Van Zandt v. Argentine Min. Co.

• Decision Date: 16 June 1881
• Citation: 8 F. 725
• Parties: VAN ZANDT, Trustee, v. THE ARGENTINE MINING CO.
• Court: U.S. District Court — District of Colorado

8 F. 725

VAN ZANDT, Trustee, v. THE ARGENTINE MINING CO.

United States Circuit Court, D. Colorado.

June 16, 1881

Plaintiff offered evidence to prove that the claim was located by Walls and Powell in the year 1875. As to marking the boundaries of the claim on the surface of the ground, and the finding of valuable ore in the discovery shaft, the evidence was slight and defendant objected to plaintiff's record title on the ground that these facts were not shown. As there was some evidence on both points, the court held that the paper title should be received. In the original certificate of location the description of the claim contained no reference to a natural object or permanent monument; but this was corrected in an amended certificate, and both were received, although it was held that the first was fatally defective. Having declared for the entire interest in the claim, plaintiff failed to show title from the original locators to an undivided one-third interest. One of the deeds upon which he relied was not sufficiently proved, and upon defendant's objection it was excluded. Thereupon he moved for leave to make the grantor in that deed, in whom the title to the said one-third interest would rest, (assuming that instrument to be void,) a party plaintiff in the suit. And this was denied by the court: First, because the deed, for aught that appears, was effectual between the parties to it to transfer the property; and, second, a stranger should not be made a party to the suit without his knowledge and consent, which is not shown. Plaintiff then suggested to the court that, upon his declaration for the whole interest, he could take a verdict for two-thirds, pursuant to sixth paragraph of section 251 of the Code of Procedure of the state. But the court was of the opinion that section 249 of the Code, which requires the plaintiff to state the interest claimed by him should control, and that plaintiff, having declared for the whole, could not recover an undivided interest. Nevertheless the plaintiff was allowed to amend his complaint at the trial so as to demand but two-thirds interest, and the court said that this was often done; for, the plaintiff having first asked judgment for the whole, the defendant cannot now be surprised that he asks only a part. In the further trial of the cause it appeared that the defendant claimed under two locations, called the Camp Bird and Pine, which it held by patent from the government. Plaintiff's claim is in the general course north and south, or, to be exact, north 33 deg. 10 min. east. Defendant's two claims, overlapping the other somewhat transversely, are in the general course east and west. The contesting claims have the relation of the jaws of shears, and the ground in controversy is that included in the space of intersection and a small part of the adelaide claim immediately north of the intersection. The discovery shaft of the Adelaide claim is or was at the north end of the claim, and some 300 or 400 feet from the ground in controversy. By later operations, and the erection of a mill and ore-house in the vicinity, it had been filled, and the position of it in the claim was not very well shown. Between this shaft and the ground in controversy there were no openings to prove that the lode extended in that direction and whether it did so extend was strongly controverted. Defendant gave evidence to prove that no mineral was found in the discovery shaft, and that the condition of the ground was such that, if any was found there, it was broken and fragmentary, or, in other words, of the character of float mixed with the slide on the surface of the mountain. It appeared, however, that plaintiff and his grantors had maintained possession of the premises from the first, had made valuable improvements on the claim, and had carried on extensive mining operations at and near...