Sullivan v. Sharp

• Decision Date: 01 May 1905
• Parties: SULLIVAN et al. v. SHARP et al.
• Court: Colorado Supreme Court

80 P. 1054

33 Colo. 346

SULLIVAN et al. v. SHARP et al.

Supreme Court of Colorado

May 1, 1905

Appeal from District Court, Teller County; Wm. P. Seeds, Judge.

Action by John Sullivan and others against J. R. Sharp and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

The only question argued and presented for determination by this appeal is the effect of an additional or amended location certificate, as provided in section 3160, Mills' Ann St., on the title to a mining location discovered and located within the boundaries of a prior valid location, as against the title of the claimant to the latter, who had neglected to perform the annual assessment for the year next preceding the date of the filing of such amended certificate. The subjectmatter of controversy is the conflict between two mining locations known as the Quaking Asp and Dog Nest lodes. These two locations cover practically the same territory. The Quaking Asp is the prior location. The Dog Nest was discovered and located within the boundaries of the Quaking Asp in the year 1900. The Dog Nest applied for a patent which application was adversed by the Quaking Asp. The pleadings are of the character usually filed in adverse cases. By paragraph 7 of the answer filed on behalf of the claimants of the Dog Nest, it was averred that the claimants of the Quaking Asp had failed and neglected to perform the annual assessment on their claim for the year 1900, and that subsequent to the 1st day of January, 1901, the claimants of the Dog Nest filed an amended and an additional location certificate on their claim. Under this location they contended that the overlapping territory embraced within the boundaries of the Quaking Asp was duly and legally located and appropriated as a part and parcel of the Dog Nest lode. On the trial it was stipulated that the only issue between the parties was the performance of the annual assessment work on the Quaking Asp for the years 1899 and 1900. The testimony was conflicting on these questions of fact, but at the conclusion of the trial the court ruled that the filing of the amended and additional location certificate on the Dog Nest was of no avail unless it appeared that the original discovery and location of that claim was on unappropriated public domain. The jury returned a verdict in favor of the plaintiffs, and defendants appeal.

S.D. Crump, Graham & Campbell, and Temple & Crump for appellants.

Chas. J. Perkins and E. C. Stimson, for appellees.

GABBERT C.J. (after stating the facts).

According to the verdict, the annual labor for 1899 on the Quaking Asp had been performed. It was therefore a valid, subsisting location when title to the premises in controversy was sought to be initiated by the claimants of the Dog Nest. A location based upon a discovery within the limits of an existing and valid location is void. Lebanon M. Co. v. Con. Rep. M. Co., 6 Colo. 371; Kirk v. Meldrum, 28 Colo. 453, 65 P. 633; Michael v. Mills, 22 Colo. 439, 45 P. 429; Belk v. Meagher, 104 U.S 279, 26...