Little Dorrit Gold Min. Co. v. Arapahoe Gold Min. Co.

• Decision Date: 01 December 1902
• Parties: LITTLE DORRIT GOLD MIN. CO. v. ARAPAHOE GOLD MIN. CO.
• Court: Colorado Supreme Court

71 P. 389

30 Colo. 431

LITTLE DORRIT GOLD MIN. CO. v. ARAPAHOE GOLD MIN. CO.

Supreme Court of Colorado

December 1, 1902

Appeal from district court, Teller county.

Action by the Arapahoe Gold Mining Company against the Little Dorrit Gold Mining Company. From a judgment in favor of plaintiff defendant appeals. Affirmed.

George Stidger and George S. Redd, for appellant.

A. B Seaman and H. S. Silverstein, for appellee.

GABBERT J.

The subject--matter of controversy is the conflict between the Wild Cat and Dorrit lode mining claims. The former is owned by appellee, and the latter by appellant. The Dorrit Company applied for a patent upon its claim, which was adversed by the Arapahoe Company, as the owner of the Wild Cat. The latter company brought an action in support of its adverse. From a judgment in favor of plaintiff, defendant appeals.

August 3, 1891, the Wild Cat was regularly located, and all steps taken necessary to perfect a valid location. In September 1895, the owners of the Wild Cat and other claims, known as the 'Shira,' 'Oscar D.,' and 'Hog Eye,' pooled their interests, and conveyed to a trustee, who applied for a patent for the three claims last named. The Wild Cat conflicted with these claims, and, in the application for patent first made, no part of this conflict was excluded; but later, and before entry, a tract 50 feet square, which included the discovery of the Wild Cat, was excepted. This tract, though located within the boundaries of the Shira lode as patented, was excepted from that patent as part of the Wild Cat. In December, 1895, the Dorrit was located on that part of the Wild Cat embraced within its boundaries, not included in the patent to the Shira and the other two claims named, or the tract embracing the Wild Cat discovery shaft. Prior to the application for patent, some development work had been done on the Wild Cat, near its north end, upon the ground which was afterwards patented to one or the other of the three claims mentioned. It is claimed by counsel for appellant that the action of the owners in embracing in the application for patent that part of the Wild Cat which included the discovery shaft, and permitting the workings at the north end to be patented to their other claims, amounted to an abandonment instanter of that portion of the Wild Cat which has been located as the Dorrit, and that after this action they could not continue to hold the premises in dispute as part of the Wild Cat by virtue of its original location. The theory of counsel who tried the case on behalf of appellant in the district court seems to have been that the acts which counsel now claim amounted to an absolute abandonment of the territory embraced within the limits of the Wild Cat lode, as a part of the Dorrit, was that these acts might be considered as evidence of abandonment of that territory. After the jury had retired, they returned into court and requested the trial judge to advise them whether, as a matter of law, the taking in of the Wild Cat workings by the amended survey of the Shira lode was an abandonment of the remainder of the Wild Cat claim. Counsel for the Dorrit Company then asked the court to instruct the jury to the effect that the mere fact that a part of the ground embraced within the Wild Cat was included in the amended survey of the Shira lode, or that a part of the Wild Cat was patented to the Shira and other claims, would not amount to an abandonment of the remainder of the Wild Cat, but were circumstances tending to establish an abandonment of that part of the Wild Cat lode in controversy, which it was proper for the jury to consider as bearing on that subject. The court refused to give the instruction requested, but, on its own motion, gave one which substantially covered the propositions embraced in that asked by counsel for the defendant. The theory of counsel for defendant, according to the instruction requested, was that the acts of the owners in patenting a part of the Wild Cat lode, and originally including in the application for patent the ground which embraced the discovery shaft (which was subsequently excluded), was merely evidence of, instead, as they now claim, an absolute abandonment of the ground in controversy. The court adopted their theory in answering the question of the jury, and whether right or wrong is wholly immaterial, because appellant is bound by the theory which its counsel advocated, and which the court adopted. De St. Aubin v. Marshall Field & Co., 27 Colo. 414, 62 P. 199. None of the questions upon which it is now sought to predicate an absolute abandonment of that part of the Wild Cat in dispute, as well as the claim now made by its segregation into distinct tracts the ground claimed by the Dorrit became subject to location, were raised in the court below. To each of these propositions the general, but not inflexible, rule applies, that a court of review will not pass upon questions which the trial court was given no opportunity to decide.

In 1897 the trustee under the pool contract conveyed the Wild Cat and patented claims to the plaintiff. It is claimed by defendant that no assessment work was performed upon the Wild Cat for the years 1892-93, and that in 1894 only an affidavit of intention was filed. As we understand the argument of counsel, it is contended that the failure to do the assessment work for the years mentioned rendered the Wild Cat subject to location. This claim is without...