Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1864-06-09


to the full extent claimed by 1t and its grantors;
and plantif by number OF It's witnesses proved
the actual possession Of the grantOrs of defendant IN
and about the deep shaft of the Uncle sam Onpally
and ut that time did not pretend dispute the title
or possession Of the grantors OF defendant TO the
ledge struck and worEedb by said grantors.
The question OF eStOppcl which was raised by
the testimony and urged by counsel on the arGu-
ment-after careful consideration think the testi-
mony totally fails 10 come up to the requirements
Of the law, as 10 produce the effect which would
flow from an eStoppel by record or In paS treated
Us admissions on the part Of defendant when given
their full force it is the weakest Of oil testimony ana
with reference 10 this case especially, It Is entitled
to but light consideration II any.
There was some testimony tending TO show that
defendant or Its grantors had acquired possession OF
its ledge by force. am unable TO see how this cir
cumStance can benefit the PLAINTIFF; It, nor its gram
tors were dSpuSsesScd by force; they are not the
parties wrOngcd; ii any WRONG was committed
ID was not for them TO complain; ii it was. the de-
PENDANT could, with equal prOpriety, say the parties
whom tOrciby dispOSsesScd are entitled To the
ledge aud not the plaintiff. II could not avail plain
III I'm any event unless il deraigned title from the
parties dispoSSessed by force.
After plaIntilI had made his prinG JGcie case, It
dcvulved on the defendant, and the buTthen OF
proof WAS on il, to show that the ground in CON
trOyersy belonged to it. AMI not TO the planting this
was the issue presented by the pleadngS, and this
brings me 10 the point, AMI conceive TO be, the
ouly point i'm the case, which Is the existence Of
one or two lodges NJ the point in contest between
the plaintiff ami defendant The testimony upon
this point Is conflicting, but there are controlling
facts which to my mind gives the weight OF the
testimony in favor OF defendant, OF at least that
il there two hedges, 1t is not possible to draw the
dividing line with the least show Of Justice or &C
CuraCy.
witnesses that In entering the Uncle Sam mine at the
main hosting works land south Of that point at
distance OF one hundred and eighty feet below the
surface, You strike body OF quartz dipping TO the
west and thence following that level In north
eaStcry course, you pass in quartz 10 point near
the llNwkcyc shaft, thence passing into the mann
works OF the Uncle Sam Company TO the point that
INCL
and passing through the main works marked
Chamber" to Il point marked 80" nntil you
reach the main chamber of the Mary Ann Company
passing through that until you reach the point IS,
which Is also marked 4" Incline and follow
through that to the point - You pass through
continuous body oil quartz irom the point ~
which You commence until you reach the last point
designated THE point "2' Is the point NJ which
plalntl claims defendant entered, ana runs thence
south five hundred feet and also the points above
designated vii! bc found on defendants map.l This
testimony stands uncOntradictcd, AMI Il does seem
III me 10 BE- Impossible from thlS evidence |" ar
rive Ut any other conclusion than that ths Mbrk
above described is run in but one ledge; II TWO
Lodges, where the dividing lines! The plAnllll
having established this point, then 1t became bur
then uUon the plaintiff 10 show by proof tue GNlNt-
enCc OF the lodges and the line ul separation. so
far rs the ground in controversy is concerned, THIS
the paiutn fuilcd 10 do; and rs TO the southern
limits about that there was no cpnrOSerSN, liie
proof from both parties IN attempting 10 SHOW the
existence Of one and two lodges narrowed tue issue
rs to tine extent OF the ground To that point lying
north OF the Mary Ann chamber. 1t Is true Dr..
Nra;ch (for whose opinion | have the greatest re-
Spcct) and others entertain the opinion that there
are two hedges al point north nl tiic Mary AIM
chamber yet the opinion OF Dr. Ncltch is thcOTelt-
cal, based upon SuppOStulS t'lat may be false III
fact I.d although clear and plausible is matter OF
theory supported by strict integrity and aCSnUwl-
edged ability and learning, his opinion was not
given with that degree OF confidence that more GER
tain data and more extended explorations would
warrant; IN other words, the testimony OF Dr.
Gcatch was delivered with that degree Of caution
and conscientious CXactncSS which strongly INT
pressed me that Ii was highly possible OF. probable
that III might DC mistaken. surely. such hypnlhct-
ical evidence cannot outweigh facts demonstrated
and maize patent Ia the senses, such Us those men
TONED above, addUCcd on the part OF the defendant.
Again, 10 give tull scope To the testimony Of the
plaintiff on this point, and stu the plaintiff must
fail Tor Dr. Ncatch only processes TO have discovered
the west wall of the Mary Ann ledge at two points,
the point II on plantiIiS map, Of which he Is
confident and that at point 10 west Of small a,
uI which he is not 81 confident; II, then you draw
Il straight line from this last point 10 u, 1t shows
that defendant has not entered upon any part OF
the ground In ISSUE for by actual measurement II is
seventy feet. and 10 point - it is over that from
the Mary Ann working shaft; then assuming the
position of DR.. NeatCh To be correct, The palllt ny
its own showing proves that the defendant has not
entered upon any portion of the ground IN dispute,
and rs charged In its complaint, or that defendant
is taking quartz thcrplrUm. An actual survey Ol
the tunnels, inClincS and drifts OF the defendant,
demonstrates beyond II doubt that You travel III
one unbTOkcn ana continuous body Oi quartz from
the main hOistIug works Of the Uncle sam COrnpa-
nv w the very point Ii ION plaintiff 5 map.
where Dr. NcatCh is certain that he lindS the west
wall Of the Mary Ann ledge. This being i fact OF
the citIrcSt proof may IL not he reasonably cOIl-
CiudcI that this Is the west wall OF the Uncle sam
ledge; and from all examination OF the ground, the
map, and the work done in that vicinity, 9cl'eve
IL to hr the west wall OF the Uncle sum ledge, In
stead OF the Mary Ann. Surprising that there are
two lcdcCS at that pOnt-Hnd reach this CONCLUSION
from the following facts: that 1t point southwest
Of the Mary Ann chamber, OH defendants map,
there three drifts ur tunnels running nearly uc
wcSl two the water level, near by the Uncle sam
COMPANY and the other by the OVcTmall-the over
man tunnel being one hundred and s:Nty-Ilve feet
west and run In pOTphyry the entire distance; anu
50 with the parallel tunnels Of the Uncle sam Com
pany one distance of - feet west anu the other
in feet west. Then il you 20 buck TO the point
where these tunnels above mentioned branch out
from the most western lateral DRIFT OF the ncle sam
Company on the second level and follow the same,
Curving to the west and leading TO point below Y
and ." the ledge between " y and - lin pencil
on defendant map Is very much broken up ana
on the same line nj lower level. you run IN por
phyrv; and from the further fac; that northwest oil
the Mary Ann chamber. all along from point west,
and opposite u to point west and opposite the
Mary Ann chamber, in running west you strike into
pOrphyry, evidently showing facts To warrant the
conclusion that the west wall Of the Uncle sam
Ann chamber and the further fact that at any point
east of the line mentioned above, you strike quartz
forming Il well defined and metal bearing vein.
Then suppose We assume that two Lodges TO exist
NJ The uoni I'm controversy and that by some freak
Of nature other cause they have been thrown To-
gcthcr and become SO united and intermnGled that
the most scientific and practicable experts are unable
10 point out and define the separating lines between
the two Who shall have the ledge thus united, as
between the two cUntending parties! Will II, and
SHOULD not. be decided upon the principle Oi prl-
Ority OF location? Could there he any case where
the maxim Qui prior est tenpore potion est Jre
would apply with more equal and exact Justice! TO
my mind II is too clear for argument My conclusion
of law therefore. upon the foregoing facts i, That
the application for IN injunction upon the part oil Inc
planiiil should be denied and 50 | repOr; to your
Honor, trusting that You will give the testimony,
which Is herewith submitted to you, careful con-
sheraton und If have fallen into error, that you
will correct the same. l would further state that
procured the testimony from the plaintiff, with the
understanding that after your Honor had examined
il, that II should be returned.
An of which is most respectfully submitted.
Z. U. HUNDLEY, Referee.
To Hon j. W, NORTH, Judge of the First Judicial
District, Storey county, \. L.