Drummond v. Long

• Decision Date: 04 March 1887
• Citation: 9 Colo. 538,13 P. 543
• Parties: DRUMMOND and others v. LONG and others, Adm'rs, etc.
• Court: Colorado Supreme Court

13 P. 543

9 Colo. 538

DRUMMOND and others v. LONG and others, Adm'rs, etc.

Supreme Court of Colorado

March 4, 1887

Error to district court, Ouray county.

Robert Long, deceased, the original defendant below, made application at the proper land-office for a patent to the Portland lode. James A. Drummond and others, plaintiffs below, owners of the Amphitheatre and Mountain Bell lodes filed an adverse claim, and brought this suit in pursuance thereof. The Portland lode was located in 1875. The Amphitheatre and Mountain Bell lodes were located in 1878 and embrace within their boundaries certain of the territory included in the Portland location. Upon the trial the defendant introduced in evidence the following certificate of location:

'Know all men by these presents, that we, R. F. Long and M. V Cutler, of the county of La Plata and territory of Colorado claim, by right of discovery and location, 1,500 feet, linear and horizontal measurement, on the Portland lode, along the vein thereof, with all its dips, variations, and angles, together with 150 feet in width on each side of the middle of said vein at the surface, and all veins, lodes, ledges, and surface ground within the lines of said claim; 1,050 feet on said lode running south-east from the center of discovery shaft, and 450 feet running north-west from center of discovery shaft, said discovery shaft being situate upon said lode, within the lines of said claim, in Uncompahgre mining district, county of La Plata, territory of Colorado, on the south-west side of Mount Hardin, in Portland gulch, about 1,500 feet north of the Hawk Eye lode. Said Portland lode was located on the thirtieth day of August, 1875. Date of certificate, October 4, 1875.

[Signed]

'R. F. LONG.

'M. V. CUTLER.'

The jury found for the defendant. Writ of error to the supreme court.

L. B. Wheat, for plaintiffs in error.

Markham, Patterson & Thomas, for defendants in error.

ELBERT J.

The certificate of location of the Portland lode was admitted in evidence on the trial in the court below, over the objection of the plaintiffs that it did not comply with the requirements of section 2324 of the Revised Statutes of the United States, in that it did not contain such a description of the claim located, by reference to some 'natural object or permanent monument,' as would identify it. Section 2399, Gen. St. 722, provides that the discoverer of the lode shall record his claim in the office of the recorder of the county, and section 2400 requires that the certificate of location thus recorded shall contain, among other things such a description as shall identify the claim with reasonable certainty. In this respect the requirements of the federal and state law may be said to be substantially the same. That degree of certainty with which the final survey for a patent fixes the locus and boundaries of the subject-matter of the grant is not required in the original location to be made by the dicoverer of the lode, nor would it be practicable without the aid of a professional surveyor. While this is true, fixing the locus of the ground sought to be appropriated, in the first instance, with reasonable certainty, by reference to natural or artificial monuments, is practicable, and is of the first importance to prevent frauds and mistakes. The government should be able to identify the premises originally located as the premises sought to be patented. Other parties dealing with and seeking to appropriate neighboring territory should be able to identify the claim located, to the end that they may proceed with their own locations, without the danger of intruding upon others, or of having the locations of others swung or shifted upon their own. Mining litigation...