Coffee v. Emigh , 15 Colo. 184 ( 1890 )

Mr. Justice Elliott

delivered the opinion of the court.

The three records before us are very voluminous. Nevertheless, as they have been argued and submitted together by counsel, and as the parties and the property involved are the same in each case, we shall endeavor to consider and dispose of them in one opinion.

It is conceded that the territory of the Emancipation lode crosses the territory of the Western Slope lode almost at right angles and that the veins therein are cross-veins. The Western Slope lode is.the prior location. Hence, the owners of the Western Slope are entitled to the mineral within the space of intersection of the two veins; but, in the absence of contract, the owners of the Emancipation are entitled to a right of way through the territory of the Western Slope location for the purpose of working their own vein, and are entitled to all the ore found therein except within the space of intersection. Such is the law as declared in Branagan v. Dulaney, 8 Colo. 408; Lee v. Stahl, 9 Colo. 208. See, also, the latter case in. 13 Colo. 174.

It is further conceded that the acts of defendants complained of were committed upon the conflicting territory — that is, within the limits where the two locations cross each other, and within that portion of such limits which by the written agreement was to be owned and possessed as a part of the Western Slope location, though not within the space of actual intersection of the two veins; hence the question whether or not defendants were guilty of'trespass depends upon whether or not the written agreement and the conduct of the parties thereunder, as set forth in the replication, controlled the rights of the parties in .reference to the conflicting territory.

In January, 1880, when the alleged written agreement was entered into for the division of the territory embraced within the conflicting locations, the law was unsettled as to the rights of owners of cross-veins within the limits of conflicting locations. The case of Branagan v. Dulaney was not decided until 1885, and up to this time we are net aware of any decision, by the- supreme court of the United States construing the act of congress relating to the precise question now under consideration. R. S. U. S. § 2336.

We see no reason to doubt that the dispute between the owners of the respective mining claims as to their several rights within the space of the conflicting locations was caused by an honest difference of opinion in. relation thereto, and that all parties acted in good faith in endeavoring to settle the same. There was, therefore, sufficient consideration to support the voluntary written agreement for the amicable settlement of such controversy. The law upholds and favors bona fide settlements based upon such considerations. 1 Pars. Cont. 438; 2 Pom. Eq. Jur. § 850.

In Hoge v. Hoge, 1 Watts, 216, 217, Chief Justice Gibson says: “The compromise of a doubtful title,.when procured without such deceit as would vitiate any other contract, concludes the parties, though ignorant of the extent of their rights.” ....

. Plaintiffs .having alleged that they had .taken and continued in possession of -their several portions of the disputed territory in pursuance of said written agreement, were entitled to prove the same in support of their claim of lawful possession, and for the purpose of showing that the entry by defendants without license was unlawful. It was, therefore, error to strike from the replication in the trespass suit the averments respecting the written agreement, and the conduct of the parties in reference thereto.

In the action for specific performance, the court and jury concurred in finding that the owners of the conflicting mining locations did enter into the contract in writing to divide the disputed territory, and to exchange deeds in fulfillment of such contract as soon as they should respectively acquire the government title. This finding corresponds substantially with the allegations of the complaint, and is abundantly sustained -by the evidence.

The defendant Jackson was a party to the written agreement, and joined in its execution; hence, as to him, no question of notice can arise. The jury, however, found that defendant Emigh did not have notice of the written agreement when he purchased an interest in the Emancipation lode; but the decree of the court does not in express terms confirm such finding. 'Whether Emigh had such notice or not before purchasing, the evidence is strong and convincing that after acquiring such interest he repeatedly recognized the title of the Western Slope owners under the written agreement. It is clearly established, also, that the owners of the Western Slope lode, immediately upon the execution of the written agreement, and in pursuance thereof, entered into possession of that part of the Emancipation territory so acquired by them, and proceeded to sink a shaft at the fifty-foot division line designated in the written agreement,-erected a shaft-house-there, and thereafter continued their possession and working of that portion of the vein as a part of their own mining claim. Emigh himself testifies that he saw this shaft at the time he visited the property with a view of purchasing, and other witnesses testified that the shaft-house was in plain sight, and that the dump and evidence of fresh workings were observable there at the time. The court, therefore, should have found, notwithstanding the verdict of the jury, that plaintiffs were entitled to the premises thus acquired and occupied. Their possession under the written agreement, and the circumstances attending the same, were sufficient to put Emigh upon inquiry as to their rights in the premises. Besides, there is positive testimony from a witness, apparently disinterested, that before Emigh purchased he was expressly informed of plaintiffs’ rights according to the terms of the written agreement. Emigh denies this, but his subsequent conduct indicates that he was not without satisfactory information upon the subject. Wade, Notice, § 10 et seq.; Filmore v. Reithman, 6 Colo. 120; Doyle v. Teas, 4 Scam. 202.

The 'contention that there were laches on the part of the plaintiffs in not asking for a specific performance of the contract at an earlier date is without force. Plaintiffs were and had been in the undisturbed possession and enjoyment of the premises acquired by them under the written agreement for more than five years after the agreement was entered into, and until about one month prior to the commencement of this litigation. The agreement had thus been executed for all practical purposes, and, instead of plaintiffs’ title becoming stale by delay, it was ripening by the continued acquiescence of defendants. See Great West Min. Co. v. Woodmas of Alston Min. Co. 14 Colo. 90. In Bush v. Stanley, 122 Ill. 418, it is said: “ The doctrine of laches can only be invoked by one in possession against one out of possession.” That there may have been secret, under-ground trespasses upon plaintiffs’ territory thus acquired does not militate against the correctness of these views. Nothing appears to have been wanting to complete the execution of the written agreement except the formality of passing the title-deeds.

As to the alleged variance between the allegations and the proof on the part of plaintiffs it is only necessary to say that in view of the loss of the written agreement and the resort to parol evidence the proof is remarkably clear, strong and harmonious, and, in general, corresponds with the substance of the issiie as presented by the pleadings. This is all the law requires. It is true some testimony is contradictory of, and some is variant from, the terms of the written agreement as alleged, but such testimony is by no means sufficient to warrant an appellate court in setting aside the finding of the jury, confirmed as it is by the judgment of the trial court. Railroad Co. v. Lindsay, 4 Wall. 650; Crary v. Smith, 2 N. Y. 60.

The failure of the trial court to confirm the finding of the jury as to want of notice to defendant Emigh, together with the dismissal of the complaint “ without prejudice to the trial of the issue of law as joined between the parties,” indicates, as we think, that the trial court considered that plaintiffs had established their right to the property in controversy as against defendants, but that the case was not a proper one for a decree of specific performance, and hence remitted them to their action for damages.

The written agreement, as alleged and substantially proved, seems to us to be certain, fair, reasonable and just. The parties had entered into and continued in possession of the property in pursuance of its terms for a long time. Both parties are still able to carry out the contract. Plaintiffs are willing so to do. No good reason has been shown why defendants should not be required to perform on their part. 1 Story, Eq. Jur. §§ 747-751; 3 Pom. Eq. Jur. § 1407; Crary v. Smith, supra.

It is unnecessary to consider in detail the third record, which for convenience we have called the “ action of ejectment.” Its separation from the trespass case was an irregularity. In the course of'this litigation there has been an unnecessary multiplication of suits, and in each case the pleadings have been excessively voluminous. The provisions of our code of procedure in reference to the uniting of causes of action are very liberal. The statements of fact in pleadings are required to be “ in ordinary and concise language without unnecessary repetition.” In all cases, equitable relief may be granted, aznd legad a/nd equitable may, if sepa/rately and properly stated, be set forth, in the answer. Code, §§ 49, 56, 59, 70; Bank v. Newton, 13 Colo. 245.

The three judgments under consideration are accordingly reversed and remanded for further proceedings in accord-ance with this opinion. As the multiplied records and costs of the so-called ejectment proceeding were occasioned by the action of plaintiffs in the court below, costs thereof are adjudged against them.

Reversed.