Wells v. Davis
| Decision Date | 21 July 1900 |
| Court | Utah Supreme Court |
| Parties | HEBER M. WELLS, APPELLANT v. M. W. DAVIS AND C. H. LASHBROOK, RESPONDENTS |
Appeal from the Third District Court Salt Lake County. Hon. Ogden Hiles, Judge.
Action by plaintiff in aid of a protest and adverse claim to certain mining ground. From a judgment for defendants plaintiff appealed.
Affirmed.
Messrs Ferguson & Cannon, for appellant.
The court erred in admitting the defendants' exhibit "B" in evidence the notice of location of the Gold Reef Lode, the same not complying with Section 2324 of the Revised Statutes of the United States. Darger v Lesieur, 9 U. 192; i. d. 8 U. 160.
The plaintiff's contention is that the veins should be described, the course of the work should be given, the proximity of the work to the locations, and whether or not such work so done had a tendency to develop said claims within the meaning of the decisions was a question of fact upon which an expert's opinion was not required, that the court was as capable of judging whether such work had a tendency to develop the claims after hearing the facts as the expert himself, and that such expert's opinion was hearsay. But if the expert's opinion is admissible to show that such work had a tendency to develop these claims still he must either have been acquainted with the lodes, the condition of the grounds, the courses of the veins as to qualify him as an expert, or such hypothetical questions should have been put to him upon which to found his judgment, neither of which was done in this case.
One of the cardinal rules governing the admission of opinion evidence is that it must usually not alone be given by an expert, but must also be of such a character as not to fall within the range of common experience and observation, and therefore not be intelligible to jurors without the aid of an opinion.
See 12 Am & Eng. Enc. 2d Ed. p. 458, and numerous cases cited. Stunmore v. Shaw, 6 Am. St. Rep. 412; Hammond v. Woodman, 66 Am. Dec. p. 228.
Messrs. Dey & Street, for respondents.
The error assigned to the admission in evidence of the location notice of the Mountain Mayd and of the Gold Reef lode are untenable. The notices are sufficient. Farmington Gold Mg. Co. v. Rhymney Gold & C. Co., 58 P. 832, Utah; Wilson v. Triumph C. Mg. Co., 56 P. 303, Utah; Hammer v. Garfield Mg. Co., 130 U.S. 130; Bennett v. Harkrader, 158 U.S. 441; 1 Lindley on Mines, Secs. 381 and 383; Haws v. Victoria Mining Co., 160 U.S. 303.
If the evidence objected to was incompetent for any reason it affords no ground for reversal of the judgment as said by Blackburn, J., in Mining Co. v. Haws, 7 Utah, 515, 517. See, also, Maynard v. Ins. Association, 16 Utah 145; People v. Burtleson, 14 Utah 258.
The respondents in this case made application before the United States Land Office at Salt Lake City for patent for the Mountain Mayd and Gold Reef mining claims, situated in West Mountain Mining District, Salt Lake County, and the appellant thereupon filed an adverse claim in such land office, claiming a title to certain mining ground called the Wells Lode, in conflict with the ground included in the respondents' application for patent. In support of such adverse claim the appellant brought this action to determine his title to the mining ground in conflict. The respondents in their answer deny the appellant's right or title to the ground, and set up affirmatively that they were the owners of the land, and prayed for an adjudication and judgment to that effect. The cause was tried by the court, sitting without a jury, and was decided in favor of the respondents, and from such judgment the appellant appeals to this court.
For a reversal of the judgment the appellant relies upon two points: First, that the respondents' notices of location were insufficient, indefinite and uncertain, and that therefore it was error to admit such notices in evidence; and, second, that the respondents were erroneously permitted to show by expert testimony that certain work done by respondents had a tendency to develop both of the mining claims belonging to them, especially when it was not shown that such expert witness had a personal knowledge of the course of the veins, although he generally knew and had surveyed the mining ground in question.
As to the first point we think it wholly untenable. The notices of location read as follows:
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