Lee v. Stahl

• Decision Date: 17 May 1886
• Parties: LEE and others v. STAHL.
• Court: Colorado Supreme Court

11 P. 77

9 Colo. 208

LEE and others v. STAHL.

Supreme Court of Colorado

May 17, 1886

Appeal from district court, Clear Creek county.

This action was brought by the appellee, Ernest Stahl, to recover the possession of the Lone Tree lode. His patent from the government, under date of the fifth of November, 1878 reciting entry at the local land-office at Central City Colorado, on the thirteenth day of April, 1873, shows his title in fee. The defendant Lee is the owner of the Argentine silver lode. His patent from the government is under date of the fifteenth of August, 1876, and recites an entry at the same local and-office, under date of July 3, 1875. The entry of the Argentine lode at the local land-office being subsequent to the entry of the Lone Tree lode, the latter survey (No. 262) is excepted from the defendant's patent. The language of the patent is: 'Excepting and excluding however, from these presents, all that portion of the surface ground herein described which is embraced by said surveys No 262, * * * as represented by yellow shading in the following plat.' The two locations cross each other at a sharp angle, near the eastern termini. The defendant struck a lode at or near the point of intersection by means of a cross-tunnel substantially at right angles with the Lone Tree location. From this point his tunnel runs south-westerly about 350 feet, following generally the course of the Lone Tree location, and running directly under the Lone Tree discovery shaft. It has an average depth of about 80 feet below the surface, and is, admittedly, within the exterior lines of the Lone Tree location, with the exception of a short distance at its south-western terminus. The plaintiff contends that this tunnel, in its entire length from the point where the lode was cut, is on the Lone Tree lode, having its apex within his side lines. The defendant contends that it is on the Argentine lode, and that its apex is at least partially within the side lines of the Argentine location. Trial by jury. Verdict and judgment for the plaintiff. Appeal.

J. E. Rockwell, J. B. Belford, and G. B. Reed, for appellants, Jerry Lee and others.

R. S. Morrison, C. C. Post, and John A. Coulter, for appellee, Ernest Stahl.

ELBERT J.

1. The testimony offered on behalf of the defendant, in support of his allegation that his tunnel is on the Argentine vein, is unsatisfactory, and in conflict with the preponderance of evidence. We nevertheless think that there is sufficient to have taken it to the jury, and that the court erred in instructing the jury that, 'under all the circumstances, they should find for the plaintiff.' After such an instruction, the subsequent submission of the case to the jury was practically nominal. A further objection to the instruction containing the foregoing direction lies in the fact that it was oral, and not in writing, as required by the statute. Montelius v. Atherton, 6 Colo. 224. Whether what is here denominated an 'instruction' comes within the technical meaning of the term we do not inquire. Courts should avoid a practice so obviously objectionable, independent of the statutory requirement.

2. In the case of Branagan v. Dulaney, 8 P. 669, (December term, 1885,) it is held that 'under sections 2322, 2336, Rev. St. U.S., when a junior mining location crosses a senior location, and the veins therein are cross-veins, the junior locator is entitled to all the ore found on his vein within the side lines of the senior location, except at the space of intersection of the two veins. In such a case a junior locator has a right of way for the purpose of excavating and taking away the mineral contained in the cross-vein.' This decision, rendered since the trial below, settles one of the principal points of contention involved in this case. The third and fifth instructions given by the court to the jury on behalf of plaintiff are in conflict with the doctrine announced. They, in effect, instructed the jury that the senior locator was entitled to the cross-vein to the extent that it was within the side lines of his location.

3. In view of a new trial, we notice question made by defendants' counsel, that the court below erred in holding the Lone Tree patent the senior title, the entry being senior. The claim is that the discovery and location of the...