Omar v. Soper

• Decision Date: 19 May 1888
• Citation: 18 P. 443,11 Colo. 380
• Parties: OMAR et al. v. SOPER et al.
• Court: Colorado Supreme Court

18 P. 443

11 Colo. 380

OMAR et al. v. SOPER et al.

Supreme Court of Colorado

May 19, 1888

Appeal from district court, Boulder county.

This is a contention between claimants of the same mineral lode or vein; the appellants, who were defendants below, calling it the 'Golden Bell,' and the appellees, the 'Verde.' One of the appellants, Joseph Omar, with one Harry Clark, discovered the Golden Bell on February 24, 1883. They immediately posted a notice at the point of discovery containing the name of the lode, the date of discovery, and that they claimed 1,000 feet north-easterly, and 500 feet south-westerly, from the point of discovery, and 75 feet on each side of the vein, to which they signed their names as the discoverers. The evidence shows that they did considerable work within the 60 days next ensuing, and that their discovery shaft was sunk to the required depth within that period. The testimony of Omar and other witnesses shows this shaft to have been 10 feet in depth on the day the Verde was discovered. On April 4, 1883, the Verde was discovered by E. C. Bradstreet and L. E. Wallace, grantors of the appellees, at a point a few feet southerly of the territory claimed by Omar and Clark as described in their discovery notice. Bradstreet and Wallace, upon uncovering the vein also posted a discovery notice, claiming 1,400 feet north-easterly, 100 feet south-westerly, and 75 feet on either side of the crevice. This notice also contained the name given the lode, (the 'Verde,') the the date of discovery, and was signed by the discoverers. Their claim thus made, overlapped the vein and territory of the Golden Bell nearly 1,400 feet. On the 25th day of April next ensuing, another step in the history of thus case occurred upon which the Verde parties mainly rely in support of their claim to the disputed territory. It appears that Omar and Clark, discoverers of the Golden Bell, owned another claim, called the 'Mammoth,' and that they exchanged their interests in these claims on that day; Omar taking Clark's interest in the Golden Bell, and Clark taking Omar's interest in the Mammoth. The irregular manner in which this exchange was made, in relied upon by the appellees as an abandonment of the Golden Bell by its discoverers, and as letting in and validating the claim of the Verde parties. Omar describes the transaction thus: He says he worked right along on the Golden Bell from the 24th of February, 1883, until the 25th of April, 1883, and on that day made a trade with Clark. He suggested to him that they held two lodes together, and proposed that Clark one, and he would take the other. Clark chose the Mammoth; and Omar thereupon erased Clark's name from the discovery stake of the Golden Bell, putting or leaving his own name thereon, and changed the date of the discovery from February 24, 1883, to April 25, 1883. This statement is corroborated by other witnesses. The testimony further shows that there was no cessation of work upon the Golden Bell, and that about two weeks after this transaction a rich strike of mineral was made upon it. On or about May 21st, it was surveyed and staked. On May 22d, Omar made out and signed a location certificate, which he filed for record on May 29th. This certificate gives as the date of discovery April 25, 1883. The Verde was surveyed and staked June 7, 1883, and the first location certificate was filed for record, June 8th. On June 12th the claimants thereof brought suit against the claimants of the Golden Bell, alleging that the plaintiff's grantors were legally seized and possessed of the Verde on the 4th day of April, 1883; the plaintiffs' ownership and right to possession of said lode through their grantors, and by compliance with the mining laws and regulations; the entry of defendants, (the appellants;) the ousting of the plaintiffs by them, etc. The defendants, claimants of the Golden Bell, answered the complaint, traversing its allegations; asserting title in themselves to the property sought to be recovered, by virtue of the discovery of mineral thereon by Omar and Clark on February 24, 1883; the claim then made and posted by them; their compliance with the mining statutes; the transfer to Omar of the interest of Clark therein; the change thereupon made in the notice, and by the subsequent transfers of interests therein to co-defendants. The allegations of this answer were duly traversed by a replication filed by the plaintiffs. Two trials were had below, both resulting in favor of the plaintiffs, claimants of the Verde. On appeal from the last judgment, this court, at the last December term, reversed the judgment of the court below, but afterwards granted a rehearing, which has been had. The opinion filed on the former appeal was withdrawn, and the opinion in this case was filed in its place. Gen. St. Colo.§ 2411, provides that the relocation of abandoned lode claims shall be by sinking a new discovery shaft, and fixing new boundaries, in the same manner as if it were the location of a new claim; or the relocator may sink the original discovery shaft 10 feet deeper than it was at the time of abandonment, and erect new or adopt the old boundaries, renewing the posts of removed or destroyed. In either case a new location stake shall be erected. In any case, whether the whole or part of an abandoned claim is taken, the location certificate may state that the whole or any part of the new location is located as abandoned property.

Dolloff & Rittenhouse, for appellants.

Alpheus Wright and L. C. Rockwell, for appellees.

BECK C.J., ( after stating the facts substantially as above.)

The first and second paragraphs of the petition filed for rehearing state the substantial grounds relied upon by the appellees in their arguments upon the rehearing. They are as follows: '(1) The decision seems to be based upon the ground that appellees' discovery shaft was sunk upon appellants' claim, a valid subsisting claim, and therefore void. The court erred, in that the discovery of the Verde was made on unoccupied public domain, but it became, by reason of the survey, an overlapping claim on the Golden Bell. (2) The court erred in deciding that the abandonment of the so-called Golden Bell by Omar and Clark, by making its date of discovery the 25th day of April, 1883, instead of February 24, 1883, did not inure to the benefit of the appellees.' It is further urged, in this petition, that the decision of this court in Mining Co. v. Mining Co., 6 Colo. 380, holding 'that entering upon premises in the actual possession of another, for the purpose of performing the acts necessary to constitute location and possession, amount only to trespass, and cannot form the basis for the acquisition of title,' is not applicable to the facts in this case, because the entry of appellees for the purpose of discovery of the Verde lode was not made on the Golden Bell territory, nor on any ground in appellants' possession. Upon allowing the rehearing, a question, based, as was supposed, largely upon appellees' theory of the case, was submitted for argument. Counsel for the appellees, however, raised the objection that the question submitted was unfair to them, in that it assumed a state of facts which did not exist. They did not confine themselves to the discussion of this question, but, as they admit, devoted their principal arguments to the case as presented by the whole record. They also alleged errors and inconsistencies in the opinion filed, which were not pointed out in the petition for rehearing. But in view of the facts that the case must be remanded for another trial, and that important facts and points were misapprehended by the court on the former hearing, we deem it expedient that the opinion filed be withdrawn. The principal errors assigned upon the record of the trial below relate to instructions given the jury in behalf of the appellees, and the refusal to give instructions prayed by the appellants. The main issue involved in the case is whether the discoverers of the Verde (their discovery being upon the extension of the Golden Bell lode, but immediately outside that part of the Golden Bell vein and territory then claimed by its discoverers) could, in the manner here attempted, initiate a claim to the territory of the latter lode which might ripen into a valid claim in their favor through subsequent delinquencies on the part of the original discoverers of that lode.

The proposition of appellants, that the claim of Omar and Clark to 1,500 feet of the Golden Bell lode and territory, on the 4th day of April, 1883, the day of the discovery of the Verde, was then a valid subsisting claim, is supported by high authority. This proposition is disputed by counsel for the appellees. They take the position that the discoverer of a lode cannot keep other prospectors off his lode during the time allowed him by statute for sinking his discovery shaft, by inserting in his discovery notice, in addition to matters required by statute, the number of feet claimed upon the vein on each side of the point of discovery also that such a notice does not render void an overlapping claim on the same vein and territory, made, within the period mentioned, upon a junior discovery. Upon these points the views of counsel are in conflict with the views of the supreme court of the United States. In the case of Erhardt v. Boaro, tried in the...