Lockhart v. Wills
| Decision Date | 02 October 1897 |
| Parties | LOCKHART v. WILLS et al. |
| Court | New Mexico Supreme Court |
Error to district court, Bernalillo county; before Justice N. C Collier.
Ejectment by Henry Lockhart against J. Q. Wills and others. The court directed a verdict for defendants, and plaintiff brings error. Reversed.
Warren Fergusson & Gillett, for plaintiff in error.
Childers & Dobson, for defendants in error.
This is a suit in ejectment, brought here from the district court of Bernalillo county, in the Second judicial district. At the conclusion of the evidence, the court, at the instance of the defendants, directed a verdict in their favor. From this action of the court in giving such instruction, and taking the case from the jury, this writ of error is prosecuted.
The errors assigned are: (1) The action of the court in refusing to submit the cause to the jury under the evidence admitted. (2) The improper exclusion of certain evidence offered by the plaintiff, and the admission of certain evidence on behalf of the defendants.
The first question, therefore, is, did the court commit error in refusing to submit the cause to the jury under all of the evidence which it had allowed to be offered in the case? The court has the right, and it is its duty, to withdraw a case from the jury, and direct a verdict if the evidence in the case is undisputed, or if the evidence is so conclusive that the court would set aside a verdict if rendered in opposition to it. Richardson v. City of Boston, 19 How. 263; Railroad Co. v. Converse, 139 U.S. 469, 11 S.Ct 569; Elliott v. Railway Co., 150 U.S. 245, 14 S.Ct. 85. Does the case before us come within either of the rules above stated?
The testimony offered in the case, and submitted by the court to the jury, tended to establish that the plaintiff, one Charles Pilkey, and one Benjamin Johnson entered into a written agreement, signed and executed by each of them, on the 7th day of May, A. D. 1893, whereby it was agreed that the said first party, Charles Pilkey, should prospect for and locate such veins, lodes, and placers as he might discover or know the existence of, containing valuable ores and minerals, in the name of, and for the joint benefit of, all the parties hereto, in the proportion of a one-third interest to said first party, Charles Pilkey, and an undivided two-thirds interest to said second parties, being the plaintiff and the said Johnson. It was further provided in said agreement that the said second parties, to wit, the plaintiff and said Benjamin Johnson, should furnish certain supplies and material to the said Pilkey while he was engaged in prospecting, locating, and working said mines, which was fully set forth in the agreement. The execution of this agreement is admitted by both the plaintiff and the defendants. It is further established by the testimony that, under this agreement, the said Pilkey, after having received his supplies from the plaintiff and the said Johnson, went into the Cochiti mining district, and located certain mines therein, among which is the claim in controversy in this suit, known as the Sampson location. It is established by the testimony, both by the plaintiff and the defendants, that this location of the Sampson mine was made on the 10th day of July, 1893, by posting a notice in a conspicuous place upon said claim, containing a description of the grounds located, and signed by the plaintiff, Benjamin Johnson, and Charles Pilkey. The evidence also tended to show that the plaintiff in this cause and the said Benjamin Johnson complied with their part of the said agreement, by furnishing the supplies and material to the said Pilkey while he was engaged in such work of prospecting for and locating said property.
The testimony of the plaintiff tended to establish that he visited the said property after it was located, and did some prospecting thereon; that it was arranged between him and Pilkey that the assessment work should be done before the expiration of the 90 days from the date of the posting of said notice; that he had various assays made from samples taken from the ledge; that he had some correspondence with Pilkey, and gave directions and instructions to Pilkey, from time to time, to have the assessment done; that Pilkey was on or near the ground, doing the assessment upon other property which he had located under the said agreement on behalf of the plaintiff, Johnson, and himself, and it was understood that Pilkey should complete this assessment within the time provided by law. His testimony further tended to establish that he, with Pilkey, or through Pilkey, had continued in possession of this ground up to the time that it was taken possession of by the defendants, and located by them; that he never had any intention whatever of giving up or abandoning the ground, but always intended to hold and work it. The testimony of another witness in the case tended to show that Pilkey was in possession of the ground in conjunction with and for the plaintiff, Lockhart, and Johnson and himself. The contention of the defendants is that no work had been done upon this mine after its location and after the posting of the notice, so as to hold it under the laws of the United States; and their contention is that the plaintiff had wholly abandoned the claim prior to the time the defendants took possession, and located the ground under the name of the Washington Mine.
The testimony on behalf of the defendants tended to show that after the mine was located and the notice posted, no assessment work was done upon the property; that no 10-foot hole was sunk; that the claim was not monumented in the manner required by law; and that, in fact, no work was done thereon by either Pilkey or the plaintiff, Lockhart. The testimony further tended to establish that about the 3d or 5th of October, 1893, 5 or 7 days before the expiration of the 90 days within which they were required to do the work and record the notice, under the laws of the United States, Pilkey notified the plaintiff and Johnson that he would have nothing further to do with the property, and would abandon...
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