Frisholm v. Fitzgerald

• Decision Date: 02 July 1898
• Citation: 25 Colo. 290,53 P. 1109
• Parties: FRISHOLM et al. v. FITZGERALD.
• Court: Colorado Supreme Court

53 P. 1109

25 Colo. 290

FRISHOLM et al. v. FITZGERALD.

Supreme Court of Colorado

July 2, 1898

Appeal from district court, Lake county.

Action by William W. Frisholm and another against N. B. Fitzgerald. Judgment for defendant. Plaintiffs appeal. Affirmed.

This is an action brought in support of an adverse, and involves the right to the possession of certain mineral land in California mining district, Lake county, Colo. The appellee, defendant below, who is seeking to obtain a patent for the land in controversy, claims the right thereto by virtue of certain lode locations alleged to have been made in 1892, and known as the 'Belle of the West,' 'Warren B Fitzgerald,' 'Spar,' and 'Jesse Gray' lode mining claims. The appellants, plaintiffs below, base their claim thereto upon five locations alleged to have been made in 1894, called the 'Defiance' lode claims numbered from 1 to 5, inclusive. The locations of the parties cover substantially the same ground, and the principal controversy was over the validity of these respective locations. The testimony as to whether the appellants' locations were made upon a discovery of mineral in rock in place is conflicting, and leaves that question very much in doubt. On the other hand, it is clearly shown that, prior to their attempted location, appellee, by quite extensive developments, had disclosed in each of his claims a well-defined mineral-bearing vein. There was also testimony to the effect that there was a proper staking or marking of their boundaries, and an attempted compliance with the law respecting the filing of location certificates. These certificates were defective, in that they contained no reference to a natural object or permanent monument. For the purpose of curing this defect, amended or additional certificates containing this reference were filed in January and March, 1895. The case was tried to the court, and resulted in a judgment in favor of appellee. To reverse this judgment the case is brought here on appeal.

William H. Harrison and Phelps & Pendery, for appellants.

John A Ewing, for appellee.

GODDARD J. (after stating the facts).

The only assignments of error that require consideration are those based upon the admission and rejection of testimony. The court, over the objection of appellants, admitted in evidence the original and amended certificates of appellee and refused to permit appellants to introduce testimony in rebuttal for the purpose of showing that at the time of his attempted locations there were no stakes upon the ground in question. In support of the first objection, it is contended that the original certificates, by reason of the defect above mentioned, were void, and that no amendment could be made with a view of curing such defect after appellants had undertaken to relocate the ground. We think this objection might be disposed of upon the presumption that the court must have found from the evidence that appellants' locations were not made upon a valid discovery of mineral, and therefore that they had acquired no intervening rights to the ground in question. But in view of the fact that errors and omissions in original location certificates are of such common occurrence and of the frequent attempts to defeat and avoid an otherwise valid location because of such defects, we will dispose of the objection upon the assumption that appellants' locations were made upon a valid discovery, and that, in so far as they might thereby acquire intervening rights, they have done so, and determine whether, under such circumstances, a defective certificate is susceptible of amendment. While by section 2400, Gen. St., it is declared that a certificate that shall not contain such description as shall identify the claim with reasonable certainty shall be void, yet by section 2409 it is provided: 'If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing, or shall be desirous of changing his surface boundaries, or of taking in any part of an overlapping claim which has been abandoned, or in case the original certificate was made prior to the passage of this law, and he shall be desirous of securing the benefits of this act, such locator, or his assigns, may file an additional certificate, subject to the provisions of this act: provided, that such relocation does not interfere with the existing rights of others at the time of such relocation, and no such relocation or other record thereof shall preclude the claimant o...