Girard v. Carson

• Decision Date: 16 March 1896
• Citation: 22 Colo. 345,44 P. 508
• Parties: GIRARD et al. v. CARSON et al.
• Court: Colorado Supreme Court

44 P. 508

22 Colo. 345

GIRARD et al. v. CARSON et al.

Supreme Court of Colorado

March 16, 1896

Appeal from court of appeals.

Action by J. B. Girard and others against J. C. Carson and others. From a judgment of the court of appeals (33 P. 69) reversing a judgment for plaintiffs, they appeal. Affirmed.

W. W Cooley and Aaron Heims, for appellants.

HAYT C.J.

This is an adverse suit, instituted by J. B. Girard and others, as the owners of the Long John mining claim, situate in Pitkin county, Colo. J. C. Carson and others were made defendants. The defendants claim the ground in controversy as a part of the Aurora and Elgin mining claims. Plaintiffs, in the complaint, allege that the Long John mining claim was located upon the unapporpriated public domain of the United States on the 25th day of June, 1883. The defendants' claims were not located until five years thereafter, to wit, in 1888. Another mining claim that has an important bearing upon the controversy is owned by third parties, and is known as the 'North Star.' In 1889 the owners of this mining claim applied for a patent, and prior to the institution of this suit obtained a receiver's receipt for all the territory embraced within the North Star location. The defendants having introduced proof tending to show that the original discovery shaft of the Long John claim was located within the exterior boundaries of the North Star claim as patented, they asked the court to give the following instruction with reference thereto: 'The jury are instructed that if you believe from the evidence that the original discovery shaft of the Long John lode was sunk on unappropriated ground, and that afterwards the plaintiffs permitted it to be taken away from them, and patented as a part of the North Star lode mining claim, the plaintiffs cannot recover in this suit unless they made another location on unappropriated ground by setting up a new discovery stake at the new discovery shaft, and otherwise complied with the requirements of the law as indicated in instruction 1, with regard to the location of a mining claim.' This instruction correctly states the law applicable to the evidence and should have been given. In order that the locator of a mining claim may obtain any right to mining property by virtue of his location, the same must be made upon the unappropriated lands of the United States and where application is made for a patent to another, which...