Moyle v. Bullene

• Decision Date: 13 January 1896
• Citation: 7 Colo.App. 308,44 P. 69
• Parties: MOYLE v. BULLENE et al.
• Court: Colorado Court of Appeals

44 P. 69

7 Colo.App. 308

MOYLE v. BULLENE et al.

Court of Appeals of Colorado

January 13, 1896

Appeal from district court, Gilpin county.

Action by Joseph Moyle against Emma F.J. Bullene and others. From a judgment for defendants, plaintiff appeals. Reversed.

The action was ejectment; the controversy, over a lode mining claim situated at Blackhawk, on Bobtail hill. Plaintiff claimed title to it as the "Tywarnhail Lode" defendants as the "Lady B. Lode." The two claims contended for covered, if not identically, substantially the same ground. Plaintiff alleged a discovery and occupation by one William Messenger on January 12, 1882, as the "Big Lode" that Messenger remained in possession until 1885, when he forfeited title by death, and failure to perform the assessment work of $100; that on the 18th of February, 1886 the plaintiff entered upon and relocated the lode as the "Tywarnhail." Alleged full compliance with the statute, and that, within the statutory time of three months, he prepared and filed for record his certificate of location, and annually thereafter performed the assessment labor until the year 1889, when the defendants entered, unlawfully dispossessed him, and retained such possession. Defendants answered, denying each allegation of the complaint, and averring that prior to November 19, 1885, and from and after that, they were the owners of the Lady B. mining claim, and in the possession of it, except when such possession was invaded by the plaintiff. Alleging full compliance with the statutes of the United States and this state; that on the 25th of February, 1889, the plaintiff entered and ousted them from the possession. Plaintiff replied (1) that the Lady B. lode was situated within the boundaries of the town of Blackhawk, to which the town had title from the government of the United States prior to the alleged discovery and occupation by the defendants,--which was stricken out upon motion; (2) that, by a failure to perform the assessment work of 1888 and 1889, defendants forfeited their right to the property, and that on January 1, 1890, plaintiff entered and relocated it, made full compliance with the requirements of law, and called it the "Moonlight Lode." The case was tried to a jury. Plaintiff's testimony tended to establish all the allegations of the complaint; defendants', to establish all the allegations of the answer. No evidence was introduced by the plaintiff in support of the allegation in the replication in regard to forfeiture by the defendants, nor relocation by plaintiff, and his title to the property as the "Moonlight Lode." Plaintiff offered proof that the Lady B. lode was within the patented limits of the town of Blackhawk, which was denied by the court. Defendants gave evidence that the lode and mineral were known to exist long prior to the application and entry of the town site. Counsel for plaintiff then offered proof that the discovery shaft of the Lady B. lode was within the limits of the Thanksgiving lode, which was located in 1879, and held and occupied under such title at the time the Lady B. lode was located, which evidence was refused by the court. The original certificate of location of the Lady B. lode was offered in evidence by defendants. Objected to for the reason that it was not sufficiently full in description of the claim. Objection sustained, and the certificate not admitted. An amended certificate was offered bearing date some two years later, and allowed in evidence. The verdict and judgment were for the defendants.

Thomas, Bryant & Lee, for appellant.

J. McD. Livesay, for appellees.

REED P.J. (after stating the facts).

The abstract in this case fails to furnish the necessary information, and I have been compelled to resort to the record for nearly all the information I have been able to obtain. On all important questions of fact in regard to the discovery, location, and occupation of the mine by the respective contestants, there is no abstract of the evidence whatever. It is said "that plaintiff, to maintain the issues on his part, introduced evidence tending to prove," etc. Then follows a schedule of facts which, if proved, would clearly establish every substantive fact necessary to a possessory title under United States and state statutes; but we are not informed whether any such facts were established,--only that the evidence had a tendency in that direction. As the plaintiff appealed, and furnished the abstract, we might question the statements, and consider counsel biased, were it not for the fact that when they come to the evidence of defendants the same language is used, and the same enumeration of necessary facts that would establish the same kind of a title; and it is said, in an eminently unselfish and disinterested manner, that the evidence of defendants "tended to prove" them. The testimony clearly established the identity of the property of the two adverse claimants. So, if the language means anything, it established irrefragable title of both parties to the same property, by discovery and occupation. For lack of an abstract, I have been carefully through the bill of exceptions, to ascertain in regard to the discovery shafts of the two properties, and find that they are identical. One William Messenger, it appears from the evidence, made the discovery in 1882 or 1883; drove an adit into the side hill which at the time of his death, in 1885 had been driven 15 or 20 feet; and it was called the "Big Lode." It is claimed that by his death the property was abandoned. On the 19th day of November, 1885, defendants claim to have taken possession; made a discovery; relocated as the "Lady B."; remained in the actual occupancy of the property; performed the annual assessment work of $100 each year, including the year 189...