Duncan v. Fulton

• Decision Date: 14 May 1900
• Parties: DUNCAN v. FULTON et al.
• Court: Colorado Court of Appeals

61 P. 244

15 Colo.App. 140

DUNCAN v. FULTON et al.

Court of Appeals of Colorado

May 14, 1900

Appeal from district court, Boulder county.

Action by Alice I. Fulton and others against Elcena Duncan. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Fulton and her co-partners filed an adverse to Duncan's application for a patent to the Sampson lode which is located in Boulder county. To support it, they brought suit, set up their ownership of the Rainbow lode in the same mining district, and alleged an occupancy and a right of possession. We shall assume, since it is in no manner questioned, a valid discovery of mineral, a legal location, and a sufficient record of the Rainbow lode. It must not be assumed on the trial that we decide any of these matters. It has not been necessary to determine the adequacy of the plaintiffs' proof, or the legality of their title. Both parties concede it, and the whole case turns on the direction to the jury to find a verdict for the plaintiffs. When Duncan came to his proof, he offered the original location certificate of the Sampson lode, then known as the "Comstock," and the additional certificate of 1891. Since the whole case turns on the rejection of these certificates and their legal sufficiency, either separately or together, we quote them. The first certificate is:

"Know all men by these presents, that I, L.D. Chase, of the county of Boulder, in the state of Colorado, claim by right of discovery and location 1,500 feet linear and horizontal measurement on the Comstock lode along the vein thereof, with all its dips, variations, and angles together with 75 feet on each side of the middle of said vein at the surface, and all veins, lodes, ledges, deposits, and surface ground within the lines of said claim 1,400 feet running west from the center of the discovery shaft, and 100 feet running east from said center of discovery shaft. Said claim is situate in the Ward mining district, county of Boulder, and state of Colorado, and is bounded and described as follows: Beginning at the northeast corner post No. 1, and running due west 750 feet to the N. center side-line post No 2; thence on the same course 750 feet to the N.W. corner post No. 3; thence due south 150 feet to S.W. cor. post No. 4; thence due east 750 feet to S. center side-line post No. 5; thence on the same course 750 feet to the S.E. corner post No. 6; thence due N. 150 feet to the place of beginning. Sugar Loaf Mountain, at its highest point, bears from the center of the discovery shaft S., 70~ 30' east, and this claim is located in section 11, T. 1 N., and range 73 W. of the 6th principal meridian. L.D. Chase. [ Seal.]

"Said lode was discovered on the 11th day of July, A.D.1889.

"Date of location: July 11, 1889.

"Date of this certificate: Sept. 29, 1889.

"Attest R.Z. Mason, Surveyor."

This certificate was recorded in the proper office on October 2 1889, in Book 117, at page 505 thereof. Whatever title Chase acquired passed by mesne conveyances to one Sampson. While Sampson held title he filed an additional location certificate, viz.:

"Know all men by these presents, that I, Mason L. Sampson, the undersigned, have relocated, and do hereby claim, by right of discovery and relocation, 1,500 feet linear and horizontal measurement on the Comstock lode, together with all veins, lodes, ledges, and surface ground within the lines of said claim as hereinafter stated: 300 feet on said lode running N.E. from the center of the discovery shaft on said lode, and 1,200 feet running S.W. therefrom; said lode being situated in Ward mining district, Boulder county, and state of Colorado, and more particularly described as follows: Beginning at the discovery shaft, an 18-foot shaft; thence running N.E. 300 feet to N.E. end line; thence running N.W. 75 feet to N.E. cor. post No. 1, set in a mound of stone; thence running S.W. 750 feet to N. side center stake; thence running S.W. 750 feet to N.W. cor. post No. 2, set in a mound of stone; thence running S.E. 150 feet to S.W. cor. post No. 3, set in a mound of stone; thence running N.E. 750 feet to S. side center stake; thence running N.E. 750 feet to S.E. cor. post No. 4, a pine post set in a mound of stone; thence running N.W. 75 feet to a point of intersection on the N.E. end line,--all of said lode claim being in and forming a portion of sec. 11, T. 1 N., range 73 W. 6th prin. meridian, and locally known as lying on the top of mountain S. of Dew Drop gulch, and about 3,000 feet W. of the old California mine, a patented property. Said lode was discovered July 11, 1889, and was located Sept. 29th, 1889. The object of this relocation and amendment being to more accurately locate the territory along the course of the lode. The original location certificate is recorded in Book 117, page 505, of Boulder Co. Date of certificate, August 29th, 1891. Mason L. Sampson. [ Seal.]"

This certificate was recorded in the proper office on the 28th of September, 1891. It will be observed the description in this additional certificate starts at the discovery shaft as the locating point, and runs the claim northeast of it 300 feet to the northeast end line; thence northwest to corner post No. 1, set in a mound of stone; thereafter, according to the description, the courses and distances are run southwest, northwest, southeast, and northeast. It will be further noticed there is no allowance for the variation of the needle, which, speaking generally, is between 14~ and 15~ in Boulder county. This circumstance has been made a basis of considerable argument by counsel. To make the situation entirely plain, we attach a reduced copy of a map which was received in evidence, and which will more clearly exhibit the controversy:

(Image Omitted)

The Comstock lode originally ran due east and west. When Sampson filed his additional certificate, he used the discovery shaft as a pivot on which he swung his claim so that it ran northeasterly and southwesterly. The appellees put on the map what they designate as the "second location of the Comstock." The difference between this and the location as stated in the certificate and the application for the patent comes from the allowance in the latter case for the variation of the needle. Allowing for that variation, the claim did not run northeast and southwest, unless the true northeast and true southwest be that point of the compass with the variation allowed. The evidence tended to prove that at the time of this location in 1891 Sampson staked the claim at its four corners and the center of both side lines with posts set in mounds of stone, and that the claim as thus staked ran northeast and southwest with the due allowance for the variation of the needle. If these facts did not clearly appear, there was an offer of evidence to these points. According to the appellees' contention, the claim was never staked as platted on the map, nor was there any other location made by Sampson or his grantees, and located on the ground along the lines, and covering the course exhibited by the second location, as the appellant platted it. When Duncan offered these certificates, they were rejected on the theory that the description was indefinite, and did not show a compliance with the statute. The objection was that the claim was not tied to any patented claim or section corner, or to any other natural object or permanent monument which would make the record a statutory one. It must be remembered that in the certificate of 1891 the claim was described as in "section 11, T. 1 N., range 73 W.," and as lying on top of the mountain south of Dew Drop gulch, and about 3,000 feet west of the California mine. The appellant then offered to prove that this mine was 3,000 feet from the claim, and that it was the oldest and only patented mining claim in the vicinity; whereupon the further objection was made that this could not be proven aliunde. He also offered to prove that Dew Drop gulch was a well-known gulch, the center of which was about 750 feet east from the Sampson, and that the head of it was northerly therefrom about 500 feet. The defendant further offered to prove that the quarter section corner between sections 11 and 12 was not known and its location could not be ascertained. Duncan further offered to prove that the stakes set at the time of the survey in 1891, when the additional certificate was filed, were on the ground, and had stood from this time to December, 1895, and that these stakes marked the lines, and corresponded with the points designated at the time of the survey. All this testimony was excluded. This statement substantially exhibits the only facts to which we need refer. As has already been suggested, no question was made respecting the abstract of title or the regularity of the deeds whereby the title passed to Duncan. If any title was acquired by what the locators and subsequent owners did, this title vested in Duncan, and he had a right to prove it, or to produce his evidence to support it, and go to the jury on the proposition.

Guy D. Duncan, for appellant.

Giffin & Rowland, for appellees.

BISSELL, P.J. (after stating the facts).

Mineral rights are granted to miners by federal statutes. Under the grant expressed, miners may go on the public domain, discover lodes and veins, and acquire title. Thereunder mining claims have been located in all the states and territories in the Rocky Mountains. The courts of these various states and territories have attempted to interpret and construe them. There is considerable diversity of judicial opinion about them. Their true meaning must ultimately be determined by the supreme court of the United States. We take it, wherever that court has expressed an opinion, it is binding on all courts and...