Darger v. Lesieur

• Decision Date: 06 June 1892
• Citation: 30 P. 363,8 Utah 160
• Court: Utah Supreme Court
• Parties: B. DARGER AND OTHERS, RESPONDENTS, v. ST.V. LESIEUR, APPELLANT

30 P. 363

8 Utah 160

B. DARGER AND OTHERS, RESPONDENTS, v. ST.V. LESIEUR, APPELLANT

Supreme Court of Utah

June 6, 1892

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial.

The defendant's answer denied the ouster and denied that he had ever entered into the possession of the property described in the complaint, or that he ever withheld the possession thereof from the plaintiffs. The charge of the court to the jury was as follows:

"Under the proof in this case, the only question to be submitted to the jury is, whether the defendant is in possession or is making any claim to the property of these plaintiffs. The defendant denies possession. If he is not in possession of this ground and sets up no claim to it, the plaintiff had no business to sue him and bring him into court and make him pay costs. So, the question of fact for you to determine is whether the defendant claims the same ground that the plaintiffs claim. If he claims the same ground that the plaintiffs claim, then your verdict should be against the defendant. In your verdict you must describe the claims, so as to determine whether he is entitled to recover. Retire with your bailiff."

Subsequently the jury returned into court and asked for further instructions and the court repeated the instruction already given.

Reversed.

Messrs Brown and Henderson, for the appellant.

Messrs Kellogg and Corfman, for the respondents.

ANDERSON, J. ZANE, C. J., and MINER, J., concurred.

OPINION

ANDERSON, J.:

The plaintiffs brought this action against the defendant to recover the possession of six mining claims. The complaint alleged that the plaintiffs discovered mineral in place in each of the claims, and made the locations in June, 1888 that they erected a monument on each claim near the point of discovery, and placed thereon a notice of location, giving date of location, names of locations, description of the claim, and the names of the locators; that measurements were made in accordance with the notice and posts erected at each corner, as required by law; that in July, 1888, a copy of each notice of location was recorded in the records of Utah county, the county in which the claims are situated; that the claims are contiguous to each other; that the assessment work for the year 1889 was done, and that in 1890 plaintiffs began to do the work for that year, but were wrongfully ousted from the possession of the claims by the defendant, who continued to hold possession of them thereafter; that the claims are on unsurveyed public lands of the United States, and not within any mining district. One of the claims, called the "Mary Bell Lode," in the complaint is described as "situated about five miles from the Denver & Rio Grande Railroad track, up what is known as 'Tie Canyon,' near the head of the right-hand fork, in Utah county, Utah Territory, and said claim extends 300 feet on each side of the center of location, 400 feet running west, and 1,100 feet running east, from the monument thereon." The description of each of the other claims was exactly the same, except the name of the claim, and the number of feet it extended east and west from point of discovery. The complaint prayed for restitution of the claims and for damages. The answer of the defendant denied specifically each allegation of the complaint, and alleged that the defendant was the owner and in possession and entitled to the possession of six mining claims, named, respectively, the Le Sieur lode No. 1 to the Le Sieur lode No. 6 inclusive, "situated four miles due north of the Rio Grande Western Railway track, at the point where the said railway passes the mouth of Tie Fork of Spanish Fork canyon, and also situated north, 10 deg. E., and distant 10.14 miles from the house on Olsen's ranch, which is in Tie Fork canyon;" that said claims were duly located in accordance with the laws of the United States and of the Territory of Utah upon unoccupied and unsurveyed public lands of the United States, and comprise 20 acres each, or 120 acres in the aggregate. The case was tried to the court and jury, and a verdict and judgment were rendered in favor of the plaintiffs, and the defendant brings...