Muldoon v. Brown

• Decision Date: 01 December 1899
• Court: Utah Supreme Court
• Parties: JAMES MULDOON, J. J. KELLY, AND JAMES CLARK, APPELLANTS, v. WILLIAM BROWN, WM. JEWELL, JOSEPH ARCADA, AND H. W. TURNER, RESPONDENTS

59 P. 720

21 Utah 121

JAMES MULDOON, J. J. KELLY, AND JAMES CLARK, APPELLANTS, v. WILLIAM BROWN, WM. JEWELL, JOSEPH ARCADA, AND H. W. TURNER, RESPONDENTS

Supreme Court of Utah

December 1, 1899

Rehearing denied December, 19 1899.

Appeal from the Fifth District Court, Juab County, Hon. E. V. Higgins, Judge.

Action on a protest and adverse claim to determine the ownership and right of possession of certain mining ground. From a judgment for defendants, plaintiffs appealed.

Reversed and remanded.

W. C Hall, Esq., for appellants.

A bill for relief on the ground of fraud must be specific in stating facts which constitute the fraud; it is not sufficient to charge fraud in general terms. Without the averment of such facts the expressions "fraudulently," "deceitfully," "by mistake," will not bring the case within the equitable jurisdiction even on a demurrer to the bill. Section on 2748, Vol. 2, Estes Plea Pom.; Section 211 Bliss Code Plead. No estoppel for fraud is pleaded in this action.

H. L. Pickett, Esq., for respondents.

MINER, J. BARTCH, C. J., and BASKIN, J., concur.

OPINION

MINER, J.

In 1898 respondents filed an application for a United States patent to the Gold Haven Lode Mining Claim in State Line Mining District, Iron County, Utah. Appellants thereafter filed their adverse claim and protest to said application for a patent as owners of the Blackbird mining claim in said district, and commenced this action to determine the ownership and right of possession to the premises in question, claiming a conflict area between said mining claims, and asked for a determination of the right of patent to said conflicting area.

The Gold Haven claim covers a large part of the Blackbird claim. Appellants, plaintiffs below, claim that the Blackbird claim was located by the appellants on the 28th day of April, 1896, and was recorded on the 14th day of May, 1896. The Gold Haven mining claim was located on the 15th and recorded on the 16th day of May, 1896, by William Jewell, Wm. Brown, and Joseph Arcada, and who transferred his interest to defendant Turner.

Defendants made their discovery, and built their monument on the south end of their claim on May 15, 1896, and before proceeding further they discovered the monument and notice of the Blackbird claim, and thereafter called upon one of the plaintiffs to stake his claim so they could place their stakes properly. This said plaintiff declined to do, and the defendants thereafter continued the staking of their claim.

It appears that plaintiffs' location notice of the Blackbird claim was dated April 28, 1896, and while the testimony is very conflicting and unsatisfactory, it also appears by defendants' testimony that this notice was posted on the 13th day of May, but was dated back to the 28th day April, 1896, for the purpose of defeating the claim of one Thompson, who seems to have had some interest in the ground.

On the trial of the case, the court, under objection, admitted the testimony of William Jewell, a witness for the defendants, to the effect that plaintiff Clark told him that Kelly had informed him that he located the Blackbird claim on the 13th day of May, 1896, but had dated the location notice back to the 28th day of April, 1896, in order to beat Thompson out of the prior location.

The testimony of Mr. Brown, a witness for the defendant, was admitted, under objection, to the effect that plaintiff Clark had told him the date of the location notice was dated back to April 28, to beat Thompson.

A motion was afterward made to strike out this testimony, which motion was denied.

The testimony of Higbee, another witness for the defendants, was admitted, as to the statements of Clark and Kelley concerning the dating back of the location notice.

It was objected that such testimony could not bind the other parties plaintiff; that as against such parties the testimony was wholly incompetent, and that the statements of Clark as to what was told to him by Kelley, were hearsay and incompetent, and could not bind Muldoon.

It is also urged that no allegation of fraud in the location of the Blackbird claim, or of estoppel, is alleged in the complaint.

It appears from the decision of the court that the testimony in question was considered by it in the determination of the case. Such testimony doubtless had much weight with the trial court in arriving at its decision.

We are satisfied that the admission of this...