Thomas v. Chisholm

• Decision Date: 17 June 1889
• Citation: 13 Colo. 105,21 P. 1019
• Parties: THOMAS et al. v. CHISHOLM et al.
• Court: Colorado Supreme Court

21 P. 1019

13 Colo. 105

THOMAS et al. v. CHISHOLM et al.

Supreme Court of Colorado

June 17, 1889

Error to district court, Chaffee county.

Action to determine adverse mining claim, brought by Edwin E Thomas, Cyrus W. Pusher, and John Taylor against Robert Chisholm, Mary J. Riggins, H. E. Chapman, and John P Hudgent. Verdict and judgment for defendants, and plaintiffs bring error.

P.J. Caston, for plaintiffs in error.

H W. Hobson and M. G. Cage, for defendants in error.

ELLIOTT J.

The parties to this action occupied the same positions as plaintiffs and defendants in the court below as in this court. Defendants having applied for a patent to a certain mining claim, known as the 'Tecumseh Lode,' plaintiffs filed their adverse claim thereto, and commenced this action, claiming the same premises under the name of the 'Starlight Lode.' The defendants based their title upon a prior location made by one Joseph Hudson and the Kansas City Mining & Smelting Company. The testimony tended to show that said smelting company was a corporation organized under the laws of the state of Colorado; but the averments of the answer do not show the organization to have been either an association of persons unincorporated, or a corporation organized under the laws of the United States, or of any state or territory thereof; nor is the character, capacity, or citizenship of the organization, or of any of its constituent members, or of Joseph Hudson, in any manner set forth in the answer. The verdict and judgment were in favor of the defendants, and plaintiffs bring the case to this court by writ of error.

The principal question submitted for our determination is, can a corporation organized under the laws of the United States, or some state or territory thereof, make a valid location of a mining claim? At the time of the submission of this cause in this court there had not been an authoritative determination of this question; but we regard the opinion recently delivered by the supreme court of the United States in the case of McKinley v. Wheeler, 9 S.Ct 638, as decisive of the question. In that case the plaintiff, McKinley, based his title in part upon a location made by a corporation, all the members of which were citizens of the United States, and were severally and individually qualified and competent to enter upon the public domain, and acquire title to mineral lands upon it by discovery and location. The complaint showed these facts. The defendants demurred to the complaint on the ground that the corporation could not make a valid location. Mr. Justice FIELD, delivering the opinion of the court, says: 'Section 2319 of the Revised Statutes must be held not to preclude a private corporation formed under the laws of the state, whose members are citizens of the United States, from locating a mining claim on the public lands of the United States.' It is quite unnecessary to repeat, as it would be quite impossible to improve upon, the reasoning by which the learned jurist arrives at the conclusion above stated. Defendants in the case at bar, having recovered a general verdict in their favor, the judgment thereon must be reversed, unless the...