(9 Colo. 222) LEE and others v. WILSON. (Supreme Court of Colorado. May 17, 1886.) PROMISSORY NOTE-DUE BILL-WHEN PAYABLE. Appeal from county court, Arapahoe county. BECK, C. J. It having been stipulated by the parties in this case that it should abide the decision to be rendered in the case of Lee v. Balcom, ante, 74, and the judgment in that case having been affirmed, the same judgment will be entered in this case. (9 Colo. 208) LEE and others v. STAHL. 1. TRIAL-INSTRUCTIONS TO JURY-WRITTEN INSTRUCTIONS. In Colorado instructions to the jury are required by statute to be in writing. Montelius v. Atherton, 6 Colo. 224. 2. MINES AND MINING-JUNIOR AND SENIOR LOCATIONS-CROSS-VEINS. Under sections 2322, 2336, Rev. St. U. S., where a junior mining location crosses a senior location, and the veins therein are cross-veins, the junior locator is entitled to all the ore found on his vein within the side line of the senior location, except at the space of intersection of the two veins. In such a case the junior locator has a right of way for the purpose of excavating and taking away the mineral contained in the cross-vein. 3. SAME-FAILURE TO "ADVERSE"-WAIVER. The effect of the provisions of section 2336, Rev. St. U. S., is to exclude a crosslode, except at the point of lode intersection, as not a subject of grant. Being exempt from the grant, the right to it is not lost by failure to "adverse." But this does not include the space of a lode intersection. If a prior locator would secure this and other rights which he has by virtue of his prior location, he must adverse, whether his prior location was made under the act of 1866 or 1872. A failure to assert prior rights is treated as a waiver. Appeal from district court, Clear Creek county. This action was brought by the appellee, Ernest Stahl, to recover the possession of the Lone Tree lode. His patent from the government, under date of the fifth of November. 1878, reciting entry at the local land-office at Central City, Colorado, on the thirteenth day of April, 1873, shows his title in fee. The defendant Lee is the owner of the Argentine silver lode. His patent from the government is under date of the fifteenth of August, 1876, and recites an entry at the same local land-office, under date of July 3, 1875. The entry of the Argentine lode at the local land-office being subsequent to the entry of the Lone Tree lode, the latter survey (No. 262) is excepted from the defendant's patent. The language of the patent is: "Excepting and excluding, however, from these presents, all that portion of the surface ground herein described which is embraced by said surveys No. 262, * ** as represented by yellow shading in the following plat.' The two locations cross each other at a sharp angle, near the eastern termini. The defendant struck a lode at or near the point of intersection by means of a cross-tunnel substantially at right angles with the Lone Tree location. From this point his tunnel runs south-westerly about 350 feet, following generally the course of the Lone Tree location, and running directly under the Lone Tree discovery shaft. It has an average depth of about 80 feet below the surface, and is, admittedly, within the exterior lines of the Lone Tree location, with the exception of a short distance at its south-western terminus. The plaintiff contends that this tunnel, in its entire length from the point where the lode was cut, is on the Lone Tree lode, having its apex within his side lines. The defendant contends that it is on the Argentine lode, and that its apex is at least partially within the side lines of the Argentine location. Trial by jury. Verdict and judgment for the plaintiff. Appeal. J. E. Rockwell, J. B. Belford, and G. B. Reed, for appellants, Jerry Lee and others. R. S. Morrison, C. C. Post, and John A. Coulter, for appellee, Ernest Stahl. ELBERT, J. 1. The testimony offered on behalf of the defendant, in support of his allegation that his tunnel is on the Argentine vein, is unsatis-. factory, and in conflict with the preponderance of evidence. We nevertheless think that there is sufficient to have taken it to the jury, and that the court erred in instructing the jury that, "under all the circumstances, they should find for the plaintiff." After such an instruction, the subsequent submission of the case to the jury was practically nominal. A further objection to the instruction containing the foregoing direction lies in the fact that it was oral, and not in writing, as required by the statute. Montelius v. Atherton, 6 Colo. 224. Whether what is here denominated an "instruction" comes within the technical meaning of the term we do not inquire. Courts should avoid a practice so obviously objectionable, independent of the statutory requirement. 2. In the case of Branagan v. Dulaney, 8 Pac. Rep. 669, (December term, 1885,) it is held that "under sections 2322, 2336, Rev. St. U. S., when a junior mining location crosses a senior location, and the veins therein are crossveins, the junior locator is entitled to all the ore found on his vein within the side lines of the senior location, except at the space of intersection of the two veins. In such a case a junior locator has a right of way for the purpose of excavating and taking away the mineral contained in the cross-vein." This decision, rendered since the trial below, settles one of the principal points of contention involved in this case. The third and fifth instructions given by the court to the jury on behalf of plaintiff are in conflict with the doctrine announced. They, in effect, instructed the jury that the senior locator was entitled to the cross-vein to the extent that it was within the side lines of his location. 3. In view of a new trial, we notice a question made by defendants' counsel, that the court below erred in holding the Lone Tree patent the senior title, the entry being senior. The claim is that the discovery and location of the Argentine lode was in 1865, prior to the discovery and location of the Lone Tree lode; that priority of location, and not priority of entry, determines priority of title; that defendants' rights having accrued prior to the act of 1872, they are saved by section 2344; and that it was not necessary for him to adverse. Under the doctrine of Branagan v. Dulaney, supra, and of the case of Hall v. Equator Min. Co., Morr. Min. (3d Ed.) 282, therein cited, the effect of the provisions of section 2336 is to exclude a cross-lode, except at the point of lode intersection, as not a subject of grant. Being excepted from the grant, it follows that the right to it is not lost by failure to adverse. But this does not include the space of lode intersection. If a prior locator would secure this and other rights which he has by virtue of his prior location, he must adverse, and this, whether his prior location was made under the act of 1866 or 1872. It is true that section 2344 provides that "nothing contained in this chapter shall be construed to impair in any way rights or interests in mining property acquired under existing laws." While this is true, other sections of the act provide the mode and manner in which such rights shall be asserted and secured by adversary proceedings, and a failure so to assert prior rights is treated as a waiver. This was held in the case of Hall v. Equator Min. Co., supra, where the defendant made a like claim of a discovery and location under the act of 1866. The policy of the law is to require all rights and equities to the premises sought to be purchased and patented to be adjusted prior to the issuance of the patent, to the end that it may be impregnable against all comers. Eureka Min. Co. v. Richmond Min. Co. 4 Sawy. 302; Mining Co. v. Bullion Co., 3 Sawy. 659; Golden Fleece Co. v. Cable Co., 12 Nev. 320; Hall v. Equator Min. Co., Morr. Min. (3d Ed.) 286; Gwillim v. Donnellan, 115 U. S. 45; S. C. 5 Sup. Ct. Rep. 1110. This substantially disposes of all the errors assigned. A number of other points have been discussed by counsel for appellant, but, in the absence of any brief on the part of the appellee, we do not consider them. They are largely speculative, and are not fairly within the issues made by the pleadings. The patents specify and define lodes crossing each other without other connection than such as arises from intersection. The pleadings allege, respectively, the rights of the plaintiff and defendant under these cross-locations. We have, therefore, confined ourselves to the law respecting such locations, and the points decided should secure for the parties a trial on the merits. The judgment of the court below is reversed, and the cause remanded. (9 Colo. 225) BRUNS and others v. CLASE. (Supreme Court of Colorado. May 17, 1886.) 1. EVIDENCE-LOST INSTRUMENTS-PROOF OF, ONCE EXISTING. Upon proof of the death of the sheriff, the existence of an execution issued to him while alive may be shown by testimony (1) that in the execution docket in the custody of the clerk of court there was an absence of entries for two years, covering the time of the issue of the execution in question, but that the fee-book mentions "execution issued January 8, 1878," and also the entering the sheriff's return without date; (2) that such execution was seen in the hands of the sheriff, and, by the latter's permission, examined by the party testifying. 2. SAME BASIS FOR SECONDARY EVIDENCE. Proof of a diligent and bona fide, but unsuccessful, search for an instrument in the place where the same belongs, is generally kept, or is most likely to be found, is sufficient to admit secondary evidence of its contents. Appeal from district court, San Juan county. Gray & Frazier, for appellants, H. J. Bruns and others. Hudson & Slaymaker, for appellee, Charles Clase. BECK, C. J. The only error assigned and relied upon for a reversal of this case is that the existence and loss of the execution alleged to have been issued on the judgment in favor of Sheppard & Co. v. Calder, Rouse & Co. were not sufficiently proven to let in secondary proof of its contents. It was alleged in defendant's answer that an execution issued and was delivered to Sheriff Williams, of San Juan county, on the eighth day of January, 1878, and was levied upon the lots in controversy. The defendant, who relied, in part, upon title derived from his purchase at the sheriff's sale, and upon the certificate of sale and sheriff's deed, was unable to produce the execution upon which the property had been sold. The decease of the sheriff prior to the trial was duly proven. It appears from the testimony that an execution docket was among the record books in the office of the clerk of the county court, but that no entries had been made iu it from September, 1877, until August, 1880. This accounted for the absence of an entry therein of the issuance of the execution in the present instance. The fee-book, however, mentions the fact that an execution did issue, in the following words: "Execution issued January 8, 1878." It also mentions the entering of the sheriff's return on the execution, but gives no dates. In addition to this evidence, Mr. Hudson, one of the attorneys for the defendant, testified positively that he saw the execution in the hands of Sheriff Williams a few days after it was issued; that he asked permission to see it, and took it into his own hands, and examined it. If the execution was lost, and could not be found at the trial, this testimony was both competent and sufficient to prove that the writ had been issued. Supples v. Lewis, 37 Conn. 568. It has been held that an entry in an attorney's register was sufficient proof of the issuing of an execution to the sheriff at the time mentioned in the entry. Leland v. Cameron, 31 N. Y. 115, 124. There is nothing in the record to impeach the above testimony, and it having been shown that Sheriff Williams died before the trial in the district court, we are of opinion that the existence of the execution was duly established. The remaining question is whether there was sufficient proof of the loss of the execution. That the clerk of the court is the proper custodian of the files in all actions pending or determined therein, and that the office of the clerk is the proper place of deposit of such files, do not require the citation of authorities. The law is equally well settled that proof of a diligent and bona fide, but unsuccessful, search for an instrument, in the place where the same belongs, is generally kept, or most likely to be found, is sufficient to admit secondary evidence of its contents. It has also been decided that the testimony of a clerk of a court that he made diligent search for certain writs of execution belonging to the files of his court, and was unable to find them, was sufficient to let in secondary evidence of their contents. 2 Best, Ev. § 482, and notes. The witness George W. Bachiman, who was the clerk of the county court from May, 1881, to May, 1883, testified that he had made diligent search on three different occasions for this paper, but failed to find it. On being asked to what extent he searched therefor, he answered: "I went through everything I could find in the office." Judge ORR, who was judge of the county court at the time of the trial, testified that the records of the county court were then in his care; that he had searched the office for the execution, but could not find it. This preliminary proof of loss seems to have gone to the full extent required by law. Hittson v. Davenport, 4 Colo. 169; Hobson v. Porter, 2 Colo. 28. The case of Leland v. Cameron, supra, was similar to the present case in some respects. The sheriff to whom the execution issued was deceased, and the execution had been lost. The clerk's office had been searched for the execution, and it was not found. The members of the deceased sheriff's family were inquired of, but they could not find the writ. The proof was held sufficient. Appellants make the point that the proof in the present case was not carried to the same extent as in the case last cited. We do not understand the decision to hold, or intimate, that the inquiry of the sheriff's family was necessary; but having been made, that fact is mentioned with the other acts performed, all tending to show that a diligent search had been made for the document. See, also, Mandeville v. Reynolds, 68 N. Y. 528. The proofs of the existence and loss of the execution were sufficient to justify the admission of the certificate of sale and the sheriff's deed as secondary evidence of the contents of the execution. These being the only questions submitted for our consideration, the judgment of the court below will be affirmed. (9 Colo. 204) ELECTRO-MAGNETIC MIN. & DEVELOPMENT Co. v. VAN AUKEN and others. (Supreme Court of Colorado. May 17, 1886.) LOCATION OF LODE SECTION 7, GEN. LAWS COLO. 1. MINING AND MINING CLAIMS630-A DIT. Section 7, Gen. Laws Colo. 630, which provides that "any open cut, cross-cut, or tunnel, which shall cut a lode at the depth of ten feet below the surface, shall hold such lode the same as if a discovery shaft were sunk thereon, or an adit of at least ten feet in, along the lode, from the point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft," contemplates that as to the 10 feet required it might be either open or under cover, or open in part and under cover in part, dependent upon the nature of the ground. 2. STATUTES-CONSTRUCTION OF--GENERAL TERM. In the construction of statutes general terms are to receive such reasonable interpretations as leave the other provisions of the statute practically operative. Appeal from district court, Clear Creek county. The appellees were the plaintiffs below. The complaint alleges, in substance, that on April 1, A. D. 1881, the premises known as the "Willamette Lode" was part of the public mineral domain of the United States, and open to location; and that on said date Sarah J. Arden, Charles E. Lombard, and William Olmsted began to sink a discovery shaft thereon, and on May 10, A. D. 1881, discovered a well-defined crevice, at a depth of more than 10 feet from the lowest rim at the surface; that on May 12. A. D. 1881, they marked the boundaries, etc., and on May 26, A. D. 1881, they executed, and caused to be recorded, their location certificate, etc.; that by mesne conveyance, the plaintiffs have become the owners, and are entitled to the possession, of the premises, and have expended $100 on the same; that on May 17, A. D. 1882, defendants wrongfully ousted plaintiffs from the possession of the premises, etc.; that this suit is brought in support of an adverse claim, etc., against an application for a patent to the Smelter lode; that plaintiffs expended $35 for plats, and $50 for attorney's fees. They pray judgment for restitution of the premises, and $185 damages. For a further cause of action the complaint alleges, iu substance, that plaintiffs, on March 13, A. D. 1882, and ever since, were and are entitled to the Rescue lode; that they claim the right to occupy and possess the same by virtue of a full compliance with the laws relative to lode mining claims upon the public domain, etc.; that on May 17, A. D. 1882, the defendants wrongfully entered on a part of said premises, and wrongfully withhold the same; that this suit is brought in support of an adverse claim; that they have expended $35 for plats, etc., and $50 for attorney's fees. They demand judgment for a restitution of the premises; for $100 damages, and $85 expended in support of the adverse claim; and for costs of suit. The answer alleges, in substance, that defendants deny the allegations contained in the first cause of action, etc.; that they deny the allegations contained in the second cause of action, etc.; that they claim the right to the Smelter lode by virtue of discovery and location on March 4, 1882, and a relocation March 20, 1882, and a full compliance with the laws relating to the discovery and location of mining claims upon the public domain. For a third defense the complaint alleges, in substance, that they are a corporation, duly organized, etc.; that on May 7, A. D. 1882, and for a long time prior thereto, they were and are the owners of, and entitled to the possession and are in the actual occupation of, the Smelter lode, etc.; and they claim the right, etc., by virtue of a full compliance with the law, etc.; that on or about May 17, A. D. 1882, they applied for a patent for the Smelter lode, including the premises in controversy. mal by jury, and verdict for the plaintiffs. Mitchell & Palmer, for appellant, Electro-Magnetic Min. & Development Co. Morrison & Fillius, for appellees, Van Auken and others. ELBERT, J. Section 7, Gen. Laws, 630, provides that "any open cut, crosscut, or tunnel, which shall cut a lode at the depth of ten feet below the surface, shall hold such lode, the same as if a discovery shaft were sunk thereon; or an adit of at least ten feet in, along the lode, from the point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft." In the case of Gray v. Truby, 6 Colo. 278, it was held that while the open cut, cross-cut, or tunnel must cut the lode at the depth of 10 feet below the surface, there was no such requirement in the case of an adit: that while there was no express requirement of depth, the development must always be such in its dimensions and character as to make it fairly the equivalent of a discovery shaft. In that case the evidence showed that "the appellant, in lieu of a discovery shaft, opened an adit on his lode, beginning at the surface where the lode was discovered, and running in and along the lode a distance of twenty or twenty-five feet, where it obtained a depth of eight or nine feet below the surface." In this case the evidence shows that the dev.11p.no.2-6 |