Cheesman v. Hart

• Citation: 42 F. 98
• Parties: CHESSMAN et al. v. HART et al.
• Decision Date: 28 April 1890
• Court: U.S. District Court — District of Colorado

42 F. 98

CHESSMAN et al. v. HART et al.

United States Circuit Court, D. Colorado.

April 28, 1890

C. J Hughes, for plaintiffs.

B. F Montgomery, A. S. Frost, and C. C. Parsons, for defendants.

PHILIPS J.

I have examined the grounds for new trial herein as fully as my limited time would permit, and can give buy a cursory review of the many questions involved. During the progress of the trial, extending over a period of two weeks, with access to the statutes and decisions of the courts in similar mining controversies, aided by the daily discussions of able counsel on both sides, the court learned all it could, and its conclusions on the law are expressed, as fully as seemed justifiable, in the charge to the jury reported in 40 F. 787. Such questions were new to the court, but it labored to understand so much of the facts and the law as would enable it to present the case fairly to the jury. Some of these questions were embarrassing, and are by no means free from doubt. The evidence impressed my mind, by a great preponderance, as tending to establish the existence of an outcrop of a lode of mineral within the surface lines of the Champion claim, and that this vein was, in contemplation of the statute, a continuous one to the point of the alleged trespass.

The question of fact and law which has most perplexed the mind of the court is as to the parallelism of the defendants' claims. The parallelism of the end lines of the surveys and the parallelism of the side lines to the actual strike of the outcrop were left by the evidence in such condition as to render the determination of this fact peculiarly a matter for the jury; and I tried to so frame the charge as to leave them uninfluenced by any impressions of the court respecting the question of fact.

As to the point so much pressed by plaintiffs' counsel, that the outcrop of the vein ran so zigzag or serpentine as to make it the duty of the court to tell the jury that, as matter of law, it was not parallel to the side lines of defendants' claim, my impression at the trial was, and on further consideration my opinion is, that it was not in the mind of congress, in framing the section of the statute in question, that, where the strike of the vein passes perpendicularly through the end lines, the mere meanderings of the outcrop between the end lines (caused by the surface influences of slides and debris on the mountain sides, as the evidence impressed me was the fact in this case) should absolutely control the question of parallelism; but rather that the spirit and reason of the statute require that the settled and permanent course of the vein on its strike, as nature fixed it, should control; of course such zigzagging being restricted to slight variations from the general direction and trend of the strike. The illustration furnished by the expert witness Boehmer in the scored-out apple quite aptly demonstrated the principle of law and fact. It was with this thought in mind that I employed in the charge the term 'substantially parallel,' assigned for error in the motion for new trail. It ought not to be that the court should apply to these locations the most exact mathematical precision. The law, being designed for the encouragement and benefit of miners, should be liberally construed, and should look to substance rather than shadow; and her, as elsewhere, should be administered on lines of obvious common sense. So long as the right of trial by jury stands, the court should be allowed to assume that the jury may understand the purport of words and terms which by their common use have acquired a recognized meaning. The term 'substantially' means 'really, truly, essentially, competently.' In the connection in which it was used in the charge the jury could but understand that the variation from parallelism must be substantial, material, and real; that a very slight variation from a mathematical line was not of substance. I am free to make this confession, that neither at the trial nor after reference to my minutes did or do I obtain from the evidence a very satisfactory impression either as to the precise shape in which the original survey of the Champion claim, or the relocation of 1882, left it. There was an amended location in 1886. Whether or not the lines were substantially parallel under all the evidence, (much of it conflicting,) together with the aid of the maps and diagrams before them, I thought was peculiarly a question for the jury. Following the decisions of the supreme court of Colorado, the charge told the jury that 'such amendments or relocations, when made, had relation back to the time of the original location; and these plaintiffs are in no position in this controversy to question such amendments or relocations. ' The plaintiffs had the full benefit of what counsel so urgently contends for respecting the end lines intersecting the actual outcrop in the following declaration of law, drawn by himself:

'The court further charges the jury, at the instance of the plaintiffs, that end lines, as designated in the location certificate, are not necessarily in law the end lines, unless they actually cross the actual outcrop of the vein.'

This is certainly as much as, if not more than, they could claim, in view of the language of the federal statute, (section 2322:)

'Their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes, drawn downward * * * through the end lines of their locations.'

In addition to which the jury were further charged that--

'The statute of the United States also requires that the end lines of the claim should be parallel with each other, and, in asserting a right to follow the vein on its dip without the side lines of their location into plaintiffs' location, defendants must show the outcrop or apex of such vein to be in their own location throughout the ground in controversy, being the extent of the locations of plaintiffs and defendants, parallel to each other.'

It was insisted at the trial, and is reurged forcibly in the motion for a new trial, that the court was in error in holding, as stated in the charge, that 'in considering this issue (of parallelism) you will disregard the fact that the south end of the Champion claim extends beyond or is intercepted by the Pacific survey. ' The contention of counsel, reduced to its essence, is that, whenever a location is surveyed and certified is intercepted by another valid claim going through it perpendicularly or obliquely, in the following form: (Image Omitted)

-- then the end lines of the location are to be determined by the lines A B and E F. The said statute allows to the locator of any lode claim a length of 1,500 feet along the vein. It has been the custom to obtain this extent by locating over and across an intersecting claim, and in asserting the right of length the intersecting claim of course is excluded.

The construction contended for by plaintiffs would lead to this: that every time there was patented an intersecting slice through a location, although it left to the locator on either side of the patented strip unchallenged ground, the end lines to which are parallel, he must readjust his his end lines so as to obtain his parallelogram without any interruption between the end lines; and if, in the mean time, between the original location and the amendment a lateral contiguous location had passed to patent, the contention of counsel is that the extralateral right to pursue the outcropping vein is gone irrevocably; and that even the doctrine of relation, referring back to the original entry, would not apply to save the right. I do not understand that such has been the recognized custom among miners, nor do I believe it executes the will of the statute. So in respect to the Belle of the East claim. It is true that the evidence shows that after the location of the Widow McCree claim the Belle of the East claimed that the north end of the former conflicted with the prior right of the latter, and so it was adjudged. Thereafter, and prior to the alleged trespass, this controversy was ended by the Belle of the East quitclaiming to the defendants. There was no interruption in the possession of the disputed territory occupied by the Widow McCree claim. Both prior and subsequent to that controversy the evidence tended to show the defendants had held and operated as one claim and system of development the Champion group, including the Widow McCree claim, as originally surveyed. The parallelism of the end lines of the Widow McCree claim was not practically disturbed. It seems to me that it would hew to pieces on the sharp edge of merest technicality defendants' apex rights, which they are prosecuting, by looking only at a fragment of the case instead of its essence in the entirety. But little question can be made that when defendants, as claimants of the Champion group, ask for a patent, it will be granted to cover the extent of the original Widow McCree location.

Severe criticism is made of that portion of the charge respecting the assault made by plaintiffs upon the discovery location...