McGinnis v. Egbert

• Decision Date: 19 December 1884
• Citation: 8 Colo. 41,5 P. 652
• Court: Colorado Supreme Court
• Parties: McGINNIS and another v. EGBERT.

5 P. 652

8 Colo. 41

McGINNIS and another v. EGBERT.

Supreme Court of Colorado

December 19, 1884

Appeal from the district court of San Juan county.

J. W. Mills, for appellants.

John G. Taylor and Sam P. Rose, for appellee.

BECK C.J.

The appellants, McGinnis and Shields, brought this action in support of an adverse claim filed by them against the issuance of a patent to the Winnebago lode upon the application of the defendant, Egbert. The complaint alleges that right of the plaintiffs to occupy and possess said mining claim, or the greater part of it, by virtue of a relocation of the same on the nineteenth day of July, 1880 under the name of the Little Chief. It alleges that said defendant wrongfully ousted the plaintiffs on the twenty-fourth day of February, 1882.

It is contended that the plaintiffs established on the trial the performance on their part of the various steps necessary to constitute a valid relocation of the property. They filed an original location certificate on the sixth of September, 1880, and an amended location certificate on the eighteenth day of November following. They also proved the performance of annual labor for the year 1881. The defendant was permitted to introduce in evidence, over the objections of the plaintiffs, an original and an additional location certificate of the Winnebago lode; also deeds of conveyance from the original locator, and his grantees, vesting all rights and title acquired under the location of the Winnebago lode in defendant; also proof of the performance of annual labor upon said claim for each year from 1876 to 1881, inclusive.

We will not undertake to discuss all the questions raised by the 29 assignments of error in this case, but will consider such as we deem material to an impartial adjudication of the respective rights of the parties. Upon the production of the original location certificate of the Winnebago lode the following objections were interposed on the part of the plaintiffs:

'(1) The defendant has shown no location of the said lode by erecting a discovery stake and posting a notice, as required by law, previous to the filing of a discovery shaft. (2) The certificate is void for uncertainty in that it does not describe the claim by reference to some natural object or permanent monument.'

It is also urged as a further objection that it was not proved that the boundaries of the claim were staked, as required by law. Being a purchaser of the claim, the defendant may have been unable to prove all the acts which were in fact performed by the original locator at the time of the location of the Winnebago lode. The original location certificate was executed by G. H. Merril as locator. It states that the location was made on the twenty-ninth day of July, 1874, the certificate being filed for record on the twenty-sixth day of September of that year. None of the defendant's witnesses were present at the location of the claim, or saw it about that time. The witness Curry testified that he visited the claim in September, 1875, and that there was then a shaft upon it about 12 feet deep, which was the only shaft upon the claim. Andrew Forbes testified that he visited it in June or July, 1876, in company with Capt. Graham, from whom he had previously purchased the claim, and that they measured it off at that time, and set permanent stakes at the corners and at the centers of the side lines. He describes the discovery shaft, as it then existed, to be a cut or adit, about 12 or 14 feet deep, sunk in solid mineral. He says this shaft or adit was located about the center of the claim, and that the vein could be traced right along. He further says that he hired men a few days afterwards and had $100 worth of labor done in sinking this shaft to a greater depth. The only defect alleged to exist in the location certificate is that it fails to describe the claim with reference to some natural object or permanent monument. There was an attempt to conform to the requirement of the statute in this particular, but the description is too uncertain to be of any practical value. To remedy this defect an additional certificate was filed by James R. Forbes, a grantee of the lode, on the sixth day of October, 1880. If this certificate was proper evidence in the case it cured the defect in the original.

The only objection interposed to the admission of the additional certificate was that it did not state the number of linear feet claimed on each side of the center of the discovery shaft. It is not claimed by the defendant that any relocation of the Winnebago lode was made at the time of making and recording the additional certificate. The certificate does not state that a relocation was made. Its purpose was merely to cure the defect mentioned in the original, as clearly appear from its contents. The commencement is as follows: 'For the purpose of amending, correcting, and more clearly defining the location and boundaries of the Winnebago lode, * * * I offer the following corrected survey.' The original certificate stated the number of feet claimed on each side of the center of the discovery shaft, and no change of boundaries purports to have been made by the corrected survey. It appears to be merely descriptive of the boundaries as originally established, stating where the corners and stakes are located, and describing the claim with reference to natural objects and permanent monuments. The statute authorizes a charge of boundaries in certain cases, and a relocation of the claim by the owners. It also makes provision for supplying omissions or amending defects in the original location certificate, and where such amendment is made before adverse rights attach, the amendment relates back to the original location. The same defect which is alleged against the original location certificate of the Winnebago lode, also existed in the original certificate of the Little Chief. This was conceded by the filing of an amended certificate by the plaintiffs. The latter instrument, however, was not filed for record until the lapse of several weeks after the defect in the location certificate of the Winnebago claim had been corrected. If, then, it be said that at the time of plaintiff's entry upon the claim no valid location of it existed, on account of said defect in the location certificate, it may be answered that no valid relocation of the claim existed when the defendant's amendment was recorded.

We are of opinion that the defendant was in a position, under the foregoing facts and circumstances, to invoke the rule of decision that a subsequent locator cannot object that all the steps necessary to a valid location of a mining claim were not performed at the time of its location, provided they were afterwards performed before other rights attached. This rule was applied when objections were raised that claims were not sufficiently marked upon the ground at the time of the location. North Noonday M. Co. v. Orient M. Co. 6 Sawy. 313; S.C. 1 F. 522; Jupiter M. Co. v. Bodie M. Co. 7 Sawy. 114; S.C. 11 F. 666. It was likewise invoked in cases of failures to file location certificates within three months after discovery of claims, as required by statute. Faxon v. Barnard, 2 McCrary, 44; S.C. 4 F. 702. So, also, it has been held that a failure to sink a discovery shaft to mineral in place at time of survey and location may be cured by subsequently so sinking it, and the same will relate back to the location, and enable the locator to hold the claim against all who had not acquired interests in the lode at the time the acts were performed. Zollars v. Evans, 2 McCrary, 39, 43; S.C. 5 F. 172. See, also, 6 Sawy. 309; S.C. 1 F. 522. As regards the objection that the testimony did not show that a discovery notice had been posted, as required by law, it is sufficient to say that under the circumstances it may fairly be presumed, in favor of a purchaser, that these preliminary steps were performed. Harris v. Equator M. & S. Co. 2 Colo. Law Rep. 63, 66. There was no error in the admission of the location certificates.

To prove the performance of annual labor upon the claim, the defendant relied both upon recorded affidavits and oral testimony. Objections were made to the admission of the several affidavits and exceptions reserved. Plaintiff's counsel strongly insist that the district court committed error in admitting them, for reasons following. One objection urged against some of the affidavits is that they were prematurely filed. Counsel contends that the statute provides an 'affidavit period' as well as a 'labor period,' and that no authority is given to make and record an affidavit of the performance of annual labor, except within this affidavit period. Consequently, if the same is made and filed before the period arrives, it is as fatal to its validity as if made and filed after the period expires. The language of the statute is: 'Within six months after any set time or annual period allowed for the performance of labor or making improvements upon any lode claim, the person on whose behalf such outlay was made, or some person for him, shall make and record an affidavit,' etc. Gen. St. p. 725, § 26. Counsel says: 'For obvious reasons the language and policy of the law forbid an assessment period to be anticipated by the filing of an affidavit till the period has expired; then for six months, and no longer, affidavits may be filed.' The learned counsel omits to state what the 'obvious reasons' are which forbid the making and recording of a labor affidavit until the assessment year or period expires, and we are free to say that such reasons do not occur to us. The object of the statute, evidently, is to preserve evidence of the fact that the annual labor has been performed. It was said in Belk v...