to the admission of this evidence, for the reason that it involved the question of title to real estate. The position of the plain [399] tiffs is, that in the district court the issue must remain as in the justice’s court; that defendants’ answer not being verified, it raised no question of title to land; and that if defendants wished to raise an issue on that point, the proper way was to verify the answer, and then have the cause certified by the justice to the district court under section 779, Code Civ. Proc. (Comp. Stats.). The admission of this evidence is one of the alleged errors. In rebuttal, the plaintiffs offered to show that the said apex was within the boundaries of the Lamb lode, and that said vein from which said ore was taken had no apex outside of the Lamb lode. The court refused to allow this evidence, to which ruling the plaintiffs duly excepted; and this refusal is another of the alleged errors. The position of the defendants is, that in the justice’s court the plaintiffs could not prove their case without proving their title to the real estate; that the plaintiffs should have had the case certified to the district court under section 779, above cited; and the case being in the district court by appeal, and not by the certificate, the issue of title could not be tried in the district court, because it could not have been tried in the justice’s court. Is the title to real estate necessarily involved in this action? We think not. Defendants do not deny plaintiffs’ right by occupancy to the Lamb lode; the plaintiffs do not deny the title of the respective owners of the Wabash and Cinnamon Bear lodes. Thus far there is no question of title involved. The real and only issue is, Did the ore belong to the Lamb lode or to one of the other lodes? It is a question of boundary, and not a question of title. To illustrate: A sues B in replevin to recover a tree which A alleges B cut from certain premises belonging to A. B admits the cutting • and taking away, but alleges that the tree grew upon other real estate than that referred to and owned by A; that in fact the ground from which the tree was taken belonged to C, [400] and was adjacent to A’s ground. Surely there is no issue of title to real estate. B does not deny that A owns the ground that A claims to own; A does not deny the title of C. But to take an example more closely analogous: A owns a patented mining claim. B owns another adjacent to A’s. B sues A for the value of ore taken from a vein, the apex of which, B alleges, is within his claim, although the vein dips within the ground of A. On the other hand, A asserts that the apex, as well as the vein, is within his land. In such an action, can it be said that title to real estate is in issue ? A cannot and does not deny the validity of B’s patent; B cannot and does not controvert the title of A. Is it not merely a question of location or boundary ? So; in the case at bar, the evidence introduced by defendants does not deny plaintiffs’ title to the land which they claim; and that offered by plaintiffs does not deny the title of others to the Wabash and Cinnamon Bear lodes. The only question in the case then is, To which, if any, of these three claims does the vein belong ? Plaintiffs do not claim the Lamb lode by reason of the apex of said vein being within the boundary lines of said lode. They claim the Lamb lode by right of occupancy, and they allege that the ore is theirs because it was taken from a vein within that claim. The defendants likewise assert that the vein belongs to the other claims, because they assert that the apex is within those claims. Nowhere' in the record does it appear that the vein in question is the vein upon which the “ discovery ” of any of these claims is based. The plaintiffs having established their right by occupancy, which was a good title as against a trespasser, to the surface, of the Lamb lode, they had a prima facie right to all ores within the vertical planes of the boundary lines. Mining Co. v. Fitzgerald, 4 Mor. Min. Rep. 381. To meet this prima facie proof, the defendants were entitled to show that the apex of the vein was out [401] side of the Lamb lode, and within the boundaries of other located claims; not for the purpose of contesting the title of plaintiffs to their mining claim, but for the purpose of showing that the ore was taken from ground to which the plaintiffs did not assert title, and which did belong to others. So in the admission of evidence to that effect we find no error. But surely the plaintiffs ■were entitled to show in rebuttal that the apex of the vein was within the boundary lines of the land which they claimed by right of occupation; and this they attempted to do. Counsel for the defendants objected to the question put for that purpose; the ground of objection being that “ it was not proper rebuttal.” We think that the offer was proper; it was rebuttal testimony. The exclusion of this testimony was error; not that the offer tended to prove title to real estate concerning which the title was in issue, but because it tended to prove that the ore taken belonged to a mining claim, title to which wras in no way disputed. We do not agree with the plaintiffs in their position that the defendants could not show title to the ore in a third person; neither do the authorities which they cite sustain their position. The authorities cited are to the effect that where the answer is non copit or non detinet only, the defendant cannot show title in a third party; for he does not deny the title of the plaintiff. Under our system of pleading, there must be a specific denial of each material allegation. Therefore, if the defendants merely deny the taking, their failure to deny plaintiffs’ ownership is an admission of that ownership; but where the answer denies plaintiffs’ title, as well as the taking and detaining, then defendants may show title in a third person, as that would tend to defeat plaintiffs’ right to recover. In Woodworth v. Knowlton, 22 Cal. 169, it was held that the answer having denied plaintiffs’ title, and having asserted title in a third party, no replication was [402] necessary; for the assertion of ownership in a third party was “but another form of denial of plaintiffs’ ownership and right of possession set forth in the complaint.” The judgment and order appealed from are reversed, with costs, and the cause is remanded for a new trial. Judgment r versed. McConnell, O. J., and McLeary, J., coneur.