McCaig v. Bryan

• Decision Date: 18 October 1887
• Citation: 10 Colo. 309,15 P. 413
• Parties: McCAIG and another v. BRYAN.
• Court: Colorado Supreme Court

15 P. 413

10 Colo. 309

McCAIG and another v. BRYAN.

Supreme Court of Colorado

October 18, 1887

Commissioners' decision. Appeal from district court, Clear Creek county.

H. W. Hobson and Luke Palmer for appellant.

Morrison & Fillius for appellees.

RISING C.

Appellant as owner of the No. 4 lode mining claim, applied for a patent therefor, and appellees, as owners of the Apex lode mining claim, filed their adverse claim, under the provisions of the statutes of the United States, to that portion of said No. 4 claim which was in conflict with said Apex claim; and within the time required by law, appellees brought this action in support of such adverse claim. The plaintiffs predicate their right to the possession of the premises in controversy upon a full compliance by them with all the requirements of the laws of the United States, and of the state of Colorado, relating to the location of lode mining claims, in the location by them of the Apex lode, and in their complaint allege such compliance, and allege the wrongful entry of defendant upon the premises in controversy, and the wrongful withholding of the same from plaintiffs. The defendant predicates his right to the possession of the premises in controversy upon a full compliance by him with all of the requirements of said laws, in the location and holding of the No. 4 lode by his grantor, prior to the said location of the Apex lode, and by himself as purchaser of said lode, and in his answer to the complaint alleges such compliance. All the material allegations of the answer are put in issue by plaintiffs' reply thereto. There is no denial in defendant's answer of any of the allegations of the complaint relating to the compliance by plaintiffs with all the requirements of the law in the location of the Apex lode.

Upon the trial plaintiffs produced evidence in support of the allegations of their complaint, tending to show a performance of all the necessary acts to make a location of the Apex lode mining claim, and showing the discovery of the lode on the fourteenth day of June, 1882, and the recording of a certificate of location on the twenty-first day of June, 1882. Defendant did not offer any evidence to rebut the evidence of plaintiffs' location of the Apex lode, but produced evidence in support of the allegations of his answer, tending to show a performance of all the necessary acts, except the posting of the proper notice at the point of discovery, to make a location of the No. 4 lode mining claim, and showing the survey of the lode on the eighth day of April, 1880, and the recording of a certificate of location on the twelfth day of April, 1880. Defendant also introduced evidence for the purpose of showing the performance by him, as the purchaser of the No. 4 lode, of the annual labor required by law for the year 1882, and prior to the discovery of the Apex lode by the plaintiffs. The plaintiffs introduced evidence in rebuttal, tending to show that defendant's grantor, in attempting to locate the No. 4 lode, failed to sink the discovery shaft upon the lode to the depth of at least 10 feet from the lowest part of the rim thereof at the surface.

For the determination of this case, it is only necessary to consider the first and third assignments of error.

The first assignment is that the court erred in giving the following instruction to the jury: 'The court instructs the jury that the plaintiff, to recover in this cause, is bound to prove-- First, that the Apex lode was located by sinking a shaft at least ten feet from the lowest part of the rim at the surface, showing a well-defined crevice; posting at the discovery shaft the usual notice; placing upon the corners and center of the side lines, stakes, six in all, marked in the usual manner; and record of the claim. And if you find that plaintiffs prove this, it then devolves upon the defendant to prove an older location in the same manner; so that the oldest valid claim should hold the ground. This the defendant seeks to do by means of the No. 4 lode; but if you believe-- First, that the discovery shaft of the No. 4 lode was not ten feet deep from the lowest point of the rim at the surface at the time of the discovery of the Apex lode in June, 1882, then the No. 4 location is invalid and void; and, second, if said No. 4 did not at that time show a well-defined crevice, it is void.' This instruction is clearly erroneous in several particulars. The statute requires the locator of a mining claim to post at the point of discovery a sign, or notice, containing the name of the lode, the name of the locator, and the date of discovery. The instruction undertakes to tell the jury what the locator is required to do to make a location, and fails to state the requirements of the law correctly. What has been said in relation to the notice is applicable to the instruction as to the marking of the stakes.

That portion of the instruction treating of the record of the claim is too indefinite to mean anything, except that some kind of a record is required. What must be recorded, and when the record must be made, and where, are questions upon which the jury should have been instructed; but upon these questions the jury is left to determine the law as well as the fact. The...