McConaghy v. Doyle

• Decision Date: 05 October 1903
• Citation: 75 P. 419,32 Colo. 92
• Parties: McCONAGHY v. DOYLE et al.
• Court: Colorado Supreme Court

75 P. 419

32 Colo. 92

McCONAGHY v. DOYLE et al.

Supreme Court of Colorado

October 5, 1903

Appeal from District Court, Teller County; Edward C. Stimson, Judge.

Action by J. M. Doyle and others against John McConaghy. From a judgment for plaintiffs, defendant appeals. Reversed.

Bruce Glidden and Potter & McCarthy, for appellant.

J Warner Mills, for appellees.

GABBERT J.

The subject-matter of controversy between the parties to this appeal is mining premises claimed by appellant as the Conejos, and the appellees as the Victor Addition lode. Appellees, as the owners of the Victor Addition brought suit against appellant, as defendant, in support of their adverse against the application of the latter for patent to the Conejos lode. From a judgment in favor of plaintiffs, the defendant appeals.

The boundaries of the respective claims are identical. The Conejos is the older location; having been located in November, 1893. There is no question about its validity originally. The only attack made upon it at the trial was that the assessment for 1895 had not been performed. The performance of the assessments for the subsequent years is not questioned. In February, 1896, the Victor Addition was located; the discovery and location being made upon tract C of a placer claim known as the 'Eldorado.' Application for patent on this placer was made on September 24, 1894, and thereafter prosecuted to completion. The patent therefor includes the tract upon which the discovery and location of the Victor Addition were made. The right so to do on the part of the claimants of the Victor Addition lode is asserted upon the ground that the vein upon which the discovery and location are based was known at the time of the application for patent upon the Eldorado placer. This proposition is controverted on the part of the claimant of the Conejos, the contention in his behalf being that the vein upon which the Victor discovery and location are based was not known at the time application for patent on the Eldorado placer was made. It is immaterial, therefore, whether the assessment was performed upon the Conejos for 1895 or not, if it should appear, as contended by counsel for appellant, that the vein which is the basis of the location of the Victor Addition lode was not known to exist at the time of the application for patent on the Eldorado, for the reason that if the location of the Victor Addition was of no validity, because made within the boundaries of a prior valid placer location, it could not prevail over the Conejos. The real question, therefore, presented for determination, is, what constitutes a 'known vein,' within the limits of a placer at the time application for patent therefor is made, when that question is a collateral issue between a placer and a subsequent lode location? This was one of the litigated questions determined below, and it becomes necessary to briefly notice the testimony bearing on this question, for the purpose of ascertaining whether or not it was sufficient to sustain the finding of the jury that the vein located by the Victor Addition, by virtue of which the premises in controversy are claimed by appellees, was known at the time application for patent was made upon the Eldorado placer.

Tract C of the placer in question, within the boundaries of which the Victor Addition discovery shaft was sunk, and location notice erected, is 20 feet square, and is located something over 200 feet south of the discovery shaft of the Conejos, and a little to the west of the center of the premises in dispute. There was testimony to the effect that the vein upon which the discovery and location of the Conejos is based passes through tract C, and may be the same vein disclosed in the discovery shaft of the Victor Addition; that a vein was disclosed within a few feet of the northwest corner of tract C of the placer; and that, at the time application for patent for the placer was made, there were indications of the outcrop of a vein within tract C. This vein, however, was not claimed as the Victor Addition, nor was any work done upon it until after the application for patent on the placer had been made. The shaft then excavated disclosed some mineral, but there is no testimony whatever of the existence of a vein within the limits of tract C, or that the vein upon which the Victor Addition claim was located contained or disclosed mineral of a quantity or quality which would justify its being operated as a mine. In short, the testimony is to the effect that while there may be evidence of the existence of a vein within the limits of tract C of the placer, and upon which the Victor Addition location is based, the shaft does not disclose, nor was any mineral in a vein within the limits of this tract ever disclosed, in quantity or value which would justify expenditure for the purpose of extraction.

Section 2333, Rev. St. U.S. [U. S. Comp. St. 1901, p. 1433], provides, in substance, that patent to a placer shall not convey title to veins included within the boundaries thereof known to exist at the time application for patent for the placer is made, but that unknown veins embraced within the limits of a placer pass to the placer patentees. Known veins are thus exempted from patent applications on placers by operation of law, but unknown veins are not. The purpose of this statute was twofold: (1) To prevent title to known veins from being obtained by placer patents; and (2) to protect the placer patentee in his title to all mineral and other deposits within the boundaries of his claim not known to exist at the time application for patent therefor was made.

The earlier decisions on the subject of what constitutes 'known veins' within the limits of a placer are not altogether clear or harmonious, but, without attempting to enter into any extended discussion of the question at this time, it is sufficient to say that it is now settled that, as between placer and subsequent conflicting lode locations, a known vein within the limits of a placer, when that question is raised collaterally, is one known to exist at the time of application for patent for such placer, and to contain minerals in such quantity and quality as to justify expenditure for the purpose of extracting them. Iron Silver M. Co. v. Mike & Starr G. & S. M. Co., 143 U.S. 394, 12 S.Ct. 543, 36 L.Ed. 201; Montana Central Ry. Co. v. Migeon (C. C.) 68 F. 811, affirmed in 77 F. 249, 23 C.C.A. 156; Brownfield v. Bier (Mont.) 39 P. 461; Casey v. Thieviege (Mont.) 48 P. 394, 61 Am.St.Rep. 511; U.S. v. Iron Silver M. Co., 128 U.S. 673, 9 S.Ct. 195, 32 L.Ed. 571; Largey et al. v. Black, 10 Land Dec. Dep. Int. 156;Butte & B. M. Co. v. Sloan (Mont.) 40 P. 217; 2 Lindley on Mines, § 781.

It is also settled that the burden of proof in such circumstances is upon the lode claimant to establish by clear and convincing testimony that the vein or veins which he claims are exempted from the placer application by operation of law are of the character which will render them known veins, as above defined. Mon. Central Ry. Co. v. Migeon, supra; 1 Snyder on Mines, § 666; Cripple Creek Gold Min. Co. v. Mt. Rosa Mining, Milling & Land Co., 26 Land Dec. Dep. Int. 622.

These decisions are based upon the proposition that one claiming land as a lode location, as against a prior placer location upon which patent has issued, must establish that the...