Beals v. Cone

• Decision Date: 04 June 1900
• Citation: 62 P. 948,27 Colo. 473
• Parties: BEALS v. CONE et al.
• Court: Colorado Supreme Court

62 P. 948

27 Colo. 473

BEALS v. CONE et al.

Supreme Court of Colorado

June 4, 1900

Appeal from district court, El Paso county.

Action by Joseph H. Beals against James J. Cone and others in support of an adverse to an application for patent to a mining claim. From a judgment in favor of defendants, and from an order overruling a motion for a new trial, plaintiff appeals. Affirmed.

Action by appellant, as plaintiff in the court below, as the owner of the Tecumseh lode, in support of his adverse against the application of appellees, as defendants, for patent to that portion of the Ophir lode in conflict with the Tecumseh. From a judgment in favor of defendants, plaintiff appeals. The facts and other data necessary to an understanding of the questions involved and decided will be found in the opinion in connection with the discussion of the errors assigned by appellant.

H. B. Johnson and Ralph W. Smith, for appellant.

Hall, Bryant, Lee, Babbitt & Thomas, for appellees.

GABBERT J.

By way of replication to the answer and counterclaim of appellees appellant interposed (1) what purported to be a plea of res judicata, and (2) a plea of estoppel in pais. By the first it was averred, in effect: That on February 10, 1893, appellees entered the Ophir lode. That thereafter appellant and others filed a protest against such entry, by which it was alleged that no discovery of mineral thereon had been made. That a hearing on such protest was had, which resulted in a finding by the land department of the general government that no discovery had been made on the Ophir; that the discovery shaft thereon was but 25 feet in depth on the 11th day of October, 1893; that the sinking of such shaft was the only work performed by appellees on the Ophir prior to that date. And that on these findings a judgment was entered canceling the entry. By the second plea it was averred: That the appellee J. J. Cone at the hearing above referred to testified, in substance, that the discovery shaft on the Ophir was but 25 feet deep on the 11th day of October, 1893 that no vein had been disclosed thereon at that time; and that no work had been performed on the claim in the year 1893. That, by reason of such testimony, appellant and others interested with him were induced to expend a large sum of money in exploring for mineral in the ground in conflict between the Tecumseh and Ophir lodes, and in working and developing the former. That appellees knew that such expenditure was being made on the faith of the truth of the above statements of appellee Cone, but never contradicted such statements. That if appellees performed any work on the Ophir in the year 1893, prior to the 11th day of October of that year, sunk the shaft to a greater depth than 25 feet, or discovered a vein in such shaft, appellant and those working under him were ignorant of such facts. To each of these pleas a general demurrer was interposed and sustained. This ruling of the trial court is assigned as error. It will be borne in mine that the application of appellees for patent to the ground in controversy, adversed by appellant, is in no manner based upon the proceeding resulting in an entry which was canceled as above pleaded; nor do they in any manner base their rights to the ground in controversy by virtue of such application, or the entry thereunder which was afterwards annulled. The claim of counsel for appellant is that the judgment of the land department is res judicata of the facts established in the proceeding instituted by appellant and others, protesting against such entry. In order to constitute a judgment in one action res judicata in another, it must appear that the quality of the parties to each is the same. Slocum v. De Lizardi, 99 Am.Dec. 740; Railroad Co. v. Commissioners, 12 Kan. 127; Freem. Judgm. § 252; Bouv. Law Dict. tit. 'Res Judicata'; Benz v. Hines, 3 Kan. 390; Lower Latham Ditch Co. v. Louden Irr. Canal Co., 60 P. 629. The judgment rendered by the land department in the matter of the former entry of the land in controversy in no manner settled the rights of the parties to that proceeding to such lands. It merely held that appellees were no entitled to be vested with the fee therein from the general government. The protestants were not parties in interest, because they made no claim to the subject-matter of the controversy, and with respect to that proceeding occupied the position of amici curiae, with the right of showing that appellees had not complied with the requirements of the law relative to obtaining title from the government for mineral lands at the time of their former application. Weeks, Min. Lands, § 96; In re Mt. Pleasant Mine, Copp's U.S. Min. Lands, 222. It is manifest, therefore, that the quality or capacity in which appellant acted in the protest proceedings pleaded is entirely different from the capacity in which he appears in the present action. In order to sufficiently plead an estoppel in pais, based upon statements, it must be averred, among other things, that the statement relied upon to constitute such estoppel was made with the intention that it should be acted upon. Patterson v. Hitchcock, 3 Colo. 533; People v. Brown, 67 Ill. 435; Martin v. Zellerbach, 38 Cal. 300. In the replication interposed by appellant on this subject there is no averment that the statements attributed to the appellee Cone were made by him with the intention of deceiving or misleading appellant or those acting with him, nor is there any allegation that supplies the absence of a direct one to this effect. The demurrer to each plea in the replication was properly sustained.

Numerous errors are assigned on the rulings of the trial court with respect to the admissibility of evidence, some of which are new and important. On the trial appellant offered in evidence the decisions of the department of the interior rendered in the matter of the protest against the former application of appellees for patent on the Ophir lode, together with a notice, directed to them, that a hearing had been ordered upon such protest. Each of these was excluded. These decisions were rendered in the proceedings mentioned in the plea of res judicata, to which reference has already been made. The principal contention between the parties was, upon which of the conflicting lode claims was a discovery of mineral first made? The department, in the protest proceedings, found from the evidence submitted that no discovery of mineral had been made upon the Ophir on the 11th day of October, 1893. Counsel for appellant contend that these decisions were material evidence, because this finding was conclusive upon that question, and that appellees were precluded from showing a discovery on the Ophir prior to that date. A sufficient answer to this proposition should be that, as the judgment rendered in the protest proceedings was not res judicata between the parties to this action, no fact found by the department in those proceedings would be competent to contradict or establish any fact directly in issue in this. A consideration of the nature of an application for patent to mineral lands which is rejected, and the result of the judgment of the department of the interior, which merely holds that the applicant is not entitled to patent, and where the rights of others to the lands embraced in the application are not determined, will demonstrate that no finding of fact made by the department in such case is either conclusive or admissible in evidence in another action, in which the applicant bases no rights to the ground in controversy by virtue of such proceedings. Under the law regulating the issuance of patents to mineral lands, and the rules of the department, certain facts must be established. If not, the application is dismissed. Such a judgment is, in effect, one of nonsuit, and therefore not one upon the merits. Railroad Co. v. Iles, 25 Colo. 19, 53 P. 222. It is no more than a conclusion that in that particular application the applicant has failed to establish the necessary facts to entitle him to a patent, the same as a judgment of nonsuit would be directed in an action at law, where the plaintiff had failed to establish the facts upon which he relied to entitle him to the judgment demanded. The fact that a protest had been filed does not change the rule, when, as in this case, the rights of the protestants were neither involved nor adjudicated. Many authorities are cited by counsel for appellant in which it has been held that the findings of fact made by the department of the interior are conclusive upon the courts. In all these cases the question involved was the authority of the courts to redetermine questions of fact already determined by the department, where parties either based their right upon a muniment of title issued by the government, which had been annulled, or were attempting to show that the facts upon which a patent had been issued were different from those necessarily established before the department, upon which it based its action. This is not the case at bar. Appellees are not asserting any rights to the premises in dispute by virtue of the canceled receiver's receipt, by attempting to show that the findings of the department that no discovery of mineral had been made upon the Ophir at the time of their former application were not justified, but have instituted another proceeding to procure patent, which may be likened to a new action after having suffered judgment of nonsuit, and hence the authorities cited are not in point.

Our attention has not been directed to any case where the question here involved has been directly decided, but we think the rulings of the department of the interior fully sustain our conclusion that the cancellation of a mineral entry only is not res...