Wakeman v. Norton

• Decision Date: 01 June 1897
• Citation: 24 Colo. 192,49 P. 283
• Parties: WAKEMAN v. NORTON.
• Court: Colorado Supreme Court

49 P. 283

24 Colo. 192

WAKEMAN v. NORTON.

Supreme Court of Colorado

June 1, 1897

Appeal from district court, Dolores county.

Action by William B. Norton against Fenno Wakeman to recover the value of ore wrongfully taken from plaintiff's claim. From a judgment for plaintiff, defendant appeals. Reversed.

On Feburary 21, 1893, William B. Norton commenced this action against Fenno Wakeman in the district court of Dolores county. On May 16, 1893, an amended complaint was filed, upon which the cause was tried, wherein it is inter alia averred that from March 1, 1887, until January 4, 1893, the plaintiff was the owner and in the actual occupation and possession of the Zona K lode mining claim, situate in the Pioneer mining district, county of Dolores, state of Colorado, describing the same by metes and bounds; that during that time the defendant wrongfully and secretly broke, extracted, and removed therefrom silver, lead, and gold bearing ores, to the amount and value of $30,000. The defendant, in his answer denies each and every allegation of the complaint not thereinafter admitted or qualified, and admits that between April 1, 1891, and October 15, 1892, he, as owner in and lessee of his co-owners of the Ethlena lode mining claim situate in the same mining district, and adjoining the Zona K claim on the west, in following the Ethlena lode on its dip entered the ground in controversy, and took and removed ore therefrom of the aggregate value of $2,500, and, as an affirmative defense, in substance avers that there exists a certain lode and vein within the surface boundaries of the Ethlena claim, which extends on its course and strike lengthwise through said claim, in the same general direction as its sidelines; that said lode and vein is in rock in place, and extends downward with a dip and trend to the eastward, and departs so far from a perpendicular in its downward course that it passes through and beyond the eastern sideline of said claim, drawn vertically downward, and into ground within the surface boundaries of the Zona K claim that he, as a co-owner in and lessee of the other owners of the Ethlena claim, commenced work on said vein and lode below its apex, and within the surface boundaries of the Ethlena; that, in exploring the same on its dip, he ran drifts, stopes, and levels beyond and to the east of the eastern sideline of the Ethlena, into the ground in controversy; that all of said work was done upon and in said vein; and that no other entrance was made by him upon the Zona K claim, and whatever ore he may have taken was taken in the exercise of his right to follow said vein on its dip. Plaintiff, by his replication, traversed the allegations of the answer. The cause was tried to a jury. Upon the conclusion of plaintiff's evidence in chief, a motion for nonsuit was interposed and overruled. Thereupon evidence was introduced by the defendant on his part, and evidence in rebuttal by the plaintiff. Verdict and judgment rendered in favor of plaintiff for $3,000 and costs. To reverse this judgment, Wakeman prosecutes this appeal.

John Kinkaid and H. M. Hogg, for appellant.

Morrison & De Soto, for appellee.

GODDARD J. (after stating the facts).

The specifications of error are numerous, but the important objections they present may be included in the following questions: First. Was the action rightly prosecuted in the name of the plaintiff? Second. Was the evidence introduced by plaintiff sufficient to show a valid location of the Zona K claim, and prima facie ownership by him of the ground from which the ore was taken? Third. Did the court err in giving and modifying certain instructions defining the law relative to apex rights?

Upon the trial of the cause, the defendant undertook to show that the plaintiff was not the real party in interest, by inquiring of plaintiff, upon cross-examination, if he had not, in parting with his title to the Zona K claim prior to the commencement of suit, transferred to his grantee the right of action for the trespass complained of. We think the objection to this inquiry was properly sustained. Aside from the reason that it was not proper cross-examination, it was clearly inadmissible under the pleadings, such defense not having been pleaded. The defense that a plaintiff is not the real party in interest, to be available, must be specially pleaded. Pom. Rem. & Rem. Rights, § 711, and cases cited.

It is urged in support of the second objection that the evidence introduced by plaintiff was insufficient to show a valid location of the Zona K claim, or title thereto in the plaintiff, and that it also failed to show that the vein from which the ore in controversy was taken had its top or apex within the surface boundaries of that claim, but that it did disclose the fact that such apex was not so included. It appears from the evidence that a location certificate of the Zona K claim was filed in 1880, by one McKenzie. Plaintiff testifies that he purchased the claim from one Dumont, and entered into possession in 1885. At that time he found a notice posted at the point of discovery that the claim was staked, without specifying in what manner; that the discovery disclosed good ore at the outcrop of the Zona K vein; that he was in possession of the claim from the date of his purchase until he sold the same, in 1894; and that he did 110 feet of work on the claim. It further appears that an amended location certificate made by him was recorded on September 15, 1890, and that he also made and filed another amended location certificate on October 2, 1891. The defendant asserts no claim to the Zona K claim itself, but justifies his intrusion within its surface boundaries upon his right to follow on its dip a vein which has its top or apex outside such surface boundaries. Notwithstanding his omission to produce...