Twin Lakes H. G. Min. Synd. (Lim.) v. Colo. Midland R'y Co. , 16 Colo. 1 ( 1890 )

Beed, C.

Counsel contend that the fourth instruction was erroneous in charging “ that the fact that the land is designated as placers, and that the title thereto was acquired under the mining laws of the United States, constitute no evidence either that the ground in question contains valuable deposits of gold or other mineral, or that the same is valuable for placer purposes.” This clause of the instruction, above cited, should not be examined alone, but in connection with the balance of the instruction,' — to do otherwise would be in violation of a well-settled rule. The supposed objectionable clause is preceded in the same instruction by the following: “ That in determining the compensation for the land taken and the resulting damages, if any, to the remaining land, they may consider not only the uses and purposes to which it is now applied, but also any other reasonable use to which it may be adapted or might be appropriated by men of ordinary prudence and judgment. That if they believe, from the evidence, the land contains deposits of gold, they may consider that fact as bearing upon the question of the value of premises, and that, if the presence of gold enhances either the market value or the intrinsic value thereof, due weight must be given to that fact,”— which materially modifies the clause in question. Taken as a whole, we cannot see that it is objectionable. It fairly presents the premises or basis from which a jury could arrive at the value. The clause objected to, in our view of it, only amounts to saying that the estimated value of the property was not to be enhanced and exaggerated by reason of its having been regarded by the land department of the government and purchased from it as mineral or gold-producing land, and held and worked as mines. If this construction is correct, we cannot regard the instruction as erroneous. We are cited to numerous authorities, which we have carefully examined. They are to the effect that the designation of the character of the land granted in the patent, whether as swamp, agricultural or mineral, is conclusive and cannot be brought in question in collateral proceedings. . Here there was no question in regard to the character. Its character as mineral land was conceded. It was so regarded in the contract and recognized as being actually occupied and worked as placer mines. But such conclusive characterization- did not fix its value. It might, as mineral land, be worth no more than $5 per acre, the price fixed by law; it might be worth thousands; what the value was, was the question to be determined by the jury from the evidence. True, in the statute under which the patent issued, mineral lands are defined to be, in the act of 1872, “ as those containing valuable mineral deposits,” and in the Revised Statutes of the United States, as lands “ valuable for minerals,” and it is said that “valuable mineral deposits ” in lands belonging to the United States shall be free and open to exploration and purchase. This language being in the statute, it is contended that the last clause, of the instruction, “ constitutes no evidence either that the ground in question contains valuable deposits of gold or other mineral, or that the same are valuable for placer purposes,” is at variance with the statute, and that sale of the land as mineral was conclusive of the fact that it contained valuable deposits. We do not so regard it. We can only construe it as saying that the land, though containing valuable deposits, was not necessarily of great value,— might not contain gold in sufficient quantity for profitable working, and that the question of value must be determined from the evidence and not from the grant, which, under the-law, presumed or imported value.

' There is an apparent discrepancy in one respect between the different portions of the charge; that part given at the instance of plaintiff in error was fully as favorable as was warranted, and in some parts might be regarded as contemplating prospective and speculative damage, while that given at the instance of the defendant, though apparently somewhat at variance in this particular with that given on the prayer of the plaintiff, appears to be sustained by, and in the language of, the authorities. That in estimating damages, merely possible or imaginary uses or speculative schemes of its proprietor are to be excluded, see Pierce on Railroads, 217; Searle v. Lackawanna & B. R’y; 33 Pa. St. 57; Dorian v. East Brandywine & W. R’y, 45 Pa. St. 520; Fleming v. Chicago, D. & M. R. Co., 34 Iowa, 353; Worcester v. Great Falls Manuf. Co., 41 Me. 159; Lake Shore & M. S. R. Co.v. Cin. S. & R. Co., 30 Ohio St. 604. That it is proper to put in evidence the present and any reasonable use in the future to- which the property .may be' adapted, but not the intentions of- the owner as to such future use of the land, see Sherwood v. St. Paul & C. R. Co., 21 Minn. 127; Pinkham v. Chelmsford, 109 Mass. 225 ; Fairbanks v. Fitchburg, 110 Mass. 224.

. It is ably urged in argument that the third and fifth instructions were erroneous in the clauses where it was said that the value of the land taken and the damages to the residue should be assessed “ in accordance with the situation of the propertjr and conditions existing at that time,” viz., at the date of filing the petition.

■ The language in our Code of Civil Procedure, section 253, is-: “ In estimating the value of all property actually taken, the true and actual value thereof at the time of the appraisement shall be allowed and awarded,” etc.

. The statute is imperative, and the instruction is, in violation of it, technically incorrect. In view of whatj according to the record, “ the evidence tended to show,” we cannot say the error was harmless; whether or not there was any change of value between the date of the petition and the time of trial is not shown. As it was erroneous, and counsel for plaintiff in error insist that -it was prejudicial, the judgment should be reversed and the cause remanded.

I concur: Richmond, C.

' I dissent: Bissell, C.

Pee Cueiam.

. For the. reasons stated in the foregoing opinion the judgment is reversed.

Reversed.