Eberle v. Carmichael

• Decision Date: 16 October 1895
• Citation: 8 N.M. 169,42 P. 95
• Parties: EBERLEv.CARMICHAEL et al.
• Court: New Mexico Supreme Court

8 N.M. 169

42 P. 95

EBERLE

v.CARMICHAEL et al.

Supreme Court of the Territory of New Mexico.

Oct. 16, 1895.

Error to district court, Socorro county; before Justice H. B. Hamilton.

Ejectment for the possession of three mines by Francis X. Eberle against William Carmichael and others. A verdict was directed for defendants, and plaintiff brings error. Reversed.

This was an action in ejectment brought on October 26, 1893, by plaintiff against defendants, for the possession of three mines situate in the Cooney mining district, in the county of Socorro, N. M., called the Clifton, Lexington, and Andrew Jackson. Defendants pleaded not guilty only, -put in no special plea, -and the court directed, verbally, a verdict for plaintiff for the Clifton Mine, and a verdict for the defendants for the Lexington and Andrew Jackson Mines. On that verdict, judgment was entered for plaintiff for the possession of the Clifton Mine, and against the plaintiff as to the Lexington Mine and as to five-sixths of the Andrew Jackson Mine, and in favor of plaintiff for one-sixth of the Andrew Jackson Mine, which last was entered on a stipulation of consent of the defendant Adam Hugg. The plaintiff, on the entering of such judgment, made motions for new trial, and in arrest of judgment, both of which were overruled, and he has brought the case into this court by writ of error. The testimony tended to show that an oral agreement was made in the year 1878 or 1879 between John E. Eberle, for himself, and asagent of F. X. Eberle and Langford Johnson, that said John E. Eberle and Johnson would prospect for and locate mines in Arizona and New Mexico, and that all mines located in the name of either should be owned in common by the three; F. X. Eberle to furnish the necessary means to develop and hold said mines under the mining laws of the United States. Subsequent to this agreement the Clifton Mine was located, on May 26, 1879, in the name of Johnson, and on October 3, 1881, the Lexington Mine, in the name of John E. Eberle, and the Andrew Jackson Mine, in the name of the plaintiff, F. X. Eberle. The location notice of the Lexington was recorded in May, 1879, and that of the other two in December, 1881. The three mining claims lie adjacent, -that is to say, the Lexington abuts the Clifton on the north, and the Andrew Jackson abuts the Lexington on the north, -making a continuous vein or lode, extending nearly 4,500 feet in length for the three. On April 5, 1887, Johnson executed an instrument purporting to convey to John E. Eberle his interest in said three claims, reserving oneeighth of the proceeds of the sale thereof, which instrument was filed in the county recorder's office on April 20, 1887. John E. Eberle conveyed all his interest in the three claims to F. X. Eberle, the plaintiff, on December 26, 1889; acknowledgment being made before a notary public on January 4, 1890, and the instrument recorded in the county recorder's office on January 9, 1890. There is testimony tending to show that John E. Eberle had, prior to this time, conveyed the same interest to F. X. Eberle, but the instrument of conveyance was lost, without ever having been recorded. The location notice, as recorded, is as follows: “Notice of Location. Territory of New Mexico, County of Socorro-ss.: Know all men by these presents, that John E. Eberle, the undersigned, citizen of the United States, has this 3rd day of October, 1881, claimed, by right of discovery and location, and does hereby claim, by virtue of such right, 1,500 feet, linear and horizontal measurement, in length, and 300 feet in width on each side of the middle of the vein on this lode, vein, ledge, or deposit, along the course of the same, with all its dips, variations, and angles, together with the amount of surface allowed by law. This said lode, vein, ledge, or deposit hereby located and claimed as aforesaid is situated in Cooney mining district, Socorro county, territory of New Mexico, and is bounded and described as follows, to wit: Commencing at monument where notice is posted, and running northerly direction 1,500 feet. Corners all marked as required by law. Situated about 1,500 feet north of Silver creek. Bounded on south by the Clifton Mine; on the north by the Andrew Jackson Mine. The same vein, ledge, or deposit so located is the Lexington Mine, discovered October 3rd, 1881. Located October 3rd, 1881. John E. Eberle, Locator. Witnesses: L. Johnson, J. W. Foster. Lexington Mine. John E. Eberle, Locator.” The Andrew Jackson location notice is in the same language, with description as follows: “Commencing at the north end center monument of the Lexington Mine, and running 1,500 feet, in a northerly direction, to a monument of stone, with all corners marked by substantial monuments of stone, according to law, and is bounded on the south by Lexington Mine, about one-half mile south of Mineral creek.” The testimony tended to show that on the Clifton Mine. Located in 1879, annual work was done on the lode, down to and including the year 1882, and upon each of the other mines for the years 1881 and 1882, and that subsequent to 1882 work was done every year upon the Clifton, in a tunnel, up to the time of commencing this suit. There was also testimony that down to the time that Johnson conveyed his interest, reserving oneeighth in the three mines, the work was done by the means furnished by F. X. Eberle, and the joint labors of the other two and their employés, and that on February, 1889, an employé of John Eberle sank a shaft on the Lexington, to a depth of about 12 feet, at an expense of $10 per foot. There is some evidence tending to show that the purpose of the tunnel upon the Clifton Mine was for the developing and holding of it and the other three claims, and that such work did so tend, and would, in all likelihood, result in such development, if said tunnel were sufficiently extended. The testimony shows that shafts were sunk on the lead in each of the three mines at the time of location. Also, there was testimony tending to show that the defendants were notified, prior to their going upon the mines, that the tunnel on the Clifton was for the purpose of developing the three mines. There was also testimony showing a purchase by plaintiff from Adam Hugg, one of the defendants, of his interest in the three mines, and a contract accompanying the purchase, setting forth that the same was made by plaintiff, while expressly disclaiming any acknowledgment of interest in Hugg, but for the purpose of removing a cloud upon plaintiff's title. It was shown, also, that Hugg located in 1888 the Consolidated Mine, so as to conflict with the Andrew Jackson location.

Where there was evidence to show an oral agreement between plaintiff and two others and all mines located in the name of either should be owned in common by the three, and three mines were located, one in the name of each, and an amount of work for the benefit of all was done on one mine equal to that required by the mining laws to be done on all, and the interest of the others was conveyed to plaintiff, he is entitled, in an action of ejectment against persons claiming under a location made prior to the conveyance to plaintiff, to have the issue of his ownership submitted to the jury.

Thomas B. Catron, for plaintiff in error.

H. L. Pickett, for defendants in error.

COLLIER, J. (after stating the facts).

We deem it unnecessary to comment on the evidence submitted by the plaintiff as to there being an oral agreement between him and John E. Eberle and Langford Johnson for a location and development of mines for the benefit and co-ownership of the three; of work being prosecuted in furtherance of said agreement; and of a tunnel being run on the Clifton Mine, intended, and reasonably tending, to develop the three mines. The testimony on these points, being uncontradicted, was sufficient to carry plaintiff's...