Sands v. Cruikshank

• Court: South Dakota Supreme Court
• Writing for the Court: HANEY, J.
• Citation: Sands v. Cruikshank, 87 N.W. 589, 15 S.D. 142 (S.D. 1901)
• Decision Date: 02 October 1901
• Parties: MARTIN SANDS, Plaintiff and appellant, v. ALEXANDER CRUIKSHANK, et al., Defendant and respondents.

15 S.D. 142, 87 N.W. 589 (1901)

MARTIN SANDS,

Plaintiff and appellant,

v.ALEXANDER CRUIKSHANK, et al.,

Defendant and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County, SD

Hon. Joseph. B. Moore, Judge

Reversed

Frank McLaughlin, William R. Steele, I. W. Goodner

Attorneys for appellant.

Moody, Kellar & Moody

Horner & Stewart

Attorneys for respondents.

Opinion filed October 2, 1901

HANEY, J.

This is an action to determine adverse claims to certain mining ground in Lawrence county. It was tried before Hon. A. J. Plowman without a jury. His decision was in favor of the plaintiff, and judgment was rendered accordingly. Subsequently defendants’ application for a new trial was heard and granted by Hon. Joseph B. Moore, who in the meantime had succeeded Judge Plowman as judge within and for the Eighth circuit. The grounds of the application designated in the notice of intention are insufficiency of the evidence to justify the decision, and errors in law occurring at the trial. Plaintiff appealed from the order granting a new trial.

Defendants’ title to the ground in dispute rests upon an alleged lode location initiated January 1, 1886. The plaintiff’s title depends upon an alleged lode location initiated September 29, 1891. As we read the record and understand the arguments of counsel, the only real controversy in this court relates to the sufficiency of the evidence to establish an actual discovery by defendants prior to the location of the plaintiff’s claim. Assuming that defendants proved performance of the other acts necessary to the acquisition and continuance of their title, and that the plaintiff proved performance of all the acts required to make and maintain a valid location on his part, if the defendants made a discovery, within the meaning of the statute, the ground in controversy was not unappropriated lands of the government when the plaintiff’s claim was initiated, and his location was void. 1 Lindl. Mines, § 337. If, on the other hand, the defendants failed to prove an actual discovery prior to the intervening of the plaintiff’s rights, they cannot complain of the judgment rendered by the trial court. “A location can rest only upon an actual discovery of the vein or lode. Such discovery must precede the location, or be in advance of intervening rights.” Lindl. Mines, § 335. Upon this branch of the case the trial judge found as follows:

“That on the first day of January, A. D. 1886, Alexander Cruickshank, one of the defendants, and one J. C. Shurts, made a pretended location of a mining location called the Stewart lode or mining claim. That said location was attempted to be made by posting a notice at or near some work that had been done and performed some years prior thereto upon a mining location known as and called the Lily lode or mining claim; but at the time of the pretended location of said Stewart lode or mining claim, the said pretended locators thereof made no discovery of any vein, lode, or ledge of rock in place bearing valuable mineral, nor did they at any time make such discovery prior to the location of the Big Foot lode by Martin Sands and Gregory Cruikshank on the 29th day of September, 1891.”

When the application has been heard by the judge before whom the action was tried an order granting a new trial on the ground of insufficiency of evidence will be reversed only where there has been manifest abuse of discretion. Thomas v. Fullerton, 13 S.D. 199, 83 N.W. 45 (1900); Morrow v. Letcher, 10 S.D. 33, 71 N.W. 139 (1897); Distad v. Shanklin, 11 S.D. 1, 75 N.W. 205 (1898); Grant v. Grant, 6 SD 147, 60 N.W. 743 (1894); Alt v. Chicago & N.W. Ry. Co., 5 SD 20, 57 N.W. 1126 (1894); Hodges v. Bierlein, 4 SD 258, 56 N.W. 811 (1893). The reason of this rule is that one who has observed the appearance and demeanor of witnesses is in a better position to intelligently weigh oral evidence than one who merely reads an abstract of it as preserved in a bill of exceptions. Where the reason is the same, the rule should be the same, but, when the reason of a rule ceases, so should the rule itself. Comp. Laws, §§ 4697, 4698. In this case the judge who granted defendants application did not preside at the...