Lee v. Stahl

• Decision Date: 13 September 1889
• Citation: 22 P. 436,13 Colo. 174
• Parties: LEE et al. v. STAHL.
• Court: Colorado Supreme Court

22 P. 436

13 Colo. 174

LEE et al. v. STAHL.

Supreme Court of Colorado

September 13, 1889

Appeal from district court, Jefferson county.

For opinion on former appeal, see 11 P. 77.

Syllabus by the Court

1. When the law governing a case has been once declared by the opinion of an appellate court on a direct appeal or writ of error, such opinion, on the retrial of the same case upon the same state of facts, is higher authority than stare decisis; it is res judicata, so far as the particular action is concerned.

2. A true cross-vein is excepted out of the grant of the patent by virtue of section 2336, Rev. St. U.S. And, whether a junior or a senior location, it is not affected by failure to adverse, except at the point of actual lode intersection. But section 2344 does not ex proprio vigore reserve out of the grant rights other than cross-veins acquired prior to the act of 1872, but secures the protection of such rights to those who avail themselves of the adverse procedure prescribed by the act itself.

3. The crossing of lodes does not mean the crossing of two patents but the actual crossing of the two veins themselves.

4. Veins which unite, but do not cross each other, are within the exception of section 2336 when they unite on the 'dip,' or in their downward course; but not when they unite on the 'strike,' or on their horizontal extension. The word 'below,' in section 2336, does not mean 'beyond.'

5. It was the design of the act of 1872 (sections 2325, 2326, Rev St. U.S. ) to have all conflicts, so far as practicable settled by the issuance of the patent through the adverse proceedings therein provided for.

Belford & Wickoff, for appellants.

C. C. Post and R. S. Morrison, for appellee.

ELLIOTT, J.

Ernest Stahl, the plaintiff below, commenced this action in 1878 alleging his ownership in fee of the Lone Tree lode, and complaining that the defendants had ousted him therefrom, and still unlawfully withhold the possession thereof. The case has been several times tried in the district court, and this is the second time it has been before this court on appeal. The plaintiff's patent from the United States to the Lone Tree lode shows the date of entry at the land-office to have been April 30, 1873. Defendants' patent to the Argentine shows the date of entry to have been July 3, 1875. Defendants claim to have made the discovery and location of the Argentine in 1865, prior to the discovery and location of the Lone Tree, and to have complied with all the laws, state and federal, and all the local rules and regulations respecting such locations; and that the vein of the Argentine is the premises from which plaintiff claims to have been ousted. This claim was denied by plaintiff. The territory described in the two patents cross each other; but whether or not there is an actual crossing of the two veins within the limits where the two patents so cross each other was the principal question of fact in controversy on the trial. Defendants did not adverse plaintiff's application for a patent.

This action involves the construction of certain sections of the act of congress of May 10, 1872, relating to mineral lands of the United States, and particularly sections 3, 6, 7, 14, and 16, which are here referred to by number as they appear in the United States Revised States, to-wit: Section 2322, which provides, in substance, that locators of mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge situated on the public domain, their heirs and assigns, where no adverse claim exists on May 10, 1872, so long as they comply with the laws of the United States and with local regulations governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges, throughout their entire depth, the top or apex of which lies inside of such surface lines, extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. Also sections 2325 and 2326, which prescribe the manner in which patents may be obtained for lands containing valuable deposits, and for settling conflicting or adverse claims to any such locations. Also section 2336, which provides that, 'where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purposes of the convenient working of the mine. And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.' Also section 2344, which provides that 'nothing contained in this chapter shall be construed to impair in any way rights or interests in mining property acquired under existing laws.'

As we understand the views of counsel, it is contended on behalf of plaintiff that defendants, though they may have the prior location, yet, not having adversed plaintiff's application for a patent, they have forfeited all their rights within the surface lines of plaintiff's location while in behalf of defendants it is claimed that their discovery and location, being prior to that of plaintiff, and prior to the passage of the act of May 10, 1872, all their rights and interests are saved by section 16 of said act. Section 2344, supra. This latter view seems to be supported by the opinion of the supreme court of California in the case of Mining Co. v. Spring, 59 Cal. 304. But this court, in Branagan v. Dulaney, 8 Colo. 408, 8 P. 669, as well as on the former appeal in this case, (Lee v. Stahl, 9 Colo. 208, 11 P. 77,) has announced a doctrine somewhat different from either of the foregoing views. The former opinion in this case should now be regarded as 'the law of the case,' at least in this court, so far as it is applicable to the matters assigned for error on this appeal. We would not feel warranted in departing from it in determining the rights of the parties to this action. When the law governing a case has been once declared by the opinion of an appellate court on a direct appeal or writ of error, such opinion, on the retrial of the same case, upon the same state of facts, is higher authority than the rule of stare decisis; it is generally regarded as res judicata, so far as the particular action is concerned. Davidson v. Dallas, 15 Cal. 75; Tunnel Co. v. Stranahan, 21 Cal. 548. See opinion of Mr. Justice BELFORD in Mining...