Harrington v. Chambers

• Decision Date: 06 February 1882
• Court: Utah Supreme Court
• Parties: HARRINGTON ET AL. v. CHAMBERS ET AL

1 P. 362

3 Utah 94

HARRINGTON ET AL. v. CHAMBERS ET AL

Supreme Court of Utah

February 6, 1882

APPEAL from the third district. The opinion states the facts.

Affirmed.

Bennett & Harkness, for the appellants.

It was incompetent to attack the title of the Switzerland by showing that some claim not in controversy or owned by either party had a better title. If such attack in any case would be proper, it could not be made by proof of the declarations of a third person.

The second and thirteenth assignments of error in law may be considered together. The fifth finding of fact shows no work was done on the Parley's Park claim for more than a year before the location of the Accidental. For this reason the Accidental was located. This location and a conveyance to defendant were set up by supplemental answer. The twelfth thirteenth, fourteenth, fifteenth, and sixteenth findings of fact show this claim was held and worked in compliance with mining laws. To obviate this, and to prove work on the Parley's Park claim, the plaintiff showed work on the shaft on the Lady of the Lake claim, and the findings in favor of plaintiff are based on this work, shown by the evidence of Benjamin W. Morgan; the admission of this evidence was error: U. S. R. S., sec. 2324; 43d Congress, c 41, p. 315; Mt. Diablo Co. v. Callison, 5 Saw. 440.

The law requires the discovery of a lode--not of something a miner may call a lode. If as experts the witnesses could give opinions, they could only give their own opinions, and it was not competent for them to state what would be the opinions of miners. This is extending the testimony of experts beyond the bounds of facts and their own opinions on the facts, and further than any authority will justity: 1 Greenl. Ev., secs. 440, 441; 53 N.Y. 603; 54 Id. 90.

The witnesses on the part of the plaintiff, to prove a discovery of a lode at the time of location, were permitted to state indications of a vein at other points on the claim, and to compare indications at the Parley's Park discovery with indications at the surface in other mines. The question disputed was as to the existence of a lode at the discovery point, and the evidence had no tendency to prove this.

Sutherland & McBride, for the respondents.

The great weight of the evidence is in favor of the finding that a vein was discovered in the Parley's Park. But on protest suits the issue is made exclusively on the question of the "right of possession," and the mineral character of the claim is not one submitted to the jurisdiction of the court by the law.

The portion of the fifth finding of fact noticed in the third assignment of error on the motion for new trial is an objection to the testimony introduced of work done on the shaft located on the Lady of the Lake claim, to prove assessment work on the Parley's Park claim. The testimony is relevant and proper: English v. Johnson, 17 Cal. 107.

The late case of Mt. Diablo M. Co. v. Callison, 5 Saw. 440, fully sustains this rule and the ruling below.

It is objected that the witness Kennelly was allowed to state what Caine, one of the locators of the defendants' claim, the Switzerland, said about the location and its being bad, as against the Ontario Extension claim, in which he was also interested. As the testimony was as to the declarations of one owner and claimant, it was as proper as any other admission made by a party against his interest. But as the court found the fact of the Switzerland location and all the other facts of recording, working, and labor necessary to make it good, and held it bad because it was subsequent in time to the Parley's Park location, it is certain that the evidence did the defendant no injury. This is made so clear by the finding of the court, that even if the evidence was erroneously admitted, this court would not reverse on that ground--the court below disregarded it by the finding.

The objection to the opinions of miners as to what is a lode is urged on the ground that an expert can only give his own opinion. The questions asked and answered are almost literally taken from the definition given by Field in the Eureka-Richmond case. They were proper if the questions were in issue, which we deny: Kahn v. Old Tel. M. Co., Utah Supreme Court, 4 Saw. 502.

It is assigned for error that the plaintiffs were permitted to prove indications of a vein at other points in this claim than the place called discovery.

It would be the veriest mockery of justice to hold that a prior locator of a claim should lose his location because on a question arising years after the location, it might appear that in fact he put his discovery point in what was barren of ore, although the claim did in fact contain a vein. Hundreds of veins are first located in float, and instances have occurred of thousands of dollars being spent in finding the vein in place, and it can scarcely be the case that if a locator misses the vein by a few feet, that when he afterwards finds and develops the actual vein, his location is void. Such an interpretation of the law would be juggling with the rights of the miner; would unsettle and ruin hundreds of titles, and is not according to the law which only requires ore "within the limits" of the claim.

Placing the testimony on the ground that the evidence had a tendency to show a vein at discovery, it was entirely within the rule making it admissible. If the vein is in doubt at one point on all the proof as to its character, evidence tending to show its continuity, as well as its character at other points, may remove or clear up the doubt. No vein is at all points equally good. The best at places are barren, and proof of continuity, with ore at different places, affords a strong basis for inference as to its character at the controverted point. Besides, a vein is a unit. A discovery at one point in its course is a discovery of the vein, and proof of its character at any point fills the purpose of the law.

The testimony received at the close of the case was admissible: 1. It was properly evidence in rebuttal; 2. On the ground that in its discretion the court could admit it at any stage of the case. To refuse the testimony might have been error; to admit it could not prejudice the defendant.

EMERSON, J. HUNTER, C. J., concurred. TWISS, J., dissented.

OPINION

EMERSON, J.:

The appellants having made application for the government title to certain mining ground known as the Switzerland claim, the respondents filed an adverse claim to a portion of the premises, under a mining claim known as the Parley's Park, and thereupon commenced this action to determine the right of possession of the ground in controversy.

The case was tried by P. L. Williams, esq., referee, and upon his report of findings of fact and conclusions of law, a decree was rendered in favor of the respondents. A motion for a new trial was made, which was overruled. Thereupon this appeal was taken from the order overruling the motion for a new trial and from the judgment. The record contains the following:

"It is stipulated by the counsel that the testimony taken be considered as taken in all the cases; that will be so as to all the testimony; that being taken in one case is to be used in all the others as far as applicable."

Besides the above-entitled case, there were referred to the same referee a cross-suit between the same parties involving the same questions and subject-matter, the parties therein being merely reversed; also an action by defendants against the plaintiffs involving the same mining ground, the plaintiffs therein representing the Como tunnel and the defendants therein the Parley's Park mining claim; also an action by the defendants representing the Parley's Park claim against Harry Rickard et al., applicants for and representing the Ontario No. 1 Extension East mining claim, which suit involved the right to the same mining ground in dispute in the principal case, and the foregoing stipulation refers to all of said actions, the attorneys of record being the same in all."

The referee reported the following findings of fact and conclusions of law:

FINDINGS OF FACTS.

1. That the locators of the Parley's Park mining claim, mentioned in the complaint, at the time of the location of said claim, viz., on the nineteenth day of July, 1872, at the "discovery point" of said claim, discovered a mineral-bearing vein or lode, and the claim was duly recorded August 9, 1872.

2. That soon after said location, to wit, in the month of August, 1872, the locators of said Parley's Park mining claim marked on the ground the boundaries of said claim by setting stakes at the corners thereof.

3. That prior to the twenty-fourth day of July, 1874, and within a year preceding that time, the owners of said claim performed labor and made improvements thereon of one hundred dollars in value.

4. That each year thereafter, up to July 19, 1878, work of the value of one hundred dollars was done on said claim by the owners thereof.

5. That during the year beginning on the nineteenth of July, 1878, the owners of the Parley's Park claim were also the owners of two certain claims, called respectively the "Central" and "Lady of the Lake," the Central adjoining the Parley's Park, and Lady of the Lake adjoining the Central mining claim, and that with a view to the future working and development of all three of said claims, the owners thereof located what is called the "main shaft" in the Lady of the Lake surface ground; that said shaft is in such proximity to said Parley's Park mining claim; that work in it has a tendency to develop said claim, and said shaft was located and intended for the purpose of developing all of said claims.

I find that during said last-named year, work was...