Strepy v. Stark

• Decision Date: 31 October 1884
• Parties: STREPY and others v. STARK and others.
• Court: Colorado Supreme Court

5 P. 111

7 Colo. 614

STREPY and others v. STARK and others.

Supreme Court of Colorado

October 31, 1884

Appeal from district court of Chaffee county.

Hartenstein & Sindlinger, for appellants.

Rhett & Hobson, for appellees.

STONE, J.

This is a contest between two sets of claimants for the possession of a certain mining claim, which appellees claim as the 'Little Belle' lode, and appellants as the 'Negro' lode. Appellees--the plaintiffs below--alleged right of possession by virtue of discovery prior possession, location, and compliance with the mining laws relating thereto. Appellants, as defendants, merely denied in their answer the several allegations of the plaintiffs' complaint. The ground of defense upon the trial was chiefly that appellees had failed to comply with the laws, in not doing sufficient work on the claim, previous to appellants' possession, to entitle them to hold it. Appellees established their discovery of mineral on the ground, as original locators, in June, 1879, and their witnesses testified that a discovery shaft was sunk that year to a depth of over 10 feet; that a location was made, in accordance with law, in July, and a certificate thereof filed in September of that year; that when they went to resume work on the mine the next year, appellants were in possession. The testimony of appellants was that they first came upon the ground in June, 1880, and found a small cut or excavation not more than four or five feet deep, exposing a little mineral, and that the only stake they found was an old one at this excavation, containing the name of one of the appellees and the date 1875; that they went to work in the same excavation, and sunk to the depth of about 15 feet, took out mineral, and located the claim by the name of the Negro lode, and filed location certificate in August following. The ground claimed by each side is shown to be, practically, if not identically, the same, and the appellants seem to have claimed and located, or, rather, relocated, the mine, and asserted right thereto, on the ground that the discoverers and former occupants had failed to comply with the law in respect to the necessary work and staking, and had, therefore, either abandoned the claim or forfeited their right thereto, if they ever had acquired any right at all. The verdict and judgment below were in favor of the plaintiffs, upon the third trial of the case, and appellants seek to have the judgment reversed because the verdict, as they allege, is contrary to the weight of the evidence; that improper evidence was admitted on the trial; that proper instructions prayed were erroneously refused by the court; and that the jury were improperly influenced by remarks made by the judge, pending their deliberations, for the purpose of inducing them to agree upon a verdict.

Upon the matter of the admission of evidence which is assigned for error, the principal objection, as argued by counsel for appellants, appears to be made to the admission of appellees' amended certificate of location. Both parties had made and recorded amended location certificates. The original location certificate of appellees was filed for record September 20, 1879, and their amended certificate on June 16, 1881. The original certificate of appellants was filed August 30, 1880, and their amended certificate, September 26, 1881. The original and amended certificates of appellees were offered in evidence together, and over the objection of appellants were admitted, with the following remarks in the nature of instructions by the court to the jury, to-wit:

'Upon a proper identification of the certificates they will be admitted in evidence, and the jury will be instructed that the first certificate is in itself void, and it confers upon the plaintiffs no title; that if they find from the evidence that before the amended certificate was filed for record defendants acquired rights in the premises, or an interest in the premises, then they shall disregard the second certificate; but if they find that defendants acquired no such interest, then the second certificate will relate back under law to the plaintiffs' [location,] and will confer upon plaintiffs the rights which would have been acquired had the first been a proper location certificate.'

Before the close of the evidence on the behalf of appellees the court ordered their original location certificate withdrawn, giving the reason therefor in the following words, to-wit:

'On a little reflection,--I state this before plaintiffs close their case,--I have concluded that the amended location certificate performs all the offices that the original could, and therefore I am going to withdraw it from the jury, and leave the amended certificate before the jury with a proper instruction.'

The original location certificate of appellants was also held void and excluded, while their amended certificate was admitted in evidence. The objection made by appellants to the admission in evidence of appellees' amended location certificate is put upon the ground that this certificate was not filed for record until after the commencement of the suit; and, in support of this objection, counsel invoke the rule that a plaintiff in ejectment must stand or fall on the right he had when he commenced his action, and cannot make or strengthen his case by any after-acquired right or title. The question here raised is one of importance in this class of cases, and one that, so far as we can ascertain, has not before been passed upon by any court of last resort; so that we are left to determine it without the aid of adjudged precedent, but we think the rule contended for by appellants' counsel, as above stated, is inapplicable to a case like this. The question rests chiefly if not wholly upon what we are to consider as the nature, purpose, and functions of such location certificate. Its objects and functions are peculiar; it differs from ordinary documentary muniments of title in that it is not a title nor proof of title; nor does it constitute or of itself establish the possessory right in issue, and to which it relates. It is purely a creature of the statute, and, under the evident legislative intent, its purposes and functions are twofold: When duly recorded, it becomes notice to the world of the facts therein set forth, namely,--a description of the premises claimed, and by whom and when located, in order to secure the discoverer or claimant against others seeking to locate the same ground,--and is thus constructive notice of the claimants' possession.

In addition to this purpose, which it is to serve, it would seem that by statute such certificate is made one of the steps requisite to constitute a perfected mining location.

Under the law, four certain things are to be done in order to perfect a location: First, the sinking of a discovery shaft upon the lode 10 feet in depth, or deeper if necessary, to disclose mineral in place; second, the posting of a notice at the place of discovery, giving the name of the lode, the name of the locator, and the date of discovery; third, marking the surface boundaries of the claim by posts, in the manner pointed out by statute; and, fourth, making and recording a location certificate containing the name and description of the lode, the name of the locator, and the date of the location. It will be noted that the statute does not require that the certificate shall contain a statement that the discovery shaft has been sunk the requisite depth, or so as to disclose mineral, nor that the discovery notice has been posted, or boundary stakes set, which things are made the chief requirements on the part of a locator in order 'to locate his claim' before filing the location certificate; although it is usual to include such statement in the certificate, when the performance of such work--posting and staking--is a pre-existing fact. And it has been held by the United States circuit court of Colorado that, though the locator of a mining claim may not have sunk his shaft to the discovery of mineral in place prior to filing his location certificate, yet, if he shall thereafter so sink the shaft and disclose the lode, he will hold, as against all who had not, therefore, acquired an interest in the lode, the same as if he had uncovered it before the survey and filing the certificate, such discovery relating back to the location. Zollars & H. C. C. M. Co. v. Evans, 2 McCrary, 39; S.C. 5 F. 172.

Where the right of possession is founded upon an alleged compliance with the law relating to a valid location, all the necessary steps therefor, aside from the making and recording of the location certificate, must, when contested, be established by proof outside of such certificate; the record of the certificate being proof itself of its own performance as one of such steps, and, in regular order, the last step in...