Collins v. Bailey

• Decision Date: 08 April 1912
• Citation: 22 Colo.App. 149,125 P. 543
• Parties: COLLINS v. BAILEY et al.
• Court: Colorado Court of Appeals

125 P. 543

22 Colo.App. 149

COLLINS v. BAILEY et al.

Court of Appeals of Colorado

April 8, 1912

Rehearing Denied June 10, 1912

Appeal from District Court, Eagle County; Chas. Cavender, Judge.

Action by Daniel Collins against John W. Bailey and others. Judgment for defendants, and plaintiff appeals. Reversed.

M.B Carpenter, of Denver, for appellant.

SCOTT P.J.

On the 25th day of January, 1907, the plaintiff in this case filed his amended complaint in the district court of Eagle county, alleging, substantially, that on the 1st day of September, 1906, he was, and ever since and hitherto has been, the owner in fee simple of the Australian the Shamrock, and the Hecla lode mining claims situated in the Holy Cross mining district in Eagle county; that he claims the right to occupy and possess said premises, and is entitled to the possession thereof, by a full compliance with the local laws and rules of said mining district, the laws of the state of Colorado, and by patents from the United States and, further, that the defendant the French Mountain Mining Company, and the defendants John W. Bailey, W.B. Brown, and Edward Brown, on or about the 1st day of November, 1906, wrongfully entered into said claims, and have ever since unlawfully held possession of the same, and have been extracting therefrom, as plaintiff is informed and believes, ores of the value of $100,000. The prayer was for recovery of possession of the several lode mining claims, for damages, and for costs of suit. To this complaint there were filed the separate answers of the defendants; but all of these were similar and alleged, in substance, that, as to whether or not the plaintiff was the owner of the claims mentioned in the complaint, defendants had not and could not obtain sufficient knowledge or information upon which to base a belief, and deny that on November 1, 1906, or at any other time, the defendants, or any of them, wrongfully or otherwise entered upon the said claims, or any of them, or at said date or since, or at any time, have wrongfully held possession thereof, and deny that said defendants, or any of them, have extracted ore therefrom of the value of any sum whatsoever.

Upon this complaint and these separate answers the case was tried to a jury which returned a verdict in favor of the defendants in the following words: "We, the jury, find the issues herein joined for the defendants, and that the defendants W.B. Brown and Edward Brown are the owners, and the defendant the French Mountain Mining Company is the lessee, and entitled to the possession, of the vein or lode opened and developed in the Hecla and Shamrock lode claims by what is known as the lower tunnel."

Pending a hearing on a motion for a new trial, the court permitted the defendants, over the objection of plaintiff, to file a joint amended answer in which it was alleged, among other things, that the defendants further answering said complaint, and by way of counterclaim, allege that, at all times mentioned in plaintiff's complaint, the defendants W.B. Brown and Edward Brown were, and still are, the owners in fee simple of the Grand Trunk lode mining claim, situate in the Holy Cross mining district, state of Colorado; that on or about the ______ day of August, 1904, they gave or extended a lease of, or bond upon, said claim to the defendant John W. Bailey, who thereafter and in May, 1906, assigned said lease and bond to the defendant the French Mountain Mining Company, which, ever since said time, has been in the actual possession and occupancy of said lode and vein; that said Grand Trunk lode lies parallel and adjacent to the Australian lode claim; that the said Australian, Hecla, and Shamrock claims lie parallel to each other in one body with end lines practically upon one line; that the said defendant the French Mountain Mining Company cut and intersected, at a point within the exterior sidelines of the said Australian, Shamrock, and Hecla group, the Grand Trunk lode and the vein thereof; that said vein so drifted upon by said company is the vein in controversy in this action and is the only vein from which the defendants have extracted or taken out any ore in said tunnel. Defendants further allege that said vein is the Grand Trunk vein and has been disclosed and discovered along, upon, and in the said Grand Trunk lode, and that said vein throughout its entire depth is the property of the defendants as owners or lessees of the Grand Trunk vein, and as being a vein apexing upon and within the said Grand Trunk lode. It was further alleged that the plaintiff has no right, title, or interest whatever in or to said lode, and that, although the vein was cut at a point within the sidelines of the Australian, Shamrock, and Hecla group extended downwards vertically, the said vein was so cut because in its dip it crossed the vertical sidelines of the Australian lode, and that said vein in its dip extended into the ground beneath the surface of the said Australian and Shamrock claims, but continues at all times to the Grand Trunk vein apexing upon the Grand Trunk lode and belonging thereto, and that said vein where the same is cut and developed in said tunnel is the identical vein located, opened up, and developed on the surface of the Grand Trunk lode mining claim. Further, defendants disclaimed any right or title to said Australian, Shamrock, and Hecla claims except their right and title to the Grand Trunk vein so far as the same may lie beneath the surface boundaries of said Australian, Shamrock, and Hecla claims between vertical planes drawn downward through the endlines of said Grand Trunk lode so continued in their own direction that such planes will intersect such exterior parts of such vein or lode, and their right to remove ore and other material from their said Grand Trunk lode. The defendants prayed that the defendants W.B. Brown and Edward Brown be adjudged to be the owners, and the defendant the French Mountain Mining Company be adjudged to be the lessee and entitled to the possession, of the alleged Grand Trunk lode or vein, cut within the sidelines of plaintiff's lode claims.

After this answer was permitted to be filed, the court overruled plaintiff's motion for a new trial and rendered judgment, in substance, that the defendants are entitled to the possession of the vein or lode in dispute in this action opened up and disclosed within the sidelines of the Hecla and Shamrock claims as a vein or lode apexing within the lines of the Grand Trunk lode and a part thereof, the defendants W.B. Brown and Edward Brown being so entitled as the owners thereof, and that plaintiff has no right, title, or interest therein whatever. It was further adjudged that said vein is in fact the Grand Trunk vein belonging to and having its apex upon the Grand Trunk lode, and that the title, rights, and interests of the defendants are hereby quieted and confirmed as against the said plaintiff and all persons claiming under him, and that said plaintiff, his agents, servants, and attorneys, are hereby enjoined and restrained from asserting or claiming any right, title, or interest in said vein, or in any ore taken from said vein, and from in any manner interfering with said defendants or their heirs or assigns, or any of them, in their working of said vein or lode upon the dip thereof, or in the extraction, treatment, sale, or disposal of ore therefrom, unless it shall hereafter be shown that the apex of said vein departs from the Grand Trunk claim, in which event the plaintiff shall have leave to apply for a modification of this order and decree to the extent owned by such departure.

The case was thereupon appealed to the Supreme Court and is now before this court for review. Before the case was submitted to the jury, plaintiff moved for a directed verdict upon the ground that defendants had not proved any continuous vein or body of ore from the ground of defendants into the patented ground of plaintiff, within the meaning of the acts of Congress, and that the continuity and dip were not established by competent or any testimony.

The following instruction is likewise complained of: "The jury are instructed that, in determining whether a vein is continuous in its downward course, it is not necessary that the vein should be opened up or disclosed for the entire distance; but you must take into consideration all the facts shown as to the dip or incline of the vein, its geological and mineral character, and of the walls, and from the whole evidence decide whether it is the same vein in fact."

It was agreed that plaintiff was the owner of the Australian, the Shamrock, and the Hecla lodes, and that the defendants were the owners and lessees of the Grand Trunk lode; that the ore being removed and the workings in dispute are within the lines of the Hecla, and between which and the Grand Trunk lie the Shamrock and the Australian, is likewise admitted. So that the claim of the defendants in this case arises solely upon their contention that the vein so being worked in the Hecla apexes in the Grand Trunk. The errors assigned, and which seem necessary to consider, are: (a) The refusal of the court to direct a verdict for the plaintiff; (b) the order of the court allowing defendants to file an amended answer to conform to the proof; (c) the giving of the instruction to the jury heretofore set out, over the objection of the plaintiff.

It will be seen that the answer of the defendants upon which the case was tried was simply the denial of ownership and the right to possession by plaintiff of the lode claims set out in the complaint; while the amended answer, permitted to be filed after verdict was returned, set up an affirmative claim to the vein, admitted to be within the plaintiff's ground by...