Kendall v. San Juan Silver Mining Co.

• Citation: 9 Colo. 349, 12 P. 198
• Case Date: November 12, 1886
• Court: Supreme Court of Colorado

12 P. 198

9 Colo. 349

KENDALL and others
v.
SAN JUAN SILVER MIN. CO.

Supreme Court of Colorado

November 12, 1886

Appeal from district court, San Juan county.

Action of ejectment. Judgment for defendant. Plaintiffs appeal.

It appears from the record that about the month of October, 1880, the appellee made its application in the United States land-office in Lake City, Colorado, for patent to the Titusville lode claim, situated in San Juan county, and that the appellants, on the twenty-third of October, 1880, filed in said office their adverse claim, alleging that a certain portion of the premises sought to be patented by the appellee was covered by the Bear lode claim, a prior location owned by the appellants. The present action was afterwards instituted by the appellants in the district court of San Juan county in support of their adverse claim.

The complaint avers the location of the Bear lode by the appellants on the third day of September, 1872, by the sinking of a discovery shaft, the discovery of mineral, and the due performance of all the various acts necessary to perfect a mining location under the congressional and statutory laws and the local rules and customs; also that the claim was then open to entry as mineral land, and was unoccupied and unclaimed by any person. The performance of annual labor, and all other acts necessary to preserve said Bear lode from forfeiture, are likewise averred. The complaint states, further, that the Bear lode claim, as originally located, extended 1,500 feet in length, and 100 feet in width, on each side of the center of the vein, and so remained until the fourteenth day of October, 1876, when the owners filed an additional certificate of locations in the office of the recorder of San Juan county, claiming 150 feet on each side of the center of the vein. It alleges that the Titusville lode is a junior location, and includes within its boundaries a portion of the territory embraced in the Bear location. From the description given in the pleadings of the portions of said claims which are in conflict, it appears that the Titusville location includes 1,200 feet in length of the Bear surface ground, and in width covers more than the south half of said surface ground for said entire 1,200 feet. The plaintiffs further allege that they have expended the sum of $150 in the preparation and filing of their adverse claim, and they pray judgment for the possession of the premises, for the recovery of said sum of $150, and for costs of suit.

The appellee's answer denies all the material allegations of the complaint, and denies that the ground in controversy comprised a part of the unappropriated public domain of the United States, and that it was open to location on the third day of September, 1872. It alleges that at that date it comprised a portion of a certain tract of land, which, by treaty between the United States and certain confederated bands of Ute Indians, in Colorado, duly approved, and afterwards, on November 6, 1868, duly proclaimed by the president of the United States, had been set apart to the use and occupation of said Indians, and that the Indian title to said tract of land was not extinguished until March, 1874. The answer further alleges that, if plaintiffs were entitled to make a location on said tract of land at the date mentioned, they were not entitled to a location exceeding 50 feet in width. And, for further answer and cross-complaint, the appellee alleges the location of the Titusville lode claim on the twenty-ninth day of August, 1874, together with the existence of all conditions and the performance of all acts necessary to constitute a valid location of the vein and territory described in the location certificate, including the premises in controversy, and prays judgment for the possession thereof, and for costs.

To this pleading of the appellee the appellants filed a replication, traversing all its material allegations, and denying, among other things, that, at the date of the appellants' location, the ground in controversy comprised a portion of the Ute Indian reservation, and that at the date of the appellee's location the ground in dispute was part and parcel of the unappropriated public domain.

Subsequently, a stipulation, signed by the attorneys of the contesting parties, was filed in the cause, conceding the truth of the allegations of the respective pleadings, and that both parties had complied with all the requirements of the law in respect to the location and development of their said claims, as set forth in their pleadings, save only the allegations that, at the time of their respective locations, the ground in controversy was a part of the unappropriated public domain open to location; and excepting, further, the right of the appellants, if entitled to locate a claim at all on said tract of land on the third day of September, 1872, to locate a claim of a greater width than 50 feet.

The next step in the cause was the filing of a motion, by the appellee, for judgment upon the pleadings, the stipulation of facts, and a disclaimer of the appellee filed upon the hearing of said motion. In the latter document the defendant...