Miller v. Girard

• Decision Date: 08 May 1893
• Citation: 3 Colo.App. 278,33 P. 69
• Parties: MILLER et al. v. GIRARD et al.
• Court: Colorado Court of Appeals

33 P. 69

3 Colo.App. 278

MILLER et al. v. GIRARD et al.

Court of Appeals of Colorado

May 8, 1893

Appeal from district court, Pitkin county.

Action by J.B. Girard and others against Charles Miller and others to determine title to a certain mining claim. There was a judgment for plaintiffs, and defendants appeal. Reversed.

C.W Franklin and Porter Plumb, for appellants.

BISSELL P.J.

The condition of the proofs entitled the appellants to an instruction, which the court refused to give. No other matter will be considered, for the errors complained of are either not of sufficient gravity to reverse the case, or were cured by what subsequently occurred during the trial. A very brief statement will suffice to render the opinion intelligible. The controversy is in the form of an adverse suit between the owners of the Long John lode and the owners of the Aurora and Elgin claims, which were located on Aspen mountain, in Pitkin county. The Long John was the prior location, having been located in the summer of 1883. The litigation does not involve the validity of any of the steps taken to initiate the title to any of the claims, and the facts with respect to these matters will not be stated. In May 1888, the appellants, Carson and his co-owners, staked the ground, and took the requisite statutory steps to acquire title to the territory embraced in the Aurora and Elgin mining claims. Subsequently, they made application for a patent, and, while the advertisement was pending, the appellees, Girard & Co., as owners of the Long John commenced this adverse suit, to determine the title to the disputed territory. Having the prior location, if in all other respects their title was good, they must of course succeed. Under the issues as made up by the pleadings, and supported to a greater or less extent by the proofs, the owners of the Aurora and the Elgin attempted to maintain their right to the ground embraced within their lines by evidence which tended to show that, after the Long John had been located, the North Star lode, which was another claim in that vicinity, owned by Tourtelotte and others, had been so located as to include within its exterior lines the discovery shaft of the Long John claim. The North Star, at the time of the trial, had gone to patent, and, if the Long John discovery shaft was on the ground included within its boundaries, the owners of the Long John had of necessity lost title to that part...