Healey v. Rupp
| Citation | 37 Colo. 25,86 P. 1015 |
| Parties | HEALEY et al. v. RUPP. |
| Decision Date | 02 July 1906 |
| Court | Supreme Court of Colorado |
Appeal from District Court, Lake County; Peter L. Palmer, Judge.
Action by Albert J. Rupp against John Healey and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
Blake & Thompson and Wells & Chiles, for appellants.
Chas Cavender, for appellee.
The subject-matter of controversy is the conflict between two lode mining claims, known as the 'Canestota' and 'Last Batch.' The owners of the Last Batch applied for patent, which was adversed by the owners of the Canestota. Thereafter, suit was brought by appellee, as plaintiff, in support of this adverse against the appellants as defendants. From a judgment for plaintiff the defendants appeal. There have been several trials, and the case has been here once before for review. 28 Colo. 102, 63 P. 319. Prior to the last trial, the record of which is presented by this appeal, plaintiff, over the objection of defendants, was permitted to file a supplemental complaint, basing his right to the premises in controversy upon a discovery as of a date many years subsequent to the time of filing his adverse in the local land office. Prior to the filing of this supplemental complaint the plaintiff filed an amended and additional location certificate, in which he claimed the premises in dispute by virtue of the discovery mentioned in his supplemental complaint. At the trial the plaintiff was permitted to introduce testimony to prove the discovery of mineral as alleged in the supplemental complaint at the point designated in the amended and additional location certificate. He did not attempt to prove the presence of mineral in the discovery shaft of his claim. The discovery of mineral in the discovery shaft of the Last Batch was controverted, as well as the discovery of mineral in the Canestota at the point designated in the supplemental complaint. These questions were submitted to the jury.
From this record counsel for appellants contend that the court erred in permitting plaintiff to file his supplemental complaint, and that it was error to permit the plaintiff to introduce testimony tending to prove the discovery of mineral at the point designated in his supplemental complaint, for the reason that plaintiff's suit in support of his adverse could not be supported nor maintained as to discovery and location except as claimed to exist by the adverse filed.
The general rule is that the order in which the various steps requisite to make a valid location of a mining claim are taken is immaterial, provided they are completed before the rights of third parties intervene. Therefore, a discovery though made after staking and record, will inure to the benefit of the locator, but only as of the date of such discovery, provided, of course, that others have not previously acquired rights to the premises upon which such discovery is made. Beals v. Cone, 27 Colo. 473, 62 P. 948, 83 Am.St.Rep. 92; Brewster v. Shoemaker, 28 Colo. 176, 63 P. 309, 53 L.R.A. 493, 89 Am.St.Rep. 188; The Treasury T., M. & R. Co. v. Boss. 32 Colo. 27, 74 P. 888, 105 Am.St.Rep. 60; Erwin v. Perego, 93 F. 608, 35 C.C.A. 482; Uinta T., M. & T. Co. v. Creede & C. C. M. & M. Co., 119 F. 164, 57 C.C.A. 200.
The question presented by the record is whether or not the plaintiff, as the claimant of the Canestota, is entitled to invoke this rule. An action in support of an adverse against an application for patent partakes of the nature of one in ejectment, but some of the rules pertaining to that character of action are modified. The prime purpose of such a suit is to determine, for the information of the officers of the land department, which, if either of the parties thereto is entitled to be vested with the fee of the premises in dispute by purchase from the government. McGinnis v. Egbert, 8 Colo. 41, 5 P. 652; Manning v. Strehlow, 11 Colo. 451, 18 P. 625; Becker v. Pugh, 9 Colo. 589, 13 P. 906; Wolverton v. Nichols, 119 U.S. 485, 7 S.Ct. 289, 30 L.Ed. 474.
The proceedings in this case had their inception in the Land Office when the defendants filed an application for patent on the Last Batch lode. The next step was the filing of an adverse by the...
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