Lowe v. Long

• Decision Date: 12 December 1896
• Parties: LOWE v. LONG
• Court: Idaho Supreme Court

47 P. 93

5 Idaho 122

LOWE v. LONG

Supreme Court of Idaho

December 12, 1896

NEW TRIAL.-Where the record does not show the grounds upon which a new trial was granted, and no error warranting a new trial is apparent from the record, the order granting a new trial will be reversed.

PLEADINGS-AMENDMENT OF.-Where, during the progress of the trial the defendant asks leave to amend his answer, and it is apparent that such amendment will entirely or materially change the issues, the granting of such leave is a matter of discretion with the trial court, and to the granting of which the court may impose terms.

(Syllabus by the court.)

APPEAL from District Court, Lemhi County.

Reversed.

Reeves & Terrell and John A. Bagley, for Appellants.

The complaint alleges ownership and possession to two certain mining claims, known as the Monolith and Golden Crest. The defendant admits that the plaintiffs have been and now are in the possession of two certain quartz mining claims known as the Monolith claim and the Golden Crest claim, situated in the Mineral Hill mining district, county of Lemhi, state of Idaho. If this is true, then but one finding could be made and that is that appellants are the owners of the ground covered by said Golden Crest claim, being fifteen hundred feet in length by six hundred feet in width, or three hundred feet on each side of the center of the vein; then the question under these pleadings presented for hearing and trial is as to whether or not the workings of respondent were within the Golden Crest claim, the boundary and extent of which is admitted. A fact admitted by the pleadings cannot be controverted by proof on the trial. (Bradbury v Cronise, 46 Cal. 287; Ortega v. Cordero, 88 Cal. 221, 26 P. 80.) The facts admitted should not be submitted to the jury; they are purely matters for the court. (Travis v. Hicks, 41 Cal. 123.)

F. J. Cowan and R. P. Quarles, for Respondent.

Appellants claim that the answer admits that the Golden Crest claim extends three hundred feet in width on each side of the center of the vein. This contention is not correct. The law requires mining claims to be marked on the ground by monuments so that the exterior limits can be readily traced on the ground. These monuments must be permanent objects. The prospector is limited to fifteen hundred feet in length along the vein and to three hundred feet on each side of the middle of the vein, but may locate a less quantity, and is confined to boundaries as established by him, although he locates less ground than he is entitled to locate. There is no better established rule of law than that courses and distances, in descriptions of realty, are controlled by monuments marking the boundaries. On this point we cite a few decisions by the supreme court of California, deeming it unnecessary to cite other authorities on this point: (Anderson v. McCormick, 18 Or. 301, 22 P. 1062; Beaudry v. Doyle, 68 Cal. 105, 8 P. 694; Castro v. Barry, 79 Cal. 443, 21 P. 946; Hubbard v. Dusy, 80 Cal. 281, 22 P. 214; Adair v. White, 85 Cal. 313, 24 P. 663; Tognazzini v. Morganti, 84 Cal. 159, 23 P. 1085; Northern R. R. Co. v. Jordan, 87 Cal. 23, 25 P. 273; Anderson v. Richardson, 92 Cal. 623, 28 P. 679; Stoll v. Beecher, 94 Cal. 1, 29 P. 327.) It was unnecessary to deny in the answer that the Golden Crest claim was six hundred feet in width, or that it was three hundred feet on either side of the middle of the vein. The complaint shows that this mining claim has "established lines." Facts are affirmatively stated in the answer showing that the working of the defendant was not within these "established lines," but outside of them. This tendered the issue on the vital question in the case and was sufficient. (Hill v. Smith, 27 Cal. 476; Perkins v. Brock, 80 Cal. 320, 22 P. 194; Churchill v. Baumann, 95 Cal. 541, 30 P. 770.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

This is an appeal from the order of the district court sustaining and allowing a motion for a new trial. The plaintiffs brought action to restrain defendant from entering and working certain mining ground claimed by plaintiffs. The complaint sets forth the claim of plaintiffs with sufficient certainty and the answer admits the same, but denies that defendant has trespassed on the claim of plaintiffs. The only question, as appears from the record, that was material in the case, was as to the...