Walsh v. Henry

• Decision Date: 03 December 1906
• Citation: 88 P. 449,38 Colo. 393
• Parties: WALSH v. HENRY.
• Court: Colorado Supreme Court

88 P. 449

38 Colo. 393

WALSH v. HENRY.

Supreme Court of Colorado

December 3, 1906

Rehearing Denied Jan. 7, 1907.

Appeal from District Court, Ouray County; Theron Stevens, Judge.

Adverse suit by Thomas F. Walsh against Lyman I. Henry. From a judgment for defendant, plaintiff appeals. Reversed.

Thomas, Bryant & Lee and Story & Story, for appellant.

Charles F. Potter, for appellee.

GUNTER J.

This was an action in support of an adverse, filed by the owner of the Spar Lode mining claim, against the application for a patent on the Iva C. claim. The verdict and judgment were for the defendant.

The discovery cut relied on by the defendant in support of his application for a patent was in the westerly part of his claim as described in the location certificate and as staked on the ground. The discovery cut of the plaintiff was in the northeasterly part of the territory, inclosed by the same boundaries. The area in conflict between the claims, as they were, respectively, staked upon the ground, embraced the discovery cut of the plaintiff, but not that claimed by the defendant. The location of plaintiff was not initiated until years after the initiation of defendant's claim and the expiration of the legal time for the making of a discovery cut by the defendant. Plaintiff contended that no discovery cut had been made on the claim of defendant although the legal time for making it had expired when plaintiff initiated his location, and that therefore the territory within the Iva C. boundaries was at that time unappropriated mineral land subject to location. If such ground was subject to location at the time plaintiff initiated his claim, then under the undisputed evidence plaintiff had in all respects complied with the law, and was entitled to a verdict for the area in conflict. It was a vital issue for the jury to determine whether a discovery cut had been made by defendant at the time plaintiff initiated his location. It was highly important to the contention of plaintiff that the jury be clearly charged that, if defendant's location was invalid because of the absence of a discovery cut at the time plaintiff made discovery, then the territory within the boundaries of defendant's claim was subject to location. Plaintiff contends that the law was not so given to the jury, and assigns in support thereof particularly instructions 4 and 21, given at the request of defendant. Instruction 21 is as follows: 'The court instructs you that the purpose of the law in requiring the staking of the boundaries of a mining claim, and the filing of a location certificate, is two-fold; first, to define the part of the public domain which the locator desires to appropriate as against the government, and, secondly, to give notice to other locators of his location and its extent and lines upon the public domain. In this case it is admitted by the locator of the Spar claim that, when he entered pon and within the lines of the Iva C. lode, to make his location, he knew that the claim had been surveyed for patent, and the boundaries were marked upon the ground, and the situs of the claim was familiar to him, and he also knew that the defendant had posted his patent plats and notices as required by law. Under this state of facts, the plaintiff must be considered a trespasser, unless he shall prove to you by a fair preponderance of evidence that at the time of such entry upon the Iva C. ground he honestly believed the ground so entered to be unoccupied and unappropriated public domain open to location, and, before the plaintiff can prevail in this suit, he must prove to you that at the time he so entered upon the Iva C....