Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1864-07-01
Independent vs.. Nevada (Jussis
GFound)-RePort of the Referee.

the market, we publish the statement OF
the facts in the case and the finding OF the
Referee, emitting, however, the review OF
the testimony and statement of the reason
ing upon which the decision is based:
District Court, First Judicial District, Ne
yada Territory, County Of Storey-lnde-
pendent Gold and Silver Mining Company
VS.. Nevada Gold and Silver Mining Com
| pany. =.
This is an action commenced by the plain
tiff against the defendant for the purpose OF
obtaining an injunction in aid of an action of
eiectment, which had been previously COM
menced by plaintiff against the defendant,
and is still pending in said District Court for
the same ground or mining claim, which is
| mentioned and described in the present COM
plant; and from which ground or mining
claim, plaintiff asks to restrain the defendants
| from taking out ore or metalliferous rock.
| The case has been referred to me by order of
said Court, bearing date the Goth day of
| April, A. d. 1864, to take the testimony
in said cause, and report the same with my
! opinion upon the merits Of that application.
It appears from the testimony that plaintiff
by and through its grantors and predecessors
in interest, located the vein described in their
complaint on the 9th day of July, AID, 1860,
| by putting up notice in the small ravine
about fifty feet west Of the present hosting
works of plaintiff, and placing stakes about
one hundred feet apart in northwesterly d.
reciion from the present hosting works, for
the distance Of eight hundred feet-the notice
stake being the centre of the claim. The
southeastern extremity Of said claim was
marked and designated by cutting off the tops
of small bushes and blazing them for the dis
lance of eight hundred feet. The claim, con-
sistiug of sixteen hundred feet, including all
| the dips angles and spurs. That immedi-
ately thereafter the grantors of plaintiff went
| to work in order to develop the vein that was
then located by them; and the notice claim
ing said ground was duly recorded in the Gold
| Hill mining district on the 7th day Of July,
AID, 1860; that plaintiff and its grantors have
been in possession of said claim continuously
| from that time down to the commencement
of this action, except that part Of said VEIN
which was in the possession Of the defend
| ant. On the other hand, it appears from the
| testimony, that defendant by and through its
grantors, located the same vein on the 23d
| day of July, 1859, by posting notice in the
| top of little pine bush near some groupings
and between holes four and FIVE Of plaintiff S
map, and placing stake ia the rayine north
easterly of the notice, and about three hun
| bred and fifty feet above the Devils Gate
toll-road, and about thirty feet west Of large
boulder in the ravine; and designating the
| south line OF said ella; n by cutting the limbs
| off and blazing u nut-pine tree, 1t being
| twenty-one hundred feet southeasterly from
| the stake in the ravine, and at a soint on the
hillside nearly opposite the Waller Defeat
| Tunnel. That the notice claiming said ground
was duly recorded in the 9Th day of Septem-
Der, AID. 1859. That defendant and its grant,
ors commenced work on said vein, or in its
vicinity, Immediately after the location Of
| said claim, and have continued to work, pos
| sess and occupy said vein from the time Of
| its location down to the present time, except
that part of the claim which is in possession
| of and occupancy of the plaintiff. That the
said vein was under ground and undeveloped,
and that there was some slight indication
going to show that the lode ran up over the
hill, in southerly direction, but that the
most prominent and certain groupings ran
along the hillside.
That the notice claims "seven claims on
| this quartz vein''-" six claims running up
the hill in southerly direction, and one
claim below the notice in northerly direc-
ton" That both parties have done an
amount Of work sufficient to give title to the
ground.
That the indications Of a vein over the hill
| in a southerly direction is an otfshoot Of the
main vein running nearly east and west.
| That holes Z and 3 had been partially
sunk previous to posting the notice-the
course of the offshoot found in holes and 5
| is up the hill in southerly direction. There
was outcropping at the notice bush, and be-
longed to the otfshoot Of the main vein run
ming east and west.
| There are several offshoots running up
and down the hill, and are filed with quartz
| in immediate contact with the walls, and
have no clay casing they come in contact
with and do not cross the main vein.
The first work done by the grantors Of the
| defendant was on the groupings at notice
bush, in cut 3, and in starting the old tunnel
| OBJ in August, 1859, which run for the CROP
pings at the notice bush that in running
that tunnel they crossed the vein in dispute,
prosecuted the work about forty feet beyond
| the vein, then came back where they cross
ed the vein and, in April, 1861, commenced
| to run drift B.
There were admissions made by VIM. JUS
tbs at the time of the location BY the grant
| ors of plaintiff and to them, that the location
of plaintiff would not conflict with the loca-
ton made by the grantors Of defendant
| nat Tue W ehc SA1htOA o
| of plaintiff were, about the time their tunnel
was commenced, notified by the grantors Of
| defendant that they claimed the ground they
were then at work on, ank that they must de-
| sist.
| From this statement Of the facts in this
case the priority of the defendants location
being conceded by the plaintiff, the plaintiff
could rely upon two grounds only to defeat
| the location made by defendant, which are
| either that the vein struck by defendant in
the old tunnel was not the same vein as that
located by plaintiff, or, that there was a vein
running up over the hill in southerly direc-
ton, as claimed by their notice, and that de-
PENDANT had located that and not the one run
ming along the side of the hill in the direc-
ton of Silver City.
| The first of these two propositions was ad-
mitted by plaintiff, and the argument Of the
counsel was directed entirely to the last one
above stated,
This then, constitutes, in fact, the only
! question in the case"
After lengthy review of the testimony
and its bearing upon the point at issue,
the Referee concludes:
| "The extent to which this testimony would
lead me giving a strained force, would be to
say that they were technical ueins, but reason
| and careful consideration Of the testimony
| in this case, demands the conclusion at my
hands, that they are not veins, and would
not be denominated such by the ordinary or
practical miner, but that from every material
fact elected upon this point they are Off
shoots from the main vein, which is in con-
troversy in this suit.
Giving to plaintiff the benefit Of having it
classed as a technical vein, still it must be APP
parent to every fair-thinking mind that the
rights of parties should not be swept away
by technical disputation, and especially so
when the weight Of the testimony is adverse
to that classification. My conclusion there
fore, is, that there is but one vein in that vi
cinity, so far as developed by present explor-
atoms, and that runs along the side hill, and
is the vein in controversy in this suit. The
defendant and the grantors having the prior
location and prior possession Of that VEN,
and therefore better right to the same than
plaintiff, the application for an injunction
should be denied.
| The ahove onininn topether with the tes-