Fleming v. Daly

• Decision Date: 09 January 1899
• Citation: 12 Colo.App. 439,55 P. 946
• Parties: FLEMING et al. v. DALY.
• Court: Colorado Court of Appeals

55 P. 946

12 Colo.App. 439

FLEMING et al. v. DALY.

Court of Appeals of Colorado

January 9, 1899

Appeal from district court, Gunnison county.

Action by George M. Fleming and others against Pat Daly. There was a judgment for defendant, and plaintiffs appeal. Affirmed.

S.D. Crump and Oscar Reuter, for appellants.

Charles J. Hughes, Jr., J.M. McDougal, and Branch H. Giles, for appellee.

THOMSON P.J.

The appellee made application in the proper land office for a United States patent to the Good Record lode mining claim situate in Green Mountain mining district, Gunnison county Colo. In due time the appellants, as claimants of the Only Chance mining claim, whose surface boundaries were in conflict with those of the Good Record, filed in the same land office their protest against the issuance of a patent to the appellee upon his application. Within the proper time the appellants brought this suit against the appellee to determine the question of the right to possession of the territory in conflict. The complaint set forth the possessory title of the plaintiffs, as claimed by them, the occupation by the defendant in virtue of the Good Record location, the application by the defendant for a United States patent, and the filing by them of their adverse claim, and prayed judgment for the possession of the ground in dispute. The answer denied title in the plaintiffs, and averred a prior and superior right in the defendant to the territory in controversy. The defendant prevailed in the suit, and the plaintiffs have brought the case here by appeal.

The appellants assign for error, in a general way, the exclusion by the court of proper, competent, and relevant testimony offered by them, and the admission by it of improper irrelevant, and immaterial testimony offered by the defendant. These assignments cannot be considered. They do not direct our attention to any specific testimony, excluded or admitted. They are indefinite, and leave us entirely in the dark as to the particular rulings of which they complain. The other assignments go to the withdrawal of certain evidence from the consideration of the jury, to the instructions given, and to the refusal of instructions offered by the plaintiffs. These objections will all be noticed in their order.

The Only Chance vein was discovered on the 25th day of July, 1894. There was no controversy over the fact of the time of the discovery, or over the validity of the location, in so far as it embraced ground subject to location. The testimony for the defendant was that on the 14th day of June, 1894, Joseph F. Grant discovered the outcrop of a vein, and proceeded to, and did, make a location upon it in the name of the defendant, calling the location the "Good Record." Charles Gilbert, one of the plaintiffs, testified that on the 25th day of July, 1894, he met Mr. Grant at the place where himself and his associates were working, and was told by Grant that they were on his ground, but that they should not be afraid,--that he would divide the ground with them, and they should take a claim one way, and he the other; and that Grant also said he would pull back the Horseshoe stake, or the Lucky Strike stake; whereupon they divided the distance between the two shafts, blazed a tree as the dividing line, and set up a stake, the plaintiffs to take a claim 1,500 feet west, and Grant to take a claim 1,500 feet east; Grant saying that he controlled the ground west, that he would protect the plaintiffs, and that if any one else interfered with them, or tried to take them in, he would make them a deed to the ground. The plaintiffs afterwards surveyed their claim to the westward, and laid it largely over the ground embraced in the Good Record location. Mr. Grant, as a witness for the plaintiffs, testified that, when he set up the location stake on the Lucky Strike, he was acting for the defendant and a Mr. Cuenin, that he located other claims for the defendant that summer (naming some of them), and that he used his own judgment as to whether he should keep the locations up or not. In answer to a question he said that the defendant put him in charge of matters connected with the locations; but owing to the form of the question, and the form of his answer, it is impossible to tell what the particular matters were to which he referred. The theory of the plaintiffs is that in the arrangement between Grant and the plaintiff Gilbert, by which a conflict between the Only Chance claim and certain other overlapping territory was avoided, Grant acted as the agent of the defendant, that the effect of the agreement was to relinquish to the plaintiffs all ground claimed by the defendant which the plaintiffs might embrace in their survey of the Only Chance, and that, as they surveyed their claim over the Good Record, the territory within that location which they included in the survey became theirs by virtue of the agreement. The court instructed the jury to disregard all evidence concerning the division of the ground between the Only Chance and Lucky Strike claims, and the agreement between Grant and Gilbert in relation thereto, and all statements by any witness as to what the agreement was; and the plaintiffs say that, in view of the evidence, the instruction was erroneous. It is most certainly true that, if the plaintiffs' theory of the facts was supported by any evidence, that evidence should have been submitted to the jury, and the court had no right to withdraw it from them, or instruct them to disregard it. To determine the effect of the agreement, on the hypothesis that Grant had authority to make it, the entire conversation must be considered; we must find what the parties were speaking about, what their attention was directed to, and within what limits the current of their talk was confined. We can thus ascertain what their understanding was at the time. And to determine the effect of the agreement upon the defendant, on the hypothesis that one such as counsel describe was in fact made, we must find what, if any, evidence there was of Grant's authority to make it.

It seems that there were two claims with which the Only Chance was supposed in some manner to interfere, and with which Grant was in some way connected,--one, the Horseshoe; and one, the Lucky Strike. These two claims appear to have covered, in part, at least, the same ground. There seem also to have been two Lucky Strikes,--an old and a new one. The names on the old Lucky Strike stake were Cuenin and Grant and on the new, Cuenin and Daly. How the old and the new were related to each other does not appear, nor are we able from the testimony to say with certainty which one of the claims the witnesses meant when speaking generally of the Lucky Strike. There were only two witnesses to the conversation from which the supposed agreement was deduced,--Grant and Gilbert. Concerning the conversation generally, there was no substantial disagreement between them; but, as Gilbert is one of the plaintiffs, and presumably did not state the case more strongly against himself than his understanding of the facts would warrant, we take his version of the occurrence. We have already given his testimony on the subject in part. At the same time, and in the same connection, he said that the statement of Mr. Grant, that, if it became necessary to the protection of Mr. Gilbert and his associates, he would give them a deed, was made with reference to the Lucky Strike or Horseshoe, and the deed was to be a deed of ground covered by those claims, or one or the other of them; that he was at no time advised that anybody but Mr. Cuenin and Mr. Grant was concerned in the arrangement; that he at no time had any agreement or understanding that the Good Record was to be abandoned or deeded, or that Mr. Daly had anything to do with Mr. Grant's proposition; and that Mr. Grant never at any time agreed or claimed that he represented Mr. Daly. We do not think that the conversation, taken as an entirety, presents the smallest difficulty. It had its origin in the discovery by Grant that the plaintiffs were working upon ground in which he claimed some kind of interest. That ground belonged either to the Lucky Strike or Horseshoe, or both. No part of it was within the boundaries of the Good Record. The ground which he proposed to divide was Lucky Strike or Horseshoe ground, and that is the ground which was divided. The ground, in the occupation of which he proposed to protect them, was the ground he then ceded. Of necessity, this must have been the case, because the parties were talking of no other ground, and were thinking of no other ground. When Grant stated that he controlled the ground west, he must have referred to the ground which was the subject of their conversation; and Mr. Gilbert, according to his own testimony, did not...