Electro-Magnetic M. & Development Co. v. Van Auken , 9 Colo. 204 ( 1886 )

Elbert, J.

Section 7, General Laws, 630, 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.”

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 ten 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 defendant company, in lieu of a discovery shaft, opened an adit on its lode, beginning at the surface where the lode was discovered, and running in and along the lode (well defined and with mineral) a distance of fourteen or fifteen feet, where it obtained a depth of about nine feet; that the adit, at a distance of about six feet from the point of beginning, entered cover; and that the remaining nine feet were under cover and timbered. The court below rejected the excavation made by the defendant company as not a sufficient “open cut,” because it did not cut the lode at a depth of ten feet below the surface. There was no error in this. There was error, however, in rejecting the excavation as an adit because it' was not under cover.

Every adit upon a hill-side, if continued, must enter cover at some distance from the point where the excavation begins,— at what distance will depend upon the inclination of the surface. Supposing the lode to outcrop, the point where the excavation enters cover, and the point where the lode was discovered, would never concur, except when the ground presented a perpendicular face. The term “adit,” as the legislature understood it, is what must govern. In this section they were legislating with reference to an actual condition of things,— with reference to mining lodes so situated as to be reached by means of horizontal excavations. To an excavation “in and along a lode” they applied the term “adit,” and fixed the point where “the lode may be in any manner discovered ” as the initial point from which the development was to be measured. The point at which the excavation enters cover was not mentioned, and clearly was not in contemplation. The effect of the ruling of the court was to fix “cover” as the initial point of measurement. This is in derogation of the express provision of the statute. We find nothing in the technical meaning of the word that rejects such portion of the excavation at the mouth of the adit as may be in the nature of an open cut as not being a part of the adit. As the term is used ■ in the statute, the legislature must have contemplated that, as to the ten feet required, it might be either open or under cover, or open in part and under cover in part, dependent on the nature of the ground. In the construction of statutes, general terms are to receive such reasonable interpretation as leaves the provisions of the statute practically operative.

Although the discovery and location of the Willamette lode were prior in point of time to the location of the lode of the defendant company, there was much conflict in the testimony as to the depth of the discovery shaft. As the instructions of the court practically precluded a finding for the defendant company, it remains doubtful whether the verdict of the jury in favor of the plaintiff was not based upon that fact, rather than upon evidence showing a legal discovery shaft in the case of the Willamette. However this may be, the defendant was entitled to have the whole case submitted, under proper instructions.

The judgment of the court below is reversed, and the cause remanded. Reversed