McGee v. Stone

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action to recover the possession of certain mining-claims. The plaintiff's compose the Star Point Company and the defendants the Michigan Company. The Star Point Company consisted originally of four members, who located the claims in 1854—one for each member of the company, and one by right of discovery—making five claims in all, each fronting one hundred feet, and running back four hundred feet. The Michigan Company located their claims with and adjoining those of plaintiffs, on the next day. For some time after the locations, the miners of that locality considered the front ground only as containing gold; but, subsequently, they became convinced that the heavier deposits would be found under the hill lying back of the first locations. A meeting of the miners of that vicinity was held in August, 1855, at which it was agreed that claims should be extended back to the summit of the hill, in the rear. The controversy in this case regards the line between those two companies. The plaintiffs insist that the line was agreed upon by mutual consent, in 1855; while the defendants insist that such agreement did not bind the Michigan Company, as it was not agreed to by all the members, and that the agreement was founded upon a mistake of facts. In the Court below, the defendants had judgment, and the plaintiffs appealed. The errors assigned go to the giving of a certain instruction, at the request of the defendants, and in refusing the plaintiffs a new trial.

The fourth, sixth, and ninth instructions, embrace substantially the same principle. The ninth is in these words:

“That u the jury believe, from the evidence, that the stake set at the point represented on the map as “ B,” at the meeting of August, 1855, was placed there under a mistake as to the true boundaries and corners, then that the Michigan Company are not bound by such stake or corner.”

There was some apparent, though very little of any real contradiction, in the testimony as to the leading facts of the case.

[606]It appears that, at the meeting of the miners of that locality, in August, 1855, it was agreed that the Star Point Company, being the original locators, should first designate their lines, extending their original claims back to the summit of the hill; and that the adjoining companies should afterwards designate their lines. One or more members of other companies went upon the ground, and, by mutual consent, marked a tree, as designating the southern extension line of the Star Point Company. From this point they went north to a point near a large rock, to designate the line between these two companies. The point first selected was not satisfactory to the Michigan Company; but, finally, a stake was set, by mutual consent, at the point marked “B.” It seems very clear, from the testimony, that it was supposed by all parties that this stake was in range with the northern line of the Star Point Company’s original claims. But in this they were mistaken, as it turned out, upon actual survey, to have been too far north. This line was acquiesced in by both companies, for about two years, and was never disputed by the Michigan Company, until they found, from actual survey, that they had by mistake crossed this dividing line with their tunnel. In the mean time, the present members of the Star Company had, bona fide, purchased the shares of the former owners.