Miller v. Taylor

• Decision Date: 01 December 1881
• Citation: 6 Colo. 41
• Parties: MILLER ET AL. v. TAYLOR ET AL.
• Court: Colorado Supreme Court

6 Colo. 41

MILLER ET AL. v. TAYLOR ET AL.

Supreme Court of Colorado

December, 1881

Appeal from District Court of Lake County.

THE facts are sufficiently stated in the opinion.

Mr. J W. MULLAHEY and Mr. G. G. WHITE, for appellants.

Messrs CHARLES and DILLON and Mr. M. J. FORHAN, for appellees.

ELBERT C. J.

This action was brought under the provisions of section 10 chapter 48, General Laws. By that section the district court is clothed with power to issue 'writs of injunction for affirmative relief, having the force and effect of a writ of restitution, restoring any person or persons to the possession of any mining property or premises from which he or they may have been ousted by fraud, force or violence, or from which he or they are kept out of possession by threats or by words or actions which have a natural tendency to excite fear or apprehension of danger, or whenever such possession was taken from him or them by entry of the adverse party on Sunday or a legal holiday, or while the party in possession was temporarily absent therefrom.' General Laws, 510.

The plaintiffs, by their complaint, asked to be restored to the occupancy and possession of the 'Venture lode,' of which they alleged the defendants had dispossessed them by fraud, force and violence, and by threats of shooting and killing.

A demurrer interposed by the defendants to the complaint was overruled by the court, and this is assigned as error.

In support of this assignment it is urged that the complaint does not show a compliance with the statutes respecting the location, marking and recording of mining claims.

(1) That it does not allege that a discovery shaft was sunk upon the lode 'to the depth of at least ten feet from the lowest point of the rim of such shaft at the surface.'

(2) That it does not allege that the surface boundaries were marked by the locators as required by law.

It is an elementary principle that the law permits no person to profit by his own wrong. The rule that he who prevents a thing being done shall not avail himself of the non-performance he has thus occasioned, is but an application of the general principle. Broom's Leg. Max. 279-282.

The complaint alleges that on or about the 29th day of April, 1879, certain of the plaintiffs entered upon the premises described, 'explored the same, and discovered the outcrop and apex of a body of mineral-bearing rock in place, and thereupon proceeded to sink a discovery shaft to a depth of ten feet below the lowest part of the vein at the surface, thereby to remove, disclose and expose a well-defined vein of mineral rock in place, which was not previously known to exist, the same being a gold and silver-bearing vein, and other precious metals.

'And thereupon, and upon said day, they posted at said point of discovery, a plain sign or notice containing the name of the lode, to wit: 'The Venture lode,' the names of the locators, to wit: Alexander McArthur, James T. Rawlings, Sidney Goldsborough and Lewis C. Goldsborough, and the date of discovery, to wit: April 29, A. D. 1879.

'That on the 20th day of May, A. D. 1879, as they were proceeding to, and actually sinking their discovery shaft to a depth of ten feet from the lowest part of the rim at the surface, they having sunk the same at that time to the depth of seven feet, the said defendants, aided and assisted by one Charles Stanton, who represented himself as a deputy sheriff, and authorized by law to eject said locators, he and said plaintiff being aided and abetted by other whose names are unknown to plaintiffs, and all being heavily armed with revolvers, did by fraud, force and violence, and by threats to shoot said locators should they refuse to cease working on said discovery shaft, oust and drive them from said discovery shaft, and have ever since, by threats to shoot and kill said locators and said plaintiff M. J. Forhan, prevent and intimidate them from entering upon said premises or further sinking their discovery shaft on said premises.

'That by threats of shooting and killing said locators for entering upon said premises, the said defendants prevented and deterred said McArthur, James T. Rawlings, Lewis C. Goldsborough and Sidney Goldsborough from entering in or upon said premises for the purpose of marking the surface boundaries of said Venture lode with six substantial posts as required by law.'

The demurrer admitted the truth of these allegations, and they sufficiently explain why the shaft was not sunk the statutory depth and the boundaries marked as required by law.

Having ousted the plaintiffs of their possession before the expiration of the time within which these statutory requirements were to be complied with, and having prevented a compliance by threats to shoot and kill, the law would be weak, indeed, did it permit them to allege a non-performance occasioned by their own illegal conduct.

The same considerations apply to the...