Brown v. Gurney

Brown applied for patent on a mining claim, known as the Scorpion, and Gurney adversed this application as the owner and claimant of the Hobson's Choice, as did Small, also, as the owner and claimant of the P. G. claim. Thereafter each brought suit in support of his adverse claim in the district court of Teller county, Colorado, The cases were tried together on an agreed statement of facts. This showed that the Scorpion, Hobson's Choice, and P. G. locations covered substantially the same tract of ground, and were all made in compliance with law, with the exception repeated in connection with each of said locations: 'Provided, however, that it is not admitted that at the time of said location the ground embraced in said location was a part of the vacant and unappropriated public domain.'

It appeared that prior to May 28, 1895, a mining lode location called the Kohnyo was owned by the Cripple Creek Mining Company, which claim was divided into two noncontiguous tracts by the Mt. Rosa placer claim. The north end of the Kohnyo, comprising 500 feet of the claim, was where the discovery of mineral was made, and it also contained a discovery shaft and the other workings and improvements of the claim. The south end, being 700 feet in length, did not show mineral, and was without development work of any kind.

The following diagram illustrates the situation:

The local land office permitted the claimant of the Kohnyo to enter the two tracts as one claim, but the Department ultimately refused to issue a patent for such tracts, basing the refusal upon the ground that two portions of a lode mining claim, separated by a patented placer, could not be included within one patent. The land office gave the applicant, however, the privilege to apply for a patent upon either of the segregated tracts, and directed that, in default of an election or appeal by the claimant within sixty days from the date of the order, the entry of that portion of the claim lying south of the Mt. Rosa claim should be canceled without further notice. This decision was rendered May 28, 1895, and no appeal was taken from it; but the claimant of the Kohnyo instituted proceedings against the claimant of the Mt. Rosa placer, the purpose of which was to secure title to the vein of the Kohnyo, which, it was claimed, passed through the portion of the placer claim which conflicted with the Kohnyo location. These proceedings were prosecuted before the Land Department, with the result that on May 7, 1898, a decision was rendered against the Kohnyo claimant's contention of a known vein in the placer conflict.

June 14, 1898, the claimant of the Kohnyo filed in the land office a written instrument, dated June 10, by which it elected to retain and patent the north end of the Kohnyo claim, and in which it also waived any right to further question or review the decision of the Secretary of the Interior of May 7, 1898, affirming the decision of May 28, 1895.

July 15, 1898, the Commissioner of the General Land Office canceled the entry of the Kohnyo claim as to that portion south of the Mt. Rosa placer.

May 13, 1898, Brown located this 700 feet as the Scorpion lode claim. June 23, 1898, Gurney located the same premises as the Hobson's Choice lode claim, and July 16, 1898, Small located the same ground as the P. G. lode claim. July 15 and 16, 1898, the claimant of the Scorpion filed amended and second amended certificates.

On these facts, judgment was rendered for defendant in each case, from which plaintiffs appealed to the supreme court of the state. That court reversed the judgment in Gurney v. Brown, and entered judgment that Gurney recover the premises included in the Hobson's Choice location, and for costs; and reversed the judgment in Small v. Brown, and entered judgment 'that neither party has established any right to the premises in controversy,' and for costs. The opinion is reported in 32 Colo. 472, 77 Pac. 357.

Messrs. William C. Prentiss, Charles F. Potter, and Horace F. Clark for brown.

[Argument of Counsel from pages 187-188 intentionally omitted]

Mr. Charles C. Butler for Gurney.

[Argument of Counsel from pages 188-189 intentionally omitted]

No brief was filed for Small.

Mr. Chief Justice Fuller delivered the opinion of the court: