Lucky Four Gold Min. Co. v. Bacon

• Decision Date: 05 March 1917
• Docket Number: 8674.
• Citation: 163 P. 862,62 Colo. 342
• Parties: LUCKY FOUR GOLD MINING CO. v. BACON.
• Court: Colorado Supreme Court

163 P. 862

62 Colo. 342

LUCKY FOUR GOLD MINING CO. v. BACON.

No. 8674.

Supreme Court of Colorado, En Banc.

March 5, 1917

Error to District Court, La Platta County; W. N. Searcy, Judge.

Action by W. S. Bacon against the Lucky Four Gold Mining Company. Judgment for plaintiff, and defendant brings error. Reversed with instructions.

Ritter & Buchanan, of Durango, for plaintiff in error.

Russell & Reese, of Durango, for defendant in error.

SCOTT J.

This is an action commenced by the defendant in error in support of his adverse claim. The plaintiff in error had made its application for patent to the 'May B.' lode, the defendant in error claimed that portion of the territory of the 'May B.' lode in conflict with the 'W. C.' lode mining claim. During the hearing the defendant below by permission of the court filed its supplemental answer, in which it was alleged:

'That since the institution of this action, and since the filing of the answer of the defendant herein, the patent proceedings and the application for patent referred to in the complaint and answer in this case, heretofore filed herein, as having been instituted and pending in the United States land office at Durango, Colo., have been abandoned and dismissed, so far as the said May B. lode mining claim is concerned, and that there is not now pending any application for patent by or on behalf of this defendant for said May B. lode or for any part of the ground in conflict in this proceeding, or for any part of the ground embraced within the exterior limits of said W. C. lode, in the complaint of the defendant set up.'

The plaintiff offered testimony in support of his adverse claim. The defendant offered no testimony. The court in the following language, instructed the jury to render a verdict in favor of the plaintiff:

'In this case the defendant having withdrawn its application for patent in the United States land office upon the May B. lode claim, and the plaintiff having waived any right he might have to procure patent to the ground in conflict under such proceedings in the land office, and under such proceedings in the land office, and under the verdict which may be herein rendered, and the defendant herein having elected to offer no evidence in opposition to the evidence of the plaintiff, the court, therefore, under the law instructs you and directs you to make and return a verdict in favor of the plaintiff as to the ground in conflict between the W. C. lode mining claim and the May B. lode mining claim, a form of which verdict is herewith submitted to

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