Saxton v. Perry

• Decision Date: 07 February 1910
• Citation: 107 P. 281,47 Colo. 263
• Parties: SAXTON et al. v. PERRY et al.
• Court: Colorado Supreme Court

107 P. 281

47 Colo. 263

SAXTON et al. v. PERRY et al.

Supreme Court of Colorado

February 7, 1910

Appeal from District Court, El Paso County; Louis W. Cunningham Judge.

Action by A. W. Perry and others against C. B. Saxton and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

P. J Dugan and G. C. Wells, for appellants.

Ward &amp Ward, for appellees.

BAILEY J.

The plaintiffs below, A. W. Perry and others, claiming to be the owners of the Nevada Placer Mining Claim embracing the N.W. 1/4 of the S.E. 1/4, the E. 1/2 of the S.W. 1/4 and the S.E. 1/4 of the N.W. 1/4, section 12, township 12 south, range 62 west, in El Paso county, Colo., brought an adverse suit in the district court of El Paso county against C. B. Saxton and others, claiming to be the owners of the Wells placer mining claim, and applying for a patent thereto, covering the identical ground embraced in the Nevada placer. The plaintiffs had judgment upon a directed verdict, and the defendants bring the case here for review.

It is admitted that the defendants have the prior location and must prevail, if their location is valid. At the close of the testimony both parties moved for an instructed verdict. The motion of the defendants is based on these grounds:

'(1) That under the lasw of the United States there is no requirement that placer claims located according to legal subdivisions on the surveyed lands of the United States shall be staked at the angles of the claim, or otherwise; but on the contrary, by the laws of the United States it is made permissible to locate placer claims upon the surveyed public lands by legal subdivisions, without reference to monuments or boundaries.

'(2) Because there is no statute of the state of Colorado, where placer claims are located by legal subdivisions on the surveyed lands of the United States, requiring the same to be staked, and any statute of the state of Colorado which purports to require staking at the angles of a placer claim, which has been located upon the public lands of the United States which have been surveyed, is absolutely null and void, because in contravention of the federal statute.

'(3) Because on the 14th day of January, 1903, the defendant, C. B. Saxton, in his own behalf, and on behalf of his associates, and prior to said date, discovered a deposit of fire clay on the land in dispute, and on said 14th day of January, 1903, on his own behalf and in behalf of his associates, took the initial steps required by law to locate the land in controversy as a placer claim by its legal subdivisions, and that thereafter, on the 17th day of January, 1903, said location so initiated was completed by the filing of a certificate of location in the recorder's office of El Paso county, Colo., whereby said land was completely segregated from the public domain and constituted a valid and binding location of the Wells placer.

'(4) Because the acts done by the defendant Saxton and his associates here in evidence, were done long prior, to-wit: more than one year, to the attempted location of the so-called Nevada placer claim, wherefore the alleged location of the Nevada placer is absolutely void.'

Mr. McAllister:

'I understood you to say, in introducing this subject, that it is conceded by you that should this court hold that the marking of the boundaries, or corners, or angles of a placer mining claim located on surveyed lands is necessary under the laws of the state of Colorado or the United States, then that the result of that conclusion must necessarily be that the court will instruct the jury directing a verdict for the plaintiffs instead of directing a verdict for the defendants.'

Judge Dixon:

'I said this: That if the court does not sustain my motion, he will necessarily direct a verdict for the plaintiffs; of course your phraseology does not suit me exactly; I will argue that matter and you will have full opportunity to respond. I will say this: There is no doubt that if he overrules my motion, he must necessarily direct a verdict for your clients; that is my opinion of it.'

This is the motion of the plaintiffs.

'Plaintiffs now move the court to direct the jury to return a verdict in their favor, finding the issues joined in favor of the plaintiffs, and that they are the owners and have established their right to the possession and occupancy of the premises described and claimed in this section, to-wit: The Nevada placer mining claim, embracing the N.W. 1/4 of the S.E. 1/4, the E. 1/2 of the S.W. 1/4 and the S.E. 1/4 of the N.W. 1/4, all in section 12, township 12 south of range 62 west of the sixth Principal Meridian, by virtue of a full compliance with the statutes of the United States and of the state of Colorado, in reference to the discovery, location and holding of placer mining claims; and for grounds of this motion plaintiffs allege:

'(1) That under the undisputed evidence in this case it appears that the plaintiffs are the owners, and have established their right to the possession and occupancy of the Nevada placer mining claim, by virtue of a full compliance with the statutes of the United States and of the state of Colorado, in reference to the discovery, location and holding of placer mining claims.

'(2) Because it appears that the so-called Wells placer mining claim, claimed by the defendants, is invalid, of no effect and void

'(3) Because it appears from the evidence that the exterior boundaries, corners or angles of the said Wells placer mining claim were never marked by the locators thereof with substantial posts, or in any manner, so that the boundaries of said claim could be readily or otherwise traced, as required by the statute of the United States and of the state of Colorado.'

The motion of defendants was denied and that of plaintiffs allowed. The jury was instructed to return a verdict for the latter, finding the issues against the defendants and for the plaintiffs, which was done.

The motions were argued and submitted together. Upon the ruling of the court, directing a verdict for plaintiffs, the defendants made no request for a submission of any fact question to the jury. It is contended that, upon these motions, the whole case was submitted to the court for final determination, both upon the facts and the law, as if a jury had been waived.

There are for consideration, upon the record as made, these main questions:

First. Was the interposition of the motions by the respective parties for a directed verdict, upon the proofs adduced and the admission of counsel, as above shown, a submission of the whole case for determination by the court upon the facts and law, since no request was made by defendants, after the court's ruling, for a jury finding on any question of fact?

Second. Under the statutes of the United States or of the state of Colorado, is it necessary, in order to a valid location, that the corners or angles of a placer mining claim located on surveyed land be marked by monuments?

Third. If the statute of the state of Colorado requires such marking, is it in conflict with the federal law upon this subject?

That these motions were intended to and did submit the whole controversy to the court for a final judgment, on the question of the necessity of staking a placer claim at its corners or angles, where located on surveyed land, seems too clear for discussion. The motion of defendants in connection with the statement of their counsel, was in effect an admission that its claim was not staked, or that in any event they did not rely upon that fact, coupled with the request that the court pass upon the question as to whether staking was necessary; also upon the further contention that, if the state statute contemplates staking, under the circumstances here disclosed, such requirement is in conflict with the federal law.

Upon the record the question as to whether the Wells placer was staked was abandoned, for it appears therefrom that counsel for defendants repeatedly disclaimed any purpose to rely upon the fact that it was staked, but submitted the case solely upon the theory that, the location thereof being on surveyed land, staking was unnecessary. Beside, as matter of law, where, at the close of the testimony, each party moves for a directed verdict and neither party, after a ruling on such motions, requests the submission of any fact question to the jury, the decision of the court has the effect of a general verdict, and is a finding upon all fact questions, in favor of the successful party. This proposition is practically of universal recognition.

In the case of Michigan Home Colony v. Tabor, 141 F. 332, 72 C.C.A. 480, that court, speaking through United States Circuit Judge Adams upon this proposition, said this:

'The rule is firmly established that when each party to a cause on trial before a jury requests a peremptory instruction in his favor, he thereby consents that the court shall find the facts on the issues joined. The law impresses upon the finding so made all the incidents of a general finding by the court in a case submitted to it after waiver of a jury by the parties. In such case the appellate court does not consider the weight of evidence. The only questions for review, beside the sufficiency of the pleadings to support the judgment, are whether there is any substantial evidence to support the finding and whether there was reversible error committed in the admission or rejection of evidence.'

This principle is supported by a mass of cases, both from the federal and state courts, from among which we cite the following: Sundling v. Willey, 19 S.D. 293, 103 N.E. 38; Beuttell v. Magone, 157 U.S. 154, 15 S.Ct. 566, 39 L.Ed. 654; Yankton Fire Ins. Co. v. Fremont, E. & M. V. R. Co., 7...