Walsen v. Gaddis

• Decision Date: 22 March 1948
• Docket Number: 15701.
• Citation: 118 Colo. 63,194 P.2d 306
• Parties: WALSEN v. GADDIS et al.
• Court: Colorado Supreme Court

194 P.2d 306

118 Colo. 63

WALSEN v. GADDIS et al.

No. 15701.

Supreme Court of Colorado, en Banc.

March 22, 1948

Error to District Court, Clear Creek County; Osmer E. Smith, Judge.

Action by Fred G. Walsen, as executor of the estate of William E Renshaw, deceased, against Arthur V. Portenier for damages to recover possession of certain mining property, and for injunctive relief. Katherine B. Gaddis, trustee, was, by consent, substituted for L. Ward Bannister and J. W. Howell interveners and sole surviving statutory trustees of the Consolidated Franklin Mines Company, a Colorado corporation and Joseph P. Ruth was made a party defendant as lessee of interveners who sought injunctive relief and damages for value of ores alleged to have been wrongfully extracted by defendant, Portenier, under a lease or license from plaintiff. To review the judgment for interveners, plaintiff brings error.

Judgment reversed, and cause remanded.

John W. Shireman and William E. Doyle, both of Denver, for plaintiff in error.

L. Ward Bannister, H. Gayle Weller and Warren B. Hale, all of Denver, for defendants in error.

ALTER Justice.

Fred G. Walsen, as executor of the estate of William E. Renshaw, deceased, brought an action against Arthur Portenier for damages; to recover possession of certain mining property in Clear Creek county; and for injunctive relief. Judgment was entered in favor of Walsen, to review which Portenier sued out a writ of error and the judgment was affirmed. Portenier v. Walsen, Ex'r, 112 Colo. 130, 146 P.2d 894. While the action was pending in the district court, L. Ward Bannister and J. W. Howell, as trustees, filed therein a petition in intervention, and, upon trial of the issue between Walsen and interveners, judgment was entered in favor of the latter, and plaintiff by writ of error here seeks a reversal of that judgment.

In the petition in intervention it is alleged that L. Ward Bannister and J. W. Howell are the sole surviving directors of the Consolidated Franklin Mines Company, a Colorado corporation, the charter of which has expired, and, by virtue thereof, are the sole surviving statutory trustees of said Colorado corporation and the property thereof. It is further alleged that Portenier, holding a lease or license from Walsen on mining properties belonging to Walsen as executor, which are in close proximity to those of interveners, is trespassing upon interveners' mining claims and mining and extracting valuable ores therefrom. Interveners seek injunctive relief, and damages for the value of ores alleged to have been wrongfully extracted by Portenier under his lease or license from Walsen.

Portenier answered the petition in intervention, denying generally the allegations thereof, and alleging that subsequent to an adverse judgment entered by the trial court in Portenier v. Walsen, supra, he went into possession of the mining property here in dispute by virtue of a sublease from one Joseph Ruth, who, it is alleged, is a lessee of the interveners.

Upon motion of plaintiff and interveners, Joseph Ruth was made a party defendant, who, thereupon, appearing by one of the counsel for interveners here, filed his answer admitting the allegations of interveners' petition.

Walsen filed his answer to the petition in intervention which, so far as necessary here, may be treated as a general denial.

At the pretrial conference the parties stipulated that:

(1) Walsen, as executor, is the owner of the following lode mining claims, situate in the Idahoe Mining District, Clear Creek county, Colorado:

Washington, U.S. Survey No. 65.

Freighter's Friend, U.S. Survey No. 67.

Guy, U.S. Survey No. 7441.

Gem, U.S. Survey No. 628.

(2) L. Ward Bannister and J. W. Howell, as trustees, were the owners of the following mining claims, situated in the district, county and state aforementioned:

Franklin, U.S. Survey No. 73.

Mary F. and Oro Fino, U.S. Survey No. 5757.

(3) The trial should be to the court without the intervention of a jury.

(4) All maps to be used at the trial should be deposited with the clerk of the district court ten days Before the trial for inspection and use by the parties hereto.

(5) Plaintiff's exhibits, being photostat copies of records in the office of the Director of Surveys of the United States, be admitted in evidence without proof from the custodian of said original records.

With respect to the claims owned by Bannister and Howell as trustees, the following dates were admitted without further proof:

Oro Fino Lode Mining Claim, U.S. Survey No. 5757.

Located July 6, 1888.

Location certificate recorded September 4, 1888.

Patent issued May 18, 1895.

Mary F. Lode Mining Claim, U.S. Survey No. 5757.

Located November 8, 1888.

Location certificate recorded January 12, 1889.

Patent issued May 18, 1895.

Franklin Lode Mining Claim, U.S. Survey No. 73.

Located November 3, 1865.

Location certificate recorded November 30, 1865.

Receiver's receipt issued January 3, 1871.

Patent issued May 29, 1871.

Concerning the claims owned by the estate of William E. Renshaw, deceased, the following dates were admitted without further proof:

Washington Lode Mining Claim, U.S. Survey No. 65.

Located March 24, 1866.

Location certificate recorded March 24, 1866.

Receiver's receipt issued August 30, 1870.

Patent issued February 15, 1871.

Freighter's Friend Lode Mining Claim, U.S. Survey No. 67.

Located September 6, 1866.

Location certificate recorded September 6, 1866.

Receiver's receipt issued August 31, 1870.

Patent issued March 2, 1871.

The Guy Lode Mining Claim, U.S. Survey No. 7441.

Located first as XX Lode on March 3, 1892.

Location certificate recorded March 3, 1892.

Located as Guy on April 15, 1892.

Location certificate recorded April 15, 1892.

Patent issued February 6, 1893.

The Gem Lode Mining Claim, U.S. Survey No. 628.

Located August 30, 1875.

Location certificate recorded August 31, 1875.

Relocated July 19, 1876.

Recorded June 19, 1876.

Patent issued December 31, 1877.

After the case was docketed here, Katherine B. Gaddis, trustee, was, by consent, substituted for L. Ward Bannister and J. W. Howell as trustees.

The court adopted interveners' exhibit 1 as the basis of its findings and judgment, a photostat copy of which being: RPT.CC.1948112758.00010

(Image Omitted) The court's findings, in part, were:

'3. The Court finds that the ores in controversy which lie along the underground courses 7, 8 and 10 and in the Portenier Winze, referred to in Intervenor's Exhibit I, and which the Intervenors' evidence designated as the Freighter's Friend-Franklin vein, have their apex on the surface of the ground along course 1, 5, 18, 12, 21 and 17, designated on Intervenors' Exhibit I, and that the ores in controversy found underground along course 9 and 11 (Intervenors' Exhibit I) referred to in the Intervenors' evidence as the Washington-Mary F. vein have their apex on the surface along course 2, 3, 13, 21, 23, 22, 24 and 25 on Intervenors' Exhibit I; that a photostatic copy of Intervenors' Exhibit I is hereto attached.

'4. That the ores in controversy do not have their apex on Washington 65, Gem 628 or Guy 6441 lode mining claims as contended by Plaintiff.

'5. That the Freighter's Friend-Franklin vein is a mineralized vein and is the discovery vein of the Franklin 73; that this vein, on its strike from the west to the east, enters the Freighter's Friend 67 at the southerly side near the westerly end line and continues in said Freighter's Friend 67 until it enters Washington 65 and then enters the west end line of the Franklin 73 and on its course or strike to the east passes out of the end line of the Franklin 73; that from the point that said Freighter's Friend-Franklin vein enters said Franklin 73's west end line until it departs out of the east line of Franklin 73 the apex of such vein and the vein on its strike or course lies entirely within the surface boundaries of the Franklin 73, first as located and secondly as patented.

'6. That the Washington-Mary F vein is a mineralized vein and within the surface boundaries of the Mary F 5757 as patented is the discovery vein of that claim, and on its strike from the west to the east enters the Washington 63 through the west end line thereof, thence runs through said Washington 65 in a northeasterly direction and departs from the south side line of the Washington 65 and enters the Franklin 73 at a point along course 3, 4 of the Franklin 73 at a point approximately 9.35 feet east of the west end line of the Franklin 73; that from the point where said vein enters the Franklin 73 vein, on its strike or course to the East and the apex thereof lie entirely within the surface boundaries of the Franklin 73 and the Mary F 5757, first as located and secondly as patented, and belongs to the Franklin 73 and the Mary F 5757.

'7. That the Franklin 73 patent and its extralateral rights thereunder and its rights to veins which unite on their dip relates back to the date of its location as against the later locations of the Washington 65, Freighter's Friend 67, Gem 628 and Guy 6441, and by virtue of its being the earliest location is entitled to all the ores below the point of union of the Freighter's Friend-Franklin and Washington-Mary F veins and that the union of such veins on their dip is in the Portenier winze and proximity thereto.'

The judgment entered, based on the findings, was:

'3. That the ores in controversy which lie along underground course 7, 8 and 10 and in the Portenier winze referred to in Intervenors' Exhibit I, and which the Intervenors' evidence designated as the Freighters Friend-Franklin vein have their apex on the surface of the ground along...