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required to establish one as the other. As the last part of the instruction requested by defendant as above stated was contrary to the views here expressed, it was not error to refuse it. K. P. Ry. Co. v. Twombly, Adm'x, 3 Colo. 129; Wall v. Livesay, 6 Colo. 465; City of Denver v. Dunsmore, 7 Colo. 340; Lord v. Pueblo S. & R. Co., 12 Colo. 393.

3. From the record it appears that no exception, objection, or suggestion of error of any kind, was made at the trial in respect to the instructions given. We need not, therefore, consider the assignments of error based thereon. We are aware that the Code, section 387, dispenses with the necessity of taking exceptions to the giving, refusing, or modifying instructions. The mere formal reservation of an exception by the defeated party was doubtless considered unimportant and liable to be omitted through inadvertence, and so was dispensed with. But the statute does not do away with the reason or necessity for making objections in some appropriate way to instructions in such time and manner as to give the trial court an opportunity to correct the same if found erroneous. Any judge in the hurry of a nisi prius trial is liable to err unless aided by the vigilance of counsel. From time immemorial it has been a well recognized and most salutary rule of the common law, that if counsel neglect to object or to point out errors occurring at the trial in such time and manner as will give opportunity for their correction, they will not, in general, be heard to complain of such errors in a court of review. This rule is so reasonable and so essential to the administration of justice that we cannot believe it could have been the intent of the legislature to overthrow it altogether. Any other rule would enable a party to sit silently by, knowing some error had been committed against his interest of which perhaps no other person was aware at the time, and thus take the chances of a verdict in his favor, while having the sure means of setting aside the verdict if it happened to be against him. The law in this jurisdiction never has permitted, and it is to be hoped that it never will permit such experiments with judicial proceedings. There will

always be enough important questions to review in the appellate courts if parties are required to be vigilant to prevent error in the trial courts. 2 Thompson on Trials, sec. 2394; Union Min. Co. v. Rocky Mt. Nat. Bk., 2 Colo. 248; McFeters v. Pierson, 15 Colo. 207; Wray v. Carpenter, 16 Colo. 271. Where instructions are prayed and either refused or modified the foregoing observations are not so clearly applicable. It is gratifying in the present case, that the instructions. given seem to be full and complete and in all substantial respects fair toward the defeated party. The record clearly shows that the instruction concerning the measure of damages was given at defendant's request. This furnishes an additional reason why the assignment of error based thereon cannot be considered. In view of the amount of the verdict the instruction, even if erroneous, which we do not intimate, could not well be considered prejudicial to defendant. A careful examination of the record discloses no substantial or reversible error. The evidence being conflicting upon the material matters in controversy, this court cannot properly disturb the verdict. The judgment, therefore, must be affirmed.



1. PERFORMANCE OF ANNUAL LABOR ON MINE.-Labor performed by the owner of a mine in constructing a wagon road thereto for the purpose of better developing and operating the same may be treated as a compliance with the law relating to annual assessment work.

2. RES JUDICATA-JUDGMENT OF REVERSAL.-Where upon the retrial after reversal the evidence on a given question differs materially from that offered at the former trial, the former judgment of reversal is not res judicata of such question.

3. CONFLICT OF Evidence in Cases appealED.-When there is positive and irreconcilable conflict in the testimony, the supreme court

17 105:

18 509

17 105

23 373

17 105

34 355

will not reconsider the credibility of witnesses or re-determine where the preponderance of evidence may be.

4. FORFEITURE AND RELOCATION OF MINING CLAIM.-Upon the issue of forfeiture of a mining location, by non-performance of assessment work, the conduct and interest of defendants who claim the advantage of a relocation through such forfeiture may be considered in weighing their testimony concerning the forfeiture. 5. SUPPLYING DEFECTS IN INSTRUCTIONS.-When instructions given on behalf of plaintiff are imperfect because of omissions to properly explain language employed, but that portion of the charge given at request of defendant supplies the deficiencies and the charge as a whole accurately states the law, the challenge thereto will be overruled.

Appeal from District Court of Clear Creek County.

Mr. L. C. ROCKWELL, for appellants.

Mr. I. N. SMITH and Mr. R. H. MORRISON, for appellee.

CHIEF JUSTICE HELM delivered the opinion of the court.

In the year 1881 three parties, Bryan, one of the appellants, Morris, the appellee, and a third person who will be referred to in this opinion as Alexander, were the owners of an unpatented lode in Clear Creek county called the "Great Republican." The undivided interest of Bryan in the lode was seven twelfths, that of Morris four twelfths, Alexander owning the remaining one twelfth. In January, 1882, appellant Doherty relocated the Great Republican, claiming that the original location had been forfeited by a failure to perform the annual assessment work for 1881. Upon perfecting the alleged relocation, Doherty conveyed to Bryan an undivided seven twelfths interest in the same, and to Alexander an undivided one twelfth, retaining for himself the undivided four twelfths interest which belonged to appellee Morris under the prior location.

Soon thereafter the parties named made application for a patent to the relocated claim. Morris filed an adverse claim in the proper U. S. Land Office, and during the month of

July, 1882, instituted the present suit in support thereof, The complaint contained the usual averments in connection with adverse proceedings. It also alleged a conspiracy on the part of Bryan, Doherty and Alexander to defraud Morris of his interest in the property through the pretended relocation. The latter and other similar allegations were evidently pleaded, and proofs in support thereof offered primarily for the purpose of charging the relocation with a constructive trust in favor of Morris. The first trial resulted for defendants, and Morris invoked his statutory right to a retrial by payment of costs. The second verdict being in his favor, an appeal was taken from the judgment entered thereon to this court. Here, a reversal took place, the court holding that questions of conspiracy, fraud, etc., could not properly be adjudicated through the present adverse suit for the purpose of establishing an equitable interest in the Doherty location; also, that the proofs then before the court were insufficient to show a performance upon the Great Republican of the annual assessment work required by law for the year 1881. Doherty v. Morris, 11 Colo. 12.

The cause being remanded, a new trial took place in which the issues and evidence were confined mainly to the question of annual labor for the year mentioned; it is true that some proofs indirectly touching the alleged bad faith of defendants were received; but their admission was solely upon the issue of forfeiture; the conduct and interest of defendants in the premises were pertinent subjects for consideration in weighing their testimony concerning the nonperformance of annual labor. Plaintiff again recovered a verdict. Defendants paid the costs and took a new trial under the statute. The fourth and last trial resulted also in a judgment for plaintiff, which judgment is now before

us for review.

The performance by Doherty of the acts requisite to a valid location is not seriously contested, and if the ground was subject to relocation defendants were entitled to a verdict in this action. The present examination will therefore

be confined mainly to the question of annual assessment work upon the Great Republican lode for the year 1881. The parties substantially agree that no ordinary development work was actually done within the surface boundaries of the claim. It is, however, strenuously contended that the law in this particular was complied with by the construction of a wagon road up Cottonwood Gulch to the Great Republican and Little Mattie, adjoining claims. We do not hesitate to assert that labor performed by the owner of a mine in constructing a wagon road thereto for the purpose of better developing and operating the same may be treated as a compliance with the law relating to annual assessment work thereon. This view besides being correct on principle, is also we think in accord with the rule laid down in the following cases: St. Louis Co. v. Kemp, 104 U. S. 636; 11 Morrison Min. Rep. 673; Mount Diablo v. Callison, 5 Sawyer, 439; 9 Morrison Min. Rep. 616.

The opinion in St. Louis Co. v. Kemp, supra, uses this language: "Labor and improvements within the meaning of the statute are deemed to have been had on a mining claim, *** when the labor is performed or the improvements are made for its development, that is, to facilitate the extraction of the metals it may contain, though in fact such labor and improvements may *** be at a distance from the claim itself." And in Mount Diablo v. Callison, supra, it is declared that, "Work done outside of the claim *** if done for the purpose and as a means of prospecting or developing the claim * * * is as available for holding the claim as if done within the boundaries of the claim itself."

This controversy therefore resolves itself substantially into the following question of fact: Was a wagon road constructed in 1881 for the purpose above mentioned, and was the sum of $100 reasonably expended thereon in behalf of the Great Republican owners? Both branches of this question are vigorously answered in the negative by counsel for appellants. The evidence now before us upon these subjects,

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