Lincoln-Lucky & Lee Min. Co. v. Hendry

• Decision Date: 02 October 1897
• Citation: 50 P. 330,9 N.M. 149,1897 -NMSC- 019
• Parties: LINCOLN-LUCKY & LEE MIN. CO. v. HENDRY.
• Court: New Mexico Supreme Court

50 P. 330

9 N.M. 149, 1897 -NMSC- 019

LINCOLN-LUCKY & LEE MIN. CO. v. HENDRY.

Supreme Court of New Mexico

October 2, 1897

Error to district court, Santa Fé county; before Justice N. B Laughlin.

Action by Alexander M. Hendry against the Lincoin-Lucky & Lee Mining Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Warren Fergusson & Gillett, for plaintiff in error.

Neill B. Field, for defendant in error.

COLLIER J.

This was an action of ejectment, brought by the defendant in error against the plaintiff in error for the possession of a mining claim known as the "Anaconda Mine," situated in Santa Fé county, N. M., the facts in regard to which are sufficiently stated in the opinion. In the view that we take of this case, many questions which are pressed upon our attention in the briefs, and which were urged upon the oral argument, may, with entire justice to all parties, be left to be decided when they arise in a case where their determination is necessarily involved. One question of practice, however, should be passed upon, and that is whether or not there was error in the order of consolidation. It is insisted by plaintiff in error that the order of consolidation was prejudicial to it, and that such prejudice is affirmatively shown by the record, in that it appears that this plaintiff in error relied upon a defense entirely different from that relied on by the plaintiff in error Middleton in the other cases. We are, however, unable to discover any force in the contention, because we think that priority of possession was the one question in both cases. We think the right of courts to order the consolidation of causes in this territory in their discretion cannot be disputed, and that the exercise of such discretion is not subject to a reversal except in cases of palpable abuse thereof. Insurance Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909; Keep v. Railway Co., 10 F. 454. On the trial of this case the parties, by their respective counsel entered into a stipulation in writing as to the truth of certain facts, which, if material and relevant, tended to show that the ground in controversy was within the exterior boundaries of what was known as the "Canon Del Agua Land Grant," a private land claim confirmed by the congress of the United States in 1866 to one Jose Seraon Ramirez and his heirs, for which a patent was issued by the United States on the 1st day of July, 1875; that before the rights of any of the parties to this suit attached proceedings were begun in the district court, Santa Fé county, by the United States to cancel the said patent, and such course was had therein that the bill of complaint of the United States was dismissed. Upon appeal to this court the judgment of the district court was reversed and a decree was entered by this court on the 23d day of January, 1888, that said patent and survey upon which it was based, "be, and the same are hereby, respectively, forever annulled and set aside, and held for naught for any and all purposes whatsoever." Subsequently the case was taken on appeal to the supreme court of the United States, when the decree of the court was affirmed on the 14th day of November, 1892. ^[1] A resurvey of the grant known as the "Canon Del Agua Grant" was approved by the commissioners of the general land office on August 30, 1894, and on the 16th day of January, 1893, the commissioner of the general land office of the United States wrote an official letter to the surveyor general of the territory of New Mexico, in which he said, among other things: "No entries, filings, or locations of any description can be permitted upon the premises granted by congress or heretofore relinquished by the government to said Ramirez until the necessary resurvey has been made, has been accepted as correct by the land department, and become final under the rules as the basis of a new patent; and the lands found not to be included in the grant have been opened to disposition according to law." Defendant in error objected to the admissibility of the patent, and the trial court sustained the objection, saying: "I will sustain the objection made by the plaintiff (defendant in error) to the introduction of that testimony offered, and under the stipulation, and I will presume for this case only, and for the purposes of this case, that the land in question at the time of the location of the Anaconda and the Lee was public land, and subject to location as made or attempted to be made by the respective parties, and I will submit the issue to the jury on the right of possession and the matter of damages, whatever they may be. I think this will present, probably, a plainer issue to the jury than for them to consider anything else, and it will effectually dispose of the right of possession of the property at the time of the bringing of this suit in question." The effect of this ruling was to exclude from the consideration of the jury the patent issued by the United States, and all the stipulated facts, and to make the case turn entirely upon the question of priority of possession. Subsequent...