Becker v. Pugh

• Decision Date: 15 February 1892
• Parties: BECKER v. PUGH et al.
• Court: Colorado Supreme Court

29 P. 173

17 Colo. 243

BECKER v. PUGH et al.

Supreme Court of Colorado

February 15, 1892

Appeal from district court, Gilpin county.

This was an action brought by Ulysses Pugh, De Grass Salisbury and Edward S. Blake against Theodore H. Becker, to secure the determination of the title to certain mining property. From a judgment for plaintiffs, defendant appeals. Affirmed.

L C. Rockwell, for appellant.

Teller & Orahood, for appellees.

HAYT C.J.

This case has been tried three times. Three juries have decided that appellees, Ulysses Pugh et al., plaintiffs below, have a right to the mining property in controversy; and upon each of these verdicts the court entered judgment awarding them the property. The first of these judgments was reversed by this court. Becker v. Pugh, 9 Colo. 589, 13 P. 906. The second was set aside and a new trial granted under the statute, upon appellant paying the costs. This appeal is taken from the third judgment.

If appellant, Becker, had any title to the ground in controversy, it would seem that he ought to have established such title upon the last trial. That he did not do so is admitted by his counsel. In his abstract of record, he says that, 'inasmuch as the defendant does not claim he would be entitled to the verdict on the testimony, the balance of the testimony in the record, so far as the defendant's case is concerned, is not abstracted.' The evidence introduced is not only insufficient to show a right of recovery in appellant, Becker, when considered by itself, but if viewed in connection with the evidence offered and rejected the result is the same. Under these circumstances, he may protest against the issuance of a patent to appellees, but his right to contest under the United States Statutes may well be doubted. The act of congress providing for the trial in the courts for this and similar cases provides, in case neither party establishes title to the premises in controversy, the jury shall so find, and judgment shall be entered accordingly. Rev. St. § 2326. Under this act, it is clear that neither party is entitled to a verdict or judgment unless his title to the ground in controversy be established. Becker v. Pugh, supra. We will therefore examine the record and evidence for the purpose of ascertaining whether or not appellees have shown sufficient title to the premises in controversy to enable them to procure a patent therefor from the government.

The judgment was reversed upon the former appeal because there was no proof concerning the erection of stakes anywhere on the claim. This proof was supplied on the last trial by the testimony of Mr. Orahood. This witness testified that he was on the ground with Mr. Pugh, one of the locators of the claim, as early as the month of April, 1862. He says that the vein had then been struck, and that the shaft was down from 10 to 15 feet, and that afterwards it was sunk to the depth of 20 or 30 feet, and that still later the lode was worked by an open cut or adit running in on the vein. The witness, further testifying, says that at the discovery shaft there was a sign or notice, made from a piece of a fruit box, with the name of the lode, the name of the locators, and the date of the discovery. At the westerly end there was a stake that was supposed to be on the vein, and also one at the east end. The witness also testifies that, at the time mentioned, he saw other stakes upon the property; but whether they were Mr. Pugh's stakes, or whether put there by him or not, witness was unable to state. He says that the stakes were such as were generally used in those days for claim stakes. We think, under the circumstances, this testimony is sufficient to show that the claim was then properly staked. It is to be remembered that the witness was testifying from recollection of matters that occurred 26 years before. After such a lapse of time, more definite testimony than this should certainly not be required. The instances would indeed be rare where after the lapse of a quarter of a century the proof of the original location could be made more fully than was done in this case. In addition to the staking of the claim and the sinking of the discovery shaft, which disclosed a well-defined vein of mineral-bearing quartz, the evidence shows that a location certificate was duly filed and recorded, and that more than the annual labor upon this claim was performed each...