Myers v. Spooner
Before: Ross
Synopsis
Mining Claims—Mining Rules and Regulations—Conflict of Evidence-Abandonment.— In an action of ejectment for a mining claim, in which the verdict and judgment was for the defendants, the evidence was conflicting, as to whether the plaintiffs’ claim had been staked off and surrounded by a ditch, as required by the mining rules and regulations of the district, and also as to whether the claim had been abandoned; there being, on the latter point, evidence tending to show abandonment, and the plaintiffs’ own testimony that he had not intended to abandon. Held, upon the first point, that compliance with the mining rules, in the particulars specified, was essential to the validity of the claim; and, upon the second, that the evidence of the plaintiff as to his intentions, was not conclusive, hut the intention was to bo determined from all the facts and circumstances of the case; and, the evidence being conflicting on both points, that the verdict should not he disturbed.
Id.—Evidence — Error.—On the trial the defendants proposed to examine one of the plaintiffs, (who was a witness) as to admissions, and statements, and acts, made and done by him, before he was a tenant in common with his co-plaintiffs; to which the plaintiffs objected, and the objection was overruled. Held, that the ruling could not have injured the plaintiffs, since the record failed to show that any such question ever was, in fact, asked or answered by the witness.
Id.— Record —Mistake —Location—Notice.— It appeared on the trial, that 1Iie District Recorder, in recording the notice of one of the defendants’ claims, omitted by mistake, one of the lines, but in fact the lines were distinctly marked on the ground, as required by the mining rules. Held, that tlie defendants were not bound by the mistake of the Recorder, and that the actual location on the ground was sufficient to impart notice to all comers.
Ross, J.: Ejectment to recover a mining claim. The answer denied the plaintiff’s alleged title, averred title in defendants, and interposed the plea of the Statute of Limitations. The case was tried in the Court below with a jury, a verdict rendered for the defendants, upon Avhich judgment was duly entered, and from the judgment, as well as from the order refusing them a new trial, the plaintiffs prosecute this appeal.
We have looked careful'y through the record, and cannot say that the evidence does not support the verdict. It appears that on the 26th of November, 1856, E. A. Leathe, one of the plaintiffs, and one Holton, located the ground in controversy by recording the same in the mining records of the district as theHolton & Co. claims, and by posting a notice thereon, and, as some of the witnesses for the plaintiffs testified, by setting stakes at the corners, and digging a small ditch around the claims. The mining rules and regulations of the district required, among other things, that, in locating a claim, stakes should be put up at each of its corners, and also, that it shouU be bounded by a small ditch. At the trial there was evidence [259]given, on behalf of the defendants, tending to show that these requirements were not complied with on the part of the locators, under whom the plaintiffs claim. There was, therefore, a conflict in the testimony on this point. Holton, soon after the location mentioned, transferred his interest in the claims to Loathe, and left the State. Hone of the other locators were, so far as appears, residents of the vicinity, or knew anything of the location. Loathe left the neighborhood in a few weeks, and, for fifteen years next after the location, no work whatever was done thereon, and,'so far as appears, no assertion of ownership made to the ground by plaintiffs, or for them, or on their behalf. The ground, however, is what is known among miners as “ back-hill” ground, and could not, and cannot, be worked to advantage until the earth in front is carried off. The rules and regulations of the district required all claims to be worked every ten days, but it seems that this rule was generally disregarded, although some of the witnesses for the defendants, who held claims in the district, testified that they had regarded it as all the time in force. The rules and regulations, however, did not provide for any forfeiture or penalty in the event the work was not performed. In April, 1858, the locus in quo being apparently vacant land, R. H. Palmer, and others, under the name of the ‘•Joint Stock Company,” located twenty claims, recorded them, posted a notice thereon, set stakes at the corners, and dug a ditch around the ground, and soon after sunk a shaft seventy-five feet deep thereon. This location covered a portion only of the Holton location. In October, 1859, Swcetland, Bicknell, and others, believing the Joint Stock Company to have more ground within their lines than they were entitled to Bold under the local rules and regulations, located twenty-six claims, covering a portion of the Joint Stock, and the residue of the Holton location. They dug a ditch around the ground located, staked it off, posted a notice thereon describing the ground, and filed a copy thereof for record. In recording this notice the District Recorder omitted, by mistake, one of the lines. In 1869, the Joint Stock Company, the Swcetland and Bicknell Company, and still another company claiming ground to the west of them, consolidated their claims under the name of the Joint Stock Company, reditched the whole, and placed large painted stakes
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