Doherty v. Morris

• Decision Date: 27 January 1888
• Citation: 16 P. 911,11 Colo. 12
• Parties: DOHERTY v. MORRIS.
• Court: Colorado Supreme Court

16 P. 911

11 Colo. 12

DOHERTY v. MORRIS.

Supreme Court of Colorado

January 27, 1888

Appeal from district court, Clear Creek county.

'Adverse claim' by Morris, appellee, against Bryan, appellant with whom one Doherty was impleaded.

L. C. Rockwell, for appellant.

Morrison & Fellius and I. N. Smith, for appellee.

ELBERT J.

This action was brought by Morris in support of an adverse claim to a one-third interest in the Great Republican lode, for which Doherty had applied for patent. Doherty relocated the property as an abandoned lode. His claim was that the assessment work for the year 1881 had not been done by the former owners, Morris, Bryan, and Alexander. This was the principal question presented upon the trial below, and upon its determination in his favor depended the plaintiff's right to recover. Prior to the relocation, Morris owned a one-third interest in the lode, Bryan seven-twelfths Alexander one-twelfth. Alexander was a non-resident, and there is no pretense that he did the assessment work. Nor does Morris claim to have done it, but testifies that he arranged with and trusted to his co-tenant Bryan to have it done, agreeing to pay his proportion of the cost, whatever it should be. Bryan denies any such arrangement, and testifies that the work was not done for that year. Upon this point the court correctly instructed the jury 'that any neglect to do required annual work is not excused by the failure of any supposed or actual promise of one or more joint mine-owners to do the work. A valid location for such neglect is not affected by any such understanding or misunderstanding between the original owners.'

There was an effort on the part of the plaintiff to show that the work done by Doherty on the lode was commenced by him under contract with Bryan as annual assessment work but afterwards claimed by him as relocation work. The evidence in this behalf, however, is extremely uncertain and indefinite in its character, and it is doubtful if it can be said to be in conflict with the positive testimony of both Bryan and Doherty to the effect that there never was any such contract made, or work done, as alleged. A certain road had been built by one Vandenburg to another mine near and adjoining the Great Republican, and it was claimed by Morris that there was an arrangement by which the owners of the Great Republican were to pay their proportion of the cost of this road, as annual...