Beals v. Cone

This is what is known in the mining regions as an 'adverse suit,' brought under the authority of §§ 2325 and 2326, Rev. Stat. (U.S.C.omp. Stat. 1901, pp. 1429, 1430), in the district court of the county of El Paso, Colorado, to contest the right of defendants to a patent for the Ophir lode mining claim. The plaintiff claimed a portion of this ground as a part of his own mining claim, and the question presented was as to the priority of right thereto of the respective parties by virtue of discovery and location. Judgment was rendered in the district court in favor of the defendants, which judgment was affirmed by the supreme court of the state. 27 Colo. 473, 62 Pac. 948. Thereupon the case was brought here on writ of error.

In the complaint, plaintiff averred that on or about January 1, 1893, and ever since, he was the owner and in possession of the Tecumseh lode mining claim; that on or about April 1, 1896, the defendants wrongfully entered upon a parcel of said claim, to wit, all that part thereof included within the exterior lines of the Ophir lode mining claim, and that they have ever since wrongfully withheld the possession of said parcel from the plaintiff. The answer denied the allegations of the complaint, and pleaded as a second defense that before the alleged discovery of the Tecumseh lode mining claim, to wit, on February 3, 1892, the defendants or their grantors were and defendants still are the owners of the Ophir lode mining claim; and that by reason of such ownership they are entitled to the possession of the ground in dispute. To this answer a replication was filed, setting forth that defendants on February 10, 1893, made a mineral entry which included said Ophir lode; that subsequently plaintiff, with others, filed a protest against that portion of the entry which related to the Ophir lode,-such protest charging, among other things, that there had been no discovery of any vein, lode, ledge, or deposit of mineral therein; that on a hearing there was an adjudication by the Commissioner of the General Land Office, affirmed by the Secretary of the Interior, that no discovery had been made, and canceling the entry. Plaintiff also alleged that at the hearing on said protest Cone, one of the defendants, testified that no vein had been discovered in the Ophir claim and no work done on any lode therein during the year 1893, and that the plaintiff was induced by such testimony to go to large expenditures in exploring for mineral in the ground in conflict between the two claims, the defendants knowing at all times that such expenditures were being made in reliance upon the truth of such testimony. In other words, the plaintiff in his replication pleaded two defenses to defendants' claim of title: First, res judicata by reason of the action of the Secretary of the Interior in setting aside the original application for entry of the Ophir lode; and, second, estoppel by reason of the testimony given by one of the defendants. A demurrer to this replication was sustained, and the case went to trial upon the complaint and answer.

Mr. H. B. Johnson for plaintiff in error.

Messrs. Charles S. Thomas, William H. Bryant and Harry H. Lee for defendants in error.

Mr. Justice Brewer delivered the opinion of the court: