Erhardt Boaro

This is an action for the possession of a mining claim in Pioneer mining district, in the county of Dolores, and state of Colorado. The claim is designated by the plaintiff as 'The Hawk Lode' mining claim, and by the defendants as 'The Johnny Bull Lode' mining claim. The plaintiff is a citizen of New York, and the defendants are citizens of Colorado. The complaint is in the usual form in actions for mining claims under the practice in Colorado. It contains two counts. The first alleges, in addition to the citizenship of the parties as stated, the possession by the plaintiff on the seventeenth of June, 1880, of the claim, which is fully described, his right to its possession by virtue of its location pursuant to the laws of the United States and of the state, and the local rules and customs of miners in the district, and by virtue of priority of possession, the wrongful entry upon the premises by the defendants on the thirtieth of that month, their ousting the plaintiff therefrom, and unlawfully withholding the possession thereof from him, to his damage of $50,000. The second count, in addition to the citizenship of the parties, the possession of the claim by the plaintiff, and the subsequent wrongful entry of the defendants, and their ousting him, alleges that the defendants worked and mined in the claim, and dug out and removed from it large quantities of gold and silver bearing ore, of the value of $50,000, to the damage of the plaintiff in that amount. The plaintiff, therefore, prays judgment for the possession of the mining premises, and for damages of $100,000.

The answer of the defendants contains a specific denial of the several allegations of the complaint, except that of the citizenship of the plaintiff, and, as to that, it avers their want of information, and demands proof. And it sets up the discovery of the claim in controversy on the thirtieth of June, 1880, by the defendants Boaro and Hull, to which they gave the designation of 'The Johnny Bull Lode,' and its definite location and record within 90 days thereafter, and their subsequent relocation of the claim, September 8, 1880, to avoid a conflict with an adjoining claim. They pray, therefore, that they may be decreed its possession and ownership, in accordance with their rights.

On the trial the plaintiff produced evidence tending to show that on the seventeenth of June, 1880, one Thomas Carroll, a citizen of the United States, while searching, on behalf of himself and the plaintiff, also a citizen, for valuable deposits of mineral, discovered, on vacant unoccupied land of the public domain of the United States, in the Pioneer mining district mentioned, the outcrop of a vein or lode of quartz and other rock bearing gold and silver in valuable and paying quantities; that by an agreement between him and the plaintiff, pursuant to which the explorations were prosecuted, all lodes and veins discovered by him were to be located, one-fifth in his name and four-fifths in the name of the plaintiff; that on the day of his discovery Carroll designated the vein or lode as the 'Hawk Lode,' and posted at the point of discovery a plain sign, or notice in writing, as follows:

'HAWK LODE.

'We, the undersigned, claim 1,500 feet on this mineral-bearing lode, vein, or deposit.

'Dated June 17, 1880.

JOEL B. ERHARDT, 4-5ths.

'THOMAS CARROLL, 1-5th.'

-That on the same day, at the point of his discovery, Carroll commenced excavating a discovery shaft, and sunk the same to the depth of about eighteen inches or two feet on the vein; that on the thirtieth of the month, in the temporary absence of himself and the plaintiff, the defendant Boaro, with knowledge of the rights and claims of the plaintiff and Carroll, entered upon and took possession of their excavation, removed and threw away or concealed the stake upon which their written notice was posted, and, at the point of Carroll's discovery of the v in or lode, erected a stake and posted thereon a discovery and location notice as follows:

'JOHNNY BULL LODE.

'We, the undersigned, claim 1,500 feet on this mineral-bearing vein or lode, running six hundred feet north-east and nine hundred feet south-west, and 150 feet on each side of the same, with all its dips and spurs, angles, and variations.

'June 30, 1880.

ANTHONY BOARO.

'W. L. HULL.'

The evidence also tended to show that Boaro and Hull entered upon the premises thus described, about July 21, 1880, and remained thereafter continuously in possession; that threats of violence to the plaintiff and Carroll, if they should enter upon the premises, or attempt to take possession of them, were communicated to Carroll as having been made by Boaro early in August following; that in consequence of such threats, and the possession held by Boaro, Carroll was prevented from resuming work upon and completing the discovery shaft, and from entering upon any other part of the lode or vein, and performing the acts of location required by law within the time limited. The evidence also tended to show that within 90 days from the discovery of the lode by Carroll, one French, on behalf of the plaintiff and Carroll, secretly caused the boundaries of the claim to be marked by six substantial posts, so as to include the place of discovery and the premises in controversy, and filed in the office of the recorder of the county a location certificate setting forth the name of the lode, the date of the location, the names of the plaintiff and Carroll as locators, and the course of the lode or vein; and giving such a description of the claim, with reference to natural objects and permanent landmarks, as would suffice to identify the same with reasonable certainty.

The evidence offered by the defendants tended to rebut that of the plaintiff, and to show that on the thirtieth of June, 1880, when Boaro entered upon the ground in controversy, he found nothing on the surface to indicate a vein or lode, or that any excavation had been made or stake erected, as alleged by the plaintiff, or that any portion of the ground claimed by the defendants had ever been previously located or claimed; that their discovery cut was commenced at a point 35 feet distant from the point described and claimed by Carroll as the point at which he had begun to sink the discovery shaft of the 'Hawk Lode,' and erected his stake and posted his notice, and that the top of the vein was at least four feet below the surface; that Carroll had abandoned all claim to the premises in controversy, and that his omission to perform the required location work was due to such abandonment, and not to any threats of the defendants, or of any of them, nor to the occupation of the ground by Boaro and Hull, or either of them; that neither the plaintiff nor Carroll ever demanded possession of or asserted any title to the premises until the working of the claim by the defendants had shown it to be valuable.

The evidence of the defendants also tended to show that they had commenced work upon the claim about July 21, 1880, and sank and excavated an open cut, striking the vein or lode at the depth of 10 feet or more, and exposed therein a vein of rock in place bearing gold and silver; that no mineral nor any indications of a vein or lode were found until they reached the depth of seven or eight feet; and that subsequently, and within the time limited by law, they marked the bounds of their claim on said lode, called by them the 'Johnny Bull Lode,' and recorded a location certificate, describing their claim by reference to natural objects and permanent land-marks, and complying in all respects with the requirements of the law.

The evidence being closed, the court was, among other things, requested to instruct the jury that from and after the date of the discovery by a citizen of the United States, upon vacant, unoccupied mineral lands, of the outcrop of a vein or body of mineral-bearing rock, the discoverer is entitled to th possession of the point at which he made his discovery, and of such a reasonable amount of adjacent ground as is necessary or incidental to the proper prosecution of the work of opening up or exposing the vein or body of mineral-bearing rock to the depth and within the time required by law, and that to such extent he is protected by law in his possession for the period of 60 days from the date of his discovery. But the court refused to give this instruction, and the plaintiff excepted to the refusal. The court charged the jury, among other things, that it was in evidence, and seemed to be conceded, that the notice on the stake put up by Carroll contained no specification or description of the territory claimed by the locators, as that they claimed a number of feet on each side of the discovery, or in any direction therefrom, and 'in this respect,' said the court, 'the notice was deficient, and under it the locators could not claim more than the very place in which it was planted. Elsewhere on the same lode or vein, if it extended beyond the point in controversy, any other citizen could make a valid location; for this notice, specifying no bounds or limits, could not be said to have any extent beyond what would be necessary for sinking a shaft;' and also, that to entitle the plaintiff to recover, 'it should appear from the evidence that Boaro entered at the very place which had been taken by Carroll, because, as Carroll's notice failed to specify the territory he wished to take, it could not refer to or embrace any other place than that in which it was planted.' To the giving of these instructions the plaintiff also excepted. The defendant obtained a verdict, and to review the judgment entered thereon the plaintiff brings the case here on writ of error.

Elihu Root, for plaintiff in error.

T. M. Patterson and C. S. Thomas, for defendant in error.

FIELD, J.