Miller v. Scoble

BURNETT, J.

The action was brought to quiet title to two adjoining mining claims.

Plaintiffs had judgment and defendant appealed from the order denying his motion for a new trial.

Appellant relocated the claims on January 1, 1905, and he contends that the annual labor required by law was not done on either of said claims by plaintiffs for the year 1904, and also that by virtue of his affidavits of newly discovered evidence a new trial should have been granted.

1. In the opening brief appellant inveighs caustically against the testimony of plaintiffs’ witnesses, asserting that it is entirely unworthy of credence, and insufficient to justify the finding of the court that the work was done in 1904. But the fact remains, as the transcript shows, that two witnesses, Heldman and Miller, testified that the two hundred dollars’ worth of work was done by them and one Curtis. They give the number of days that they were employed, the price per day of their labor, and they describe how and where

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the work was done. It is true that they do not entirely agree as to some of the details, and Heldman is less certain as to the exact time of the employment than Miller, hut it cannot be disputed that their testimony supports the finding of the court, and even admitting, as we do, that a very strong counter-showing was made by defendant, we are powerless to disturb said finding under the well-established rule of eon-' flicting evidence, unless the testimony for plaintiffs is so improbable that we must reject it as not entitled to belief. This rule is admitted by appellant, but he stoutly insists that the conduct of said witnesses as sworn to is inherently improbable, as “it violates every principle of human action.” The assertion is made in view of their statement that they sank a shaft in quartz rock to the depth of twenty or twenty-five feet, and had three benches upon which to throw the rock; that they threw it up eight feet upon one bench and then upon another, and at last to the top, from which point they moved it several feet to an old dump pile. Appellant says “they were there simply to do assessment work, and were not called upon to enter upon any such a stupendous and hazardous undertaking as the one they describe, without appliances in the way of blacksmith utensils, wheelbarrows and other articles necessary to do such work.” But we cannot say that they were required to have all the approved appliances, nor that because they appear to have worked somewhat stupidly and not to the best advantage, they did not do the work as they claim. The considerations suggested were proper to be addressed to the trial judge as affecting the credibility of the witnesses. No doubt they were not overlooked by the court below, but it was found, in view of all the circumstances, that the necessary work was done in good faith; and we cannot hold otherwise without invading the province of the trial judge. It is fair to say that the explanation -by witness Miller of the manner in which the work was done mollifies somewhat the sting of appellant’s criticism.