The Shasta courier., 1864-09-24

the southerly boundary monument of the
SAID original discovery claims in a northerlv
course therefrom.
But the plaintiff also goes upon the theory
that by reason of the acts and declarations
OF the Aefendants they are estopped from de-
nylng the location Of the two claims which
johnson purchased as described in the com.
plant.
The plaintiff maintains that the defendants
pointed out the johnson tree as the point Of
boundary where the claims he purchased
commenced, that they set man to work
ths,son to dig tunnel for johnson within
siehmits ofthe ground he purchased, where
johnson expended about two thousand dol
lars for mining purposes, with the knowledge
OF the defendants, and that knowing the same
they did not claim the ground while this ex-
penditure was being made thereon, &C.. and
that johnson and the plaintiffs honestly sun
posed they had purchased this ground of tie
grsntcrs aforesaid. do not think this the
ory of estoppel is supported by the evidence.
Take Johnson's own testimony on the trial.
and it does not show that the pine tree desig.
mated in the complaint was ever ponte out
or shown to johnson, by any of the defend
ants. as boundary monument of the claims
he purchased. and as to the labors and ex-
penditures on the ground in dispute, these
were not made within the limits of the grounds
which the defendants claim in their answer
and are contending for in their defense thev
were not made within the limits of fifteen
hundred feet of the southerly boundary point
OF the said original discovery claims. But
considering all the evidence on the question
of estoppel, it fails to show any act, admis
sion, omission, thing or deed, of the defend
ants whereby, or by means whereof the right
to have and hold the property in controversy
inures to the plaintiffs as against the defend
ants.
The theory of estoppel is not proved in this
case.
The plaintiff called for the Intervention of
a jury on the trial A demand for a Jury
was filed within the statutory time, and a
jury was summoned and returned. Upon
reading the pleadings on the trial. the Court
directed the plaintiff counsel to frame and
present such issues as they desired the jury
to pass upon, whereupon the counsel took
time and prepared and presented to the
Court the issues on file, numbered consecu-
lively from No. one to No. twenty-seven,
which were submitted to the jury, whose
findings are embraced in their answers to the
questions contained in the respective issues.
The issues were submitted without instruc-
tions of the Court upon any matters of law
no instructions being asked by either party,
none were given to the jury.
The plaintiff contends that the Court
should be governed entirely by the findings
of the jury. N rendering Judgment in this
case. But hold that the law and the prac-
tice to / e in Equity cases, land this is deem
ed to be such case, that party is not as
ff ,rhf flaJ -, - i
that in such cases where the Intervention of
a jury is sought and permitted. and the jury
have passed upon and undertaken to decide
matters ofequity and law, as well as questions
Of fact, it rests in the sound discretion of the
Court to adopt the verdict so far as it may
deem the same an assistance in deciding such
questions of fact as must be determined, in
dependent of the matters of which equity
alone has cognlzance; and perhaps. in such
a case the Court should regard the verdict as
standing on the same grounds as one render
ed in an action at law. But in case such
as this is when the whole case is to be deci-
ded upon the principles of equity according
to chancery practice, requiring no independ-
ent question of fact to he decided before equi-
table relief can be sought, | think the
Court has not only the discretion but the du-
ty to disregard or modify the verdict. if re
quired in the order, to decree justice in the
case.
The material issues In this case are COM
plications of matters of fact ard questions of
law, an intelligent and correct decision of
which, involves knowledge and application
of the principles of technical law, which it
is not the province Of juries to decide. 1t be-
comes pertinent to review the findings of the
jury for the following reasons first, the
Court admitted evidence of the acts and ad-
missions of some of the cotenants in posses
sion of the Original Williams & Kilinger &
Campanys claim who are defendents in this
action, on the theory that the plaintiff would
prove in the course Of the trial that the other
had assented to or ratified the acts
of their cotenants, or that the defendants
as an incorporation. had confirmed them,
when the evidence thus allowed to go to the
jury would have become material and COM
petent. But no such consent or confirmation
having been shown, that evidence was i'm
proper and the jury were undoubtedly misled
thereby in their findings. Secondly, several
of the issues were inaitifciallv framed and
their answers involved both questions of law
and matters of fact, which complicated the
finding of the jury and rendered them inop-
erative for the purposes of a Judgment in this
case. Hence, deem it to be the duty of the
Court to decide the case on the pleadings
and evidence.
decide the findings of the jury as follows:
On. the issue No l, the finding is correct.
No. 2. Williams, Killinger, Silverthorn,
and one Worley, who, on the II tn day of Feb
ruary, 1868, sold his interest to Mexican &
Gallagher. as the proofs show. took up the
Original Williams 4 killinger & Company
claims, five in number, extending fifteen
hundred feet on the ledge from the southerly
initial boundary thereof. in a northerly di-
rection, in July, 1862. and in order to find.
as the jury did on this issue. as to the time
of the location and the ertent of the claims.
they must have considered improper testimo-
nv and miseonstrued The law of location, as
the decision of the issue involved both ques-
tions of law and of fact This issue Is not
correctly decided by the jury.
No. 8. This issue is sufficiently well de-
cided
No, 4. The answer to this issue was un-
doubtedly founded on the evidence proving |
the acts and admissions of some of the ten |
ants in common of the original discovery |
claims. which, as the evidence stands upon
the whole trial, is improper and is oyerruled. /
The findings in this issue are erroneous.
No. 5. The answer as to the consldera- |
ton implied in this issue is correct.
No. g. The answer to this issue is correct, ;