McEvoy v. Hyman

• Citation: 25 F. 596
• Parties: McEVOY and others v. HYMAN.
• Decision Date: 07 December 1885
• Court: U.S. District Court — District of Colorado

25 F. 596

McEVOY and others v. HYMAN.

United States Circuit Court, D. Colorado.

December 7, 1885

Patterson & Thomas, for plaintiffs.

H. M Teller and Charles J. Hughes, Jr., for defendant.

HALLETT J.

Ejectment to recover a mining claim called 'Little Giant,' located by plaintiffs on the public lands, in the month of January, 1880. Defendant asserts title to part of the same ground under another location made in the month of October 1879, and called 'Durant.' As it is of earlier location, the latter must be of superior force, if it was regularly made and properly maintained to the time this suit was brought. That the locators of the Durant went upon the ground in August, 1879, and opened the vein in the manner and to the extent prescribed by statute is fully shown. It seems that the vein crops out in places on the surface of the mountain in a way to show it is a strike for a long distance. Before August, 1879, two locations had been made on the vein in the lower part of the mountain; of these locations, the one furthest north was made by the locators of the Durant and called '1,001.' Following that in a southerly direction was the Spar claim, located by Philip W. Pratt and others. Near the southerly end of the Spar claim the vein came to the surface, and there, with the consent of the owner of the Spar, the locators of the Durant made their discovery opening, a cut 13 feet or more in depth. To enable the Durant men to put their discovery in that place, the Spar owners gave them permission to move the Spar stakes to the north, so as to exclude from the Spar claim the ground where the discovery cut of the Durant was made; and there is evidence to the effect that this was done. Some witnesses, however testify that the Spar stakes remained in their original position during the following winter, and perhaps a longer time.

The circumstance that the Spar people did not afterwards make claim to that part of the vein, and excluded it from their application for patent, sufficiently proves that they had relinquished it to the locators of the Durant; and whether the Spar stakes were reset in the fall of 1879 is not, under the circumstances disclosed by the evidence, an important fact in determining the rights of parties to this controversy. The Spar location was not then complete; no record had been made of or concerning it, and the change of lines did not encroach on territory previously appropriated by others. When they first entered on the ground, the locators of the Little Giant had actual notice of the Durant location in a way to put them upon inquiry touching its force and validity, and they openly and anxiously sought to find some defect in it. Under these circumstances, if they failed to make full inquiry, or too readily accepted the position of the Spar stakes as evidence of invalidity in the Durant claim, they cannot now be heard to say that they were misled to their prejudice. It may be only a question of fact whether the Durant location was founded on a discovery and work done within the limits of the Spar claim; but if it is more, and the plaintiffs could, under some circumstances, say that they were misled by the position of the Spar stakes, it cannot be so here. Inquiry of the Spar owners, the parties chiefly concerned in any attempt of others to take away Spar ground, would have set the plaintiffs right; and the omission to make such inquiry was of their own negligence. Assuming that the discovery cut of the Durant was, by the relinquishment of the Spar owners, in ground free and open to occupation, the next question in the order of objections made by plaintiffs is whether that claim was properly marked on the ground. On this point there is a great mass of testimony from both parties; on behalf of defendant, to the effect that stakes were properly set as required by the statute of the state (Gen. St. 723) in the autumn of 1879, when the location was made; that these stakes were seen by disinterested parties in the same year, and after the locators of the Durant had departed from the district, and by other persons in the spring and summer of the year 1880; and the stake at the south-east corner was found when the survey was made, in the month of May, 1881. On behalf of plaintiffs the testimony is that diligent search was made in the direction in which the claim was supposed to extend, by quite a number of persons, at various times during the year 1880, and no stakes could be found. In this conflict of testimony, it is only necessary to say that the weight is with the defendant. Assuming that all the witnesses were equally worthy of credit, those who testify affirmatively that they put the stakes in position, or that they saw them in place, must be taken to have better knowledge of the subject than those who say that the stakes could not be found. It appears that some of the witnesses who were unable to find stakes examined the ground in winter, when the snow must have obstructed the view, and the circumstances attending the inspection of others may not have been favorable to a correct result. Upon the evidence, I conclude that the boundary stakes of the Durant were properly set when the location was made.

As the Little Giant was located in January following, no question is presented as to diligence on the part of the locators of the Durant in keeping the stakes in position. Whatever the duty of a locator of a mining claim as to maintaining his stakes, having set them up in the autumn, he cannot be expected to renew them in January following.

In the course of testimony at the trial, a question was made whether the notice posted at the discovery cut of the Durant gave the direction of the vein; but it was conceded in argument that the statute did not require it. The notice at all times maintained at the discovery cut seems to have been full and complete under the statute, and no point is now made against it. The chief objection to...