Miller v. Hamley

• Decision Date: 05 October 1903
• Citation: 74 P. 980,31 Colo. 495
• Parties: MILLER v. HAMLEY et al.
• Court: Colorado Supreme Court

74 P. 980

31 Colo. 495

MILLER v. HAMLEY et al.

Supreme Court of Colorado

October 5, 1903

Appeal from District Court, Clear Creek County; Allison H. De France, Judge.

Action by Frederick J. Hamley and others against James A. Miller. Judgment for plaintiffs. Defendant appeals. Affirmed.

Morrison & De Soto and Williams & Bullis, for appellant.

Charles C. Post, Edward C. Mason, and Hugh Butler, for appellees.

STEELE J.

This is a suit in ejectment in support of an adverse claim against the application for a patent to the J. A. M lode. The Quito claim was located on July 29, 1886, 1,354 feet in length. In 1887 the owner of the claim applied for patent to 1,019 feet of the claim, and in 1890 patent was issued for that portion of the claim. Prior to the time the application to purchase the Quito was made, patent had issued for the Becker placer, and the patented portion of the Quito lies wholly outside the Becker placer. The J. A. M. lode was located across the Becker placer, including that portion of the Quito which was excluded from the application to purchase. The owners of the Becker placer do not contest the claims of either the Quito or the J. A. M. owners, and it is conceded that the lode in controversy was known to exist at the time of the placer application for patent. The controversy arises over the right to the east 335 feet of the Quito lode, or that portion of the Quito lode not included in the application to purchase. The following stipulation was entered into: 'It is stipulated and agreed by and between the parties plaintiff and defendant that the two maps offered in evidence, and made by F. H. Stevens, the surveyor, are true and correct maps of the Quito lode mining claim, and the J. A. M. lode mining claim, and that the workings shown upon these maps are correct.' The following is a copy of one of these maps:

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The trial resulted in judgment in favor of the plaintiffs; the court finding, among other things, 'that the plaintiffs were at the time of the commencement of this suit, and still are, the owners and entitled to the possession of the property described in the complaint, to wit, the Quito lode mining claim, as the same was located on the 29th day of July, A. D. 1886, and that the plaintiffs and their predecessors in title have ever since the year 1893 down to the present time, done and performed upon said property the annual labor required by law, and that the defendant did on the 20th day of January, 1896, unlawfully and wrongfully enter upon a portion [describing it] of the Quito claim theretofore owned and held by plaintiffs, and ousted the plaintiffs therefrom, and has ever since wrongfully withheld the same from the plaintiffs.' The defendant brings the case here by appeal.

The following appears in the brief of defendants: 'Each party proved its discovery, location, record, and paper title. The annual labor was proved to have been done, and the case now stands on the question raised by the third defense, to wit 'Where a lode applies for and goes to patent on that part of its area which includes its discovery shaft, is not such procedure an abandonment of that part of the original location not covered by the application and patent?'' We shall therefore confine ourselves to a discussion of this question. Cases are cited by counsel in support of their contention that the loss of the discovery is a loss of the location. No discussion of this proposition is necessary. It was settled by the case of Gwillim v. Donnellan, 115, U.S 45, 5 S.Ct. 1110, 29 L.Ed. 348, that where the portion of a claim containing the discovery shaft is patented to a third party, the whole claim is lost. It is also well settled that the exercise of a pre-emption right under Act Aug. 29, 1842, c. 262 (5 Stat. 543), by an entry of one-quarter of a quarter section of land, is an abandonment of the right to enter under that act the remaining three-quarters of that quarter section. Nix v. Allen, 112 U.S. 129, 5 S.Ct. 70, 28 L.Ed. 675. It was said by Judge Sanborn in the case of New Dunderberg Min. Co. v. Old, 79 F. 605, 25 C.C.A. 124: 'Under that act [1872], the location of a mining claim on the surface of the ground, and its entry for patent, is a notice to the government and the public that the owner claims all the exclusive rights and privileges granted by the act, but is no less a notice, and a legal notice, that he renounces and abandons to the government all other rights and privileges pertaining to his discovery of the lode for which he asks the patent.' The language is quoted in the brief of counsel for defendant as supporting his contention that, where one procures a patent for that portion of his claim containing the discovery shaft, he relinquishes and abandons to the government all portions of his location not included in the patent. We do not regard the cases cited as applicable to the case at bar. In the case of Gwillim v. Donnellan the owner of the...