Colorado Cent Consolidated Mining Company v. Turck

Statement by Mr. Chief Justice FULLER:

This was an action in ejectment brought by John Turck against the Colorado Central Consolidated Mining Company, December 2, 1885, in the circuit court of the United States for the district of Colorado. The complaint alleged:

'First. That plaintiff is a resident and citizen of the state of Colorado; that the Colorado Central Consolidated Mining Company, defendant, is a corporation organized and existing under and by virtue of the laws of the state of New York; that the amount in dispute in this action exceeds the sum of $500, exclusive of costs.

'Second. Plaintiff further alleges that upon the 1st day of January, A. D. 1885, he was the owner of, seised in fee, and entitled to the possession of, a certain lode mining claim and premises, situate in Argentine mining district, Clear Creek county, Colorado, described as follows, to wit: 'The Aliunde Tunnel lode No. 2, with all the dips, spurs, angles, and variations of said lode throughout their entire length and depth, and all other lodes, veins, lodges, or deposits of mineral the top or apex of which lies inside of said Aliunde Tunnel lode No. 2, as patented to John Turck by certain letters patent of the United States, dated the 31st day of January, A. D. 1883, which lode, mining claim, and premises are described in said patent as 'Mineral Entry No. 1,862' in the series of the United States land office at Central City, Colorado, and designated by the surveyor general of the state of Colorado as 'Survey Lot No. 1,494,' which lode is fifteen hundred feet in length, by one hundred and fifty feet in width.'

'Third. That said Aliunde Tunnel lode No. 2 has a pitch to the northwest of about sixty degrees from a horizontal; that the top and apex of said lode lie within the side and end lines of said Aliunde Tunnel lode No. 2; that, owing to the dip of said lode to the northwest, at a depth of about three hundred feet beneath the surface of the ground, said Aliunde Tunnel lode No. 2 passes under the north side line of said patent, and enters the land adjoining; that, while plaintiff was so seised and possessed of said Aliunde Tunnel lode No. 2, the defendant afterwards, and on the 1st day of January, A. D. 1885, wrongfully entered upon and ousted the plaintiff from about four hundred feet of said Aliunde Tunnel lode No. 2 mining claim and premises next hereinafter described, and now wrongfully withholds the same from plaintiff; that is to say: That said defendant wrongfully ousted the plaintiff from so much of said Aliunde Tunnel lode No. 2 mining claim and premises as lies beneath the depth of three hundred feet beneath the surface of the ground north of the north side line of said Aliunde Tunnel lode No. 2, carrying said north line down vertically, and from thence on the pitch of said lode northwesterly, and measuring thence along the line of said Aliunde Tunnel lode No. 2 a distance of four hundred feet next west of the northeast end line of said claim.'

That plaintiff owned the property in fee, and was entitled to possession, and that the value of the rents, issues, and profits, 'while said plaintiff has been excluded therefrom by the defendants, amounts to two hundred and fifty thousand dollars.' Wherefore judgment was demanded for possession, damages, and costs.

The defendant answered by a general and special denial, and for a second defense said:

'(1) That it is, and ever since the 15th day of December, A. D. 1879, it hath been, the owner and seised in fee and in the actual possession of the Colorado Central lode mining claim survey, lot No. 261, being a lode mining claim 1,500 feet in length by 50 feet in width, and of all lodes the tops or apexes of which may be found within the lines of said survey lot No. 261.

'(2) That said Colorado Central lode mining claim was entered for patent, and patented by the United States to the grantors of defendant before said date, and long before the real or pretended discovery, location, or patenting of said Aliunde Tunnel lode No. 2.

'(3) That said Colorado Central lode mining claim lies immediately to north of and adjoining the survey lot of said Aliunde Tunnel lode No. 2, and that whatever vein the defendant has worked on is the vein of the Colorado Central lode, or some vein having its top or apex within the side lines of said survey lot No. 261, and not within the side lines of the survey lot of said Aliunde Tunnel lode, No. 2.'

And by the fourth paragraph defendant denied that it wrongfully withheld possession from plaintiff of the Aliunde lode, or any vein having its apex within the side lines thereof.

Plaintiff replied to this second defense, denying the defendant's ownership in the Colorado Central lode to the extent averred; admitting the second paragraph of the answer that the Colorado Central lode was patented before discovery and patent of the Aliunde, and that the two lodes lay adjoining each other; but denying that the Aliunde lode was a part of the Colorado Central lode, and that the vein of the plaintiff had its top or apex within the side lines of the Colorado Central lode, at any point claimed by the plaintiff, and denying that defendant had not wrongfully withheld possession.

The case went to trial, and resulted in a verdict for the plaintiff, and judgment thereon, which was set aside on payment of costs, under the local statute, and a second trial was had with the same result. Certain exceptions were taken by the defendant to parts of the charge of the court and to the refusal to give certain instructions requested. The case was taken by writ of error to the United States circuit court of appeals for the eighth circuit, and the judgment was affirmed, May 8, 1892. A petition for rehearing was filed during the term, which was denied February 18, 1893, and thereupon a writ of error was allowed to this court.

The opinions of the circuit court of appeals will be found in 4 U.S. App. 290, 2 C. C. A. 67, 50 Fed. Rep. 888, and 4 C. C. A. 313, 54 Fed. Rep. 262.

The case was submitted on motion to dismiss or affirm.

Willard Teller and H. M. Orahood, for the motion.

C. J. Hughes, Simon Sterne, and R. S. Morrison, opposed.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.