McWilliams v. Winslow

• Decision Date: 03 July 1905
• Parties: McWILLIAMS et al. v. WINSLOW.
• Court: Colorado Supreme Court

82 P. 538

34 Colo. 341

McWILLIAMS et al. v. WINSLOW.

Supreme Court of Colorado

July 3, 1905

Appeal from District Court, Gunnison County; Theron Stevens, Judge.

Action by John McWilliams and others against Charles Winslow. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Rehearing denied October 2, 1905.

Brown & Nourse and S.D. Crump, for appellants.

Dexter T. Sapp, for appellee.

MAXWELL J.

Appellants as plaintiffs, commenced and prosecuted this action in support of their adverse, as the owners of the Adeline Clea No. 1 and the Adeline Clea No. 2 lode mining claims, against the issuance of patent to the Maggie F. No. 4 and the Maggie F. No. 5 lode mining claims, property of appellee. At the conclusion of plaintiffs' evidence defendant moved a nonsuit, for the reason that it did not appear from the evidence that the ground claimed by plaintiffs as the Adeline Clea No. 1 and the Adeline Clea No. 2 was unoccupied and vacant public domain, subject to location at the time plaintiffs claimed to have located the same. This motion was sustained, the case taken from the jury, and the action dismissed, at plaintiffs' cost, from which judgment is this appeal.

In this court plaintiffs abandon their case as to the Adeline Clea No. 2, but insist that the judgment should have been in plaintiffs' favor as to the Adeline Clea No. 1. At the trial it was admitted that the claims involved were identical in description and boundaries; that June 30 1891, defendant and his grantors performed all of the physical acts necessary to the location of the Maggie F. No 4 and the Maggie F. No. 5, except the discovery of mineral that January 1, 1890, the plaintiffs and ther grantors performed all of the physical acts necessary to the location of the Adeline Clea No. 1 and the Adeline Clea No. 2, except the discovery of mineral; that both parties were possessed of paper title to their respective locations; and that plaintiffs' adverse claim was filed in due time. The complaint alleged that the plaintiffs claim the right to occupy and possess the premises in controversy by actual prior possession as lode mining claims located on the public domain of the United States. The answer put in issue this averment, and affirmatively alleged that at the time plaintiffs claimed to have located the premises the same were in the actual and undisturbed possession of the grantor of the defendant, who was then actually engaged in working and operating said property as mining claims. The oral testimony introduced at the trial was for the purpose of proving that mineral had been discovered on plaintiffs' claims, and that the assessment work for the year 1901 had been performed. There is not a word of testimony in the record even tending to prove that the ground included within the exterior boundaries of plaintiffs' claims at the date of the alleged location was vacant or unoccupied mineral domain of the United States, subject to location. It was admitted that almost nine years prior to plaintiffs' location defendant and his grantors had located the ground, and plaintiffs testified that mineral had been discovered thereon previous to their attempted location. Manifestly this was an attempt to relocate the ground.

The location or relocation of a mining claim can only be made upon unoccupied and unclaimed public domain, and it was incumbent upon plaintiffs to show, as one of the material facts...