Rebecca Gold Min. Co. v. Bryant

• Decision Date: 12 January 1903
• Citation: 31 Colo. 119,71 P. 1110
• Parties: REBECCA GOLD MIN. CO., Limited, v. BRYANT.
• Court: Colorado Supreme Court

71 P. 1110

31 Colo. 119

REBECCA GOLD MIN. CO., Limited, v. BRYANT.

Supreme Court of Colorado

January 12, 1903

Appeal from District Court, Teller County.

Action by the Rebecca Gold Mining Company, Limited, against Caleb F Bryant. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Carpenter & McBird, for appellant.

Gunnell Chinn & Miller, for appellee.

CAMPBELL C.J.

This is an action in support of an adverse claim. A triangular strip of ground in the Cripple Creek mining district was covered by three separate mining locations--the C. O. D., made in 1891 the Rebecca, in 1892; the Helen B., in 1898. The controversy here is between the owners of the Rebecca and Helen B. The evidence is practically harmonious; the case having been tried upon uncontradicted oral testimony and an agreed statement of facts, and without strict regard to the issues made by the pleadings. The material facts are: The ground in controversy was included within the C. O. D location, and was described in the location certificate. When application for a patent therefor was filed, which was after the Rebecca location was made, the conflicting territory was expressly excluded therefrom by the applicants, and afterwards by the Land Department, from the patent which was issued in 1893. It clearly appears that this strip was by mistake included within the C. O. D. location, and that its owners never at any time made any claim to it. In making application for a patent to the Rebecca lode in 1895, there is apparently some uncertainty upon the part of its owners as to their attitude with respect to this conflicting territory. In one of the papers constituting the application for a patent for the Rebecca, it seems, by mistake of the applicants, to have been excluded. They corrected the error by including it in amended published papers, and when the final proof was made the officers of the department described it in the final certificate of purchase, or receiver's receipt, acknowledging the payment of the purchase price. Afterwards, and before patent, and because of the fact of this first erroneous exclusion from one of the patent papers, the Commissioner of the Land Office, of his own motion, without notice to the owners of the Rebecca, canceled or changed the records of his office, or caused the same to be done, by excluding from the final certificate of entry this conflicting territory; and when the patent was issued for the Rebecca in August, 1895, it did not contain the same, although the previously issued C. O. D. patent, as well as that application for entry, did not cover it. After patents had been obtained for the Rebecca and the C. O. D., they were recorded, and the two mines conveyed to the appellant mining company, which has ever since that time been continuously in possession and working them as producing mines. In August, 1898, from an inspection of these patents by the plaintiff (appellee here), he discovered that the ground which he subsequently located as the Helen B., though included in the location certificates of both the earlier locations, was excluded from the patents; and he thereupon proceeded to locate the same as the Helen B. claim, and afterwards perfected his location in accordance with the statutes, and his title is good, if at the time of his location the territory was unappropriated public domain. When the appellee sought to obtain a patent for the Helen B., the Commissioner of the Land Office refused to consider his proceeding as an application for that purpose, but remitted him to his rights under the statute in case an application for a patent to the ground was made by other claimants. The various rulings of the department are not altogether consistent, but its final decision with respect to the Rebecca lode was that since, in one of the papers constituting application for a patent therefor, the territory here in conflict was distinctly claimed, and at that time the only apparent adverse interest thereto arose out of its previous location as a part of the C. O. D., and the owners of the latter had never made any claim thereto, but had excluded it in their entry, and the department had also excluded it from the patent, the change by the commissioner of the certificate of purchase of the Rebecca was unauthorized, and the conflicting territory should have been included in the Rebecca patent. But since appellee, as the owner of the Helen B. location, claimed rights in the same property, the owners of the Rebecca were required to readvertise, and make application for a patent for their property as if no previous application had been made. And in this connection it is pertinent to remark that the mere cancellation of the entry does not render the ground open to relocation. Beals v. Cone, 27 Colo. 473, 62 P. 948, 83 Am.St.Rep. 92. When, therefore, in pursuance of such directions, appellant proceeded...