McFeters v. Pierson

• Decision Date: 17 October 1890
• Citation: 24 P. 1076,15 Colo. 201
• Parties: McFETERS v. PIERSON et al.
• Court: Colorado Supreme Court

24 P. 1076

15 Colo. 201

McFETERS v. PIERSON et al.

Supreme Court of Colorado

October 17, 1890

Error to district court, Ouray county.

This was an action brought by Pierson and others, plaintiffs against McFeters and others, defendants. The complaint alleges, inter alia, 'that plaintiffs are, and ever since the 12th day of October, 1886, have been, the owners of, and in the actual occupation and possession of the John A. Logan lode mining claim, situated in Red Mountain mining district, county of Ouray, and state of Colorado location certificate whereof is duly recorded in book 29, on page 595, records of said Ouray county; that at divers times between the 20th day of October, 1886, and the 8th day of December, 1886, the defendants willfully and unlawfully entered upon said above-described premises, (the same being then in the possession of plaintiffs, as aforesaid,) and cut down and carried away trees and timber belonging to plaintiffs, standing and growing and being thereon, to the value of six hundred dollars, and converted and disposed of the same to their own use.' The answer denies that plaintiffs were the owners of said mining claim, or that they, or either of them, were in the actual occupation and possession thereof as alleged in the complaint. The answer also traversed the entry, trespass, and damages, as alleged. The jury returned a verdict against defendant McFeters assessing the damages at $500. Judgment was rendered against McFeters on this verdict. The other defendants were discharged. McFeters brings the case to this court by writ of error.

Syllabus by the Court

1. A mining claim located on the public domain is real property, and the subject of complete ownership as a claim, and the locator thereof, or his successor in interest, having fully complied with the terms prescribed by congress for acquiring title thereto, is, so long as he continues such compliance, the owner of the claim for all practical purposes.

2. The term 'mining claim' means a parcel of mineral land containing precious metals, but is often used, in mining parlance, as synonymous with the term 'location,' and is applied to mineral lands located upon the public domain according to established rules, as under the act of congress antecedent to the entry for the government patent.

3. The term 'owner,' when used alone, imports an absolute owner, or one who has complete dominion of the property owned, as the owner in fee of real property; but its meaning is varied according to the connection in which it is used, and is to be understood according to the subject-matter to which it relates.

4. A person having title to occupy a mining claim within any mining district of this state may maintain an ordinary civil action against any one trespassing thereon; and such action lies the injury to the growing timber, as well as to the mineral product of the soil itself. To maintain such action, it is not necessary that the owner of the mining claim should have an actual pedies possessio thereof. If he has complied in good faith with the requirements essential to a valid location, he is, so long as he continues such compliance, entitle to the exclusive possession and enjoyment of the claim against the whole world.

5. In a civil action for injuries to a mining claim, an averment by plaintiff that he is the owner, and in the actual possession, of the claim, describing it by name as situate in a certain mining district, county, and state, and that the location certificate thereof is duly recorded in the records of said county, giving book and page, does not necessarily import that plaintiff is the owner in fee of the claim, and he is not bound to prove his title by patent from the United States.

6. In an ordinary civil action for injuries to a mining claim, it is not necessary for the plaintiff in the first instance to allege his citizenship, and compliance with the act of congress for acquiring title to such claim, but he may make general averment of his title or possession; and this is sufficient in an action against a wrongdoer without right or title.

7. Where instructing to the jury are in the nature of a general charge, assignments of error thereon will not be reviewed in this court, unless the record shows that the objections and exceptions pointing out the particular error or errors were specially made before the trial court.

Story & Stevens and T. J. Collins, for plaintiff in error.

Stirman & Stewart and Pence & Pence, for defendants in error.

ELLIOTT, J., ( after stating the facts as above.)

On the trial it appeared that no patent from the United States had ever issued for the mining lode claimed by plaintiffs, and that their title was based upon their location certificate, and other evidence tending to show compliance with the laws of the United States relating to the acquisition of mineral lands. Counsel for plaintiff in error contend that such evidence of title, however clear, is not sufficient support the averments of the complaint; that the complaint avers ownership in the plaintiffs without qualification; and that such averment cannot be sustained, except by proof of a fee-simple title. The argument is that the locator of an unpatented mining-lode claim upon the public domain, not being in actual possession, and having no interest in the soil other than the mineral product, cannot maintain an action for cutting timber on such claim; that, before the issuance of the patent, the title to the soil and the timber thereon is in the United States; and that the United States alone has the right of action for the cutting and carrying away of such timber. It is true, the term 'owner,' when used alone, imports an absolute owner, or one who has complete dominion of the property owned, as the owner in fee of real property; but the meaning of a word is often varied according to the connection in which it is used, and is to be understood accordint to the subject-matter to which it relates. The term 'mining claim,' meaning a parcel of mineral land containing precious metals, is often used, in mining parlance, as synonymous with the term 'location,' which means the act of appropriating a mining claim upon the public domain, according to law, or established rules. Smelting Co. v. Kemp, 104 U.S. 648.

By Act Cong. May 10, 1872, all valuable mineral deposits in the lands of the United States, and the lands in which they are found, are declared to be open to exploration occupation, and purchase. The mode of locating such lands is also provided for in general terms, and the locators are granted the exclusive right of possession and enjoyment of the surface included within the lines of their locations. Moreover, the lands thus located are spoken of as 'mining claims,' and the locators as the 'owners' thereof, antecedent to the entry for the government patent. Rev. St. U.S. 2319 et seq. In Gwillim v. Donnellan, 115 U.S. 49, 5 S.Ct. 1110, a suit brought to determine an adverse claim to mining lands, it is held that 'a valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States, has the effect of a grant by the United States of the right of present and exclusive possession of the lands located. * * * The location is the plaintiff's title.' See, also, Forbes v. Gracey, 94 U.S. 767, and Belk v. Meagher, 104 U.S. 283, where it is declared that mining claims perfected under the law are 'property' in the fullest sense of the term, and that the title thereof passes by descent or purchase the same as other real property. Thus it appears...