Armstrong v. Lower

• Decision Date: 01 April 1883
• Citation: 6 Colo. 581
• Parties: ARMSTRONG ET AL. v. LOWER ET AL.
• Court: Colorado Supreme Court

6 Colo. 581

ARMSTRONG ET AL. v. LOWER ET AL.

Supreme Court of Colorado

April, 1883

Appeal from District Court of Custer County.

Messrs MONTGOMERY and RISING and Mr. JOHN W. WARNER, for appellant.

Mr HUGH BUTLER, for appellee.

UPON a petition for rehearing the following opinion was rendered by

HELM J.

This application has been urged with more than ordinary skill and ability; and we have sought to give the questions presented the careful consideration which the industry of counsel and importance of the case merit.

We recognized in our opinion the right of petitioners to recover, at the former trial of this case, upon proof of prior actual possession of the premises in dispute.

Under the federal and state statutes, two kinds of possession of mining ground are recognized: First, where the miner, by virtue of work and improvements upon a tract of mineral land and occupancy thereof, holds the same independent of location statutes against one having no better right; secondly, where after discovering a vein, the miner undertakes to avail himself of the benefits of the location statutes. The law gives him possession of his entire claim as marked upon the surface for the period of ninety days from the date of discovery, provided he post his discovery notice, and, within sixty days next after such date, sink his discovery shaft. Having perfected his location by a full compliance with the requirements of the statutes, his possession of the entire claim remains until he does or omits to do something which in law amounts to an abandonment thereof.

But when he has failed within the proper time to comply with the location statutes, we do not understand that he can, by virtue of actual possession of one hundred feet of the lode, hold the entire one thousand five hundred feet thereof, as against one who enters after such failure, and acquires rights in the territory before he has perfected his location. By such failure he forfeits all right to any benefit from his partial compliance with the statutes, except as he may be aided thereby in his proof of actual possession; the remaining one thousand four hundred feet of his lode are open to exploration and location as though he had never attempted to perfect a statutory location thereon. To hold otherwise would largely do away with the usefulness of location statutes, for their principal office is to protect him, prior to patent, in the exclusive use and enjoyment of his lode and surface ground to the full extent of his claim.

These views do not conflict with the authorities cited. The learned judge, in Haines v. Equator Mining and Smelting Co. 2 Col. Law Reporter, 64, does not pass upon this question; he expressly distinguishes between the position of a purchaser and that of the locator of a mining claim, and confines his opinion to the former. In English v. Johnson, 17 Cal. 108, the court limit the views expressed to cases where no abandonment results from a failure to comply with the mining rules or location statutes.

But a small part of the alleged Swallow Tail relocation is in dispute in this action. And the only acts of possession disclosed in the evidence of this disputed territory by petitioners is the erecting of their discovery stake at the 'old shaft,' and the posting of a notice stating where the location work was being done. This we held and still hold insufficient to show such actual possession of said territory as would enable them to recover the same in this action. Being unable to recover upon their actual possession, they were remitted to their proof of a valid relocation.

The construction of their tunnel upon another part of the claim could not avail them unless their relocation was good; if it were valid, they would hold possession of the disputed territory by virtue thereof; if it were not valid, actual possession was required, which they did not have.

Counsel for appellees in their original brief quoted from Highland Chief v. Evans, 1 Col. Law Reporter, 217 as follows: 'On the public domain of the United States a miner may hold the...