Larkin v. Upton

• Decision Date: 14 March 1892
• Citation: 36 L.Ed. 330,144 U.S. 19,12 S.Ct. 614
• Parties: LARKIN et al. v. UPTON et al
• Court: U.S. Supreme Court

144 U.S. 19

12 S.Ct. 614

36 L.Ed. 330

LARKIN et al. v. UPTON et al.

March 14, 1892.

STATEMENT BY MR. JUSTICE BREWER.

Prior to March, 1882, plaintiffs in error, defendants below, filed their application in the United States land-office at Helena, Mont., for a patent to the Smelter lode claim. Defendants in error plaintiffs below, 'adversed,' claiming as owners of a conflicting location, called the 'Comanche Lode Claim,' and thereafter commenced this action in the district court of the second judicial district of the territory of Montana to determine the right of possession to the disputed territory,—an area, as alleged, of 7.79 acres. There were two trials in the district court, in each of which the verdict and judgment were in favor of the plaintiffs. The first judgment was reversed by the supreme court of the territory, and a new trial ordered. 5 Mont. 600, 6 Pac. Rep. 66. The second judgment was affirmed by that court, (7 Mont. 449, 17 Pac. Rep. 728,) which judgment of affirmance was brought by writ of error.

M. Kirkpatrick and W. M. Stewart, for plaintiffs in error.

M. F. Morris, S. S. Burdett, and W. W. Dixon, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

The first judgment was reversed by the supreme court of the territory on the ground that there had been no discovery of a vein or lode within the Comanche territory at the time of the location of that claim. Immediately north of the Comanche was the Shannon claim, which, at the time of the commencement of this suit, had been surveyed and patented; and it appears from the opinion of the supreme court that at the first trial the testimony showed that the discovery shaft of the Comanche was wholly within the limits and boundaries of the Shannon claim. The contest at the second trial was as to the position of that discovery shaft, and of the apex of the vein disclosed by it. Unquestionably, if not on the boundary line between the Comanche and Shannon claims, the shaft was very close to it. The testimony of the defendants tended to show that it was wholly on the Shannon claim; that of the plaintiffs, that it was partly on both claims, extending some 19 inches in width into the Comanche claim, and that the apex of the vein was within the limits of these 19 inches.

The jury returned a general verdict for the plaintiffs, and also made certain findings of fact at the instance of the respective parties. It is doubtless true that, where special findings are irreconcilable with a general verdict, the former control the latter; and upon this rule plaintiffs in error rely for a reversal. It is also true that, if the findings are fairly susceptible of two constructions, one upholding and the other overthrowing the general verdict, the former will be accepted as the true construction, because it will not be presumed that the jury had different intentions in the findings and in the verdict. Railway Co. v. Ritz, 33 Kan. 404, 6 Pac. Rep. 533. So that, if the meaning of these findings be doubtful, we should adopt that which conforms to and upholds the verdict.

It is unquestioned law that the top or apex of a vein must be within the boundaries of the claim, in order to enable the locator to perfect his location, and obtain title. Turning to the findings, these three are all that are pertinent to this question, two in response to interrogatories submitted by the plaintiffs, and the other to one submitted by the defendants:

'(1) Did the locators of the Comanche lode claim, prior to the location of said claim, discover in the shaft claimed by them as discovery shaft a vein or crevice of quartz or ore, with at least one well-defined wall on a lode or vein of rock in place bearing gold, silver, or other valuable mineral deposits?

'Answer. Yes.

'(2) If your...