Gold Hill daily news. [volume] (Gold Hill, N.T. [Nev.]) 1863-1882, 1864-06-09
Opinion of the Referee in the Case Of tho
Gary Ann VIZ. Uncle sam.

The above entitled cause having been referred to
me by order of the abOTc-namrd Court bearing date
the 18th day Of March. \. d. ISL, for the purpose
OF taking testimony and reporting an opinion there
on, upon the application of plaintiff for an mlunc
ton restraining and enlOiuinG the defendants from
the commission nt certain acts arcrrcd in plaintiffs
complaint. In obedience Ia said order. |, Z. U.
Hundlcy referee in said cause. beg leave to submit
the testimony taken by me and the following Opin-
ION upon both the law and the facts arising In said
CauSc.
The testimony in this case is very vOiumlnouS.
ami shall content myself with presenting To your
Honor the facts rs found by me from Il careful cN-
animation of the testimony, (SuCh Us the magnitude
ami Importance OF the case demanded at my hands,
AMI commenting upon such parts as | deem me-
ceSSlry. To explain the view have taken i'll this
opinion.
1t appears from the testimony that the Mary Ann
Company. the plaintiff herein, on the 26th day Of
January, \. d. ISL, located by and through It's
granOrS the quartz claim or lead described IN their
notice Of location.
That said claim or lead was located in the Gold
Hill Mining District, county Of storey ami Territory
OF Nevada; that the said notice Oi location was 10
corded in said mining district in February 4. u. l>6l;
that the ledge claimed by the notice was struck on
the 81 day OF July, - Il. ISL, and declaration 10
that effect lied and recorded in the Office oil the Re-
cordcr Of such mining district that since the last
mentioned date the plaintiff and its grnntOrs have
been in possession OF the ledge struck by them ON
the Sd day OF July, lS6, down to the present tim"
sinking shafts running drifts. etc.
On the other hand, IL appears from the testimony
that the Uncle sam Company and its grantOrS and
predecessors in interest made the location nj mill
Ing claim In that vicinity on the 18th day Of March,
lSjD; that the notice claiming said location was
originally posted at stake MAJ kcd on plaintiff map
~, and also the "UEclc sam Co.'S north stake.
That Il short time thereafter Oi the original oca-
tors AMI gTantUrS Ot defendant TOOK this notice
down, corrected the same In some respects, anu
posted ii about the 2lSt day ot April lstu, Ill
cedar bush about one hundred feet east Ot the Uncle
sam old cut That the old cut last spoken OF was
made by the gTantUTS Of defendant Tor the purpose
OF defining the northern limits Ut the claim. That
the last notice spoken OF was recorded III the Otlce
the Recorder Tor Gold Hill Mining District, by or
der OF the company on the list uay ol Aprli, loo"
That the Uncle sam old cut was made in June or
July, lStl. By Defendants grautOrS. That the urSt
old shaft was sunk In March, lS'H. That the deep
shaft LIS feet deep sunk i'll June or july, l>J
and quantity OF quartz taken thcrciron In that
year, and also IN lShl. That I driII was run from
that shaft about ~ feet in Sh. That in January ana
February, lSil the Uncle sam Company was sinking
an nyliIIe from the deep shalt. That the Uncle sam
Company Claimed three thousand leci south from
the point where the notice OF tine 2iSI day OF April
lStu, was placed. That the company ratified ana
approved the removal Vi the notice az l2th March
l>tI (and its COrrcctt0nSD. rom where II WAS nrSt
placed To the point where 1t was last UNrd, luat
the defendant and Its grailturS ami predecessors III
interest have been in possession OF the claim OF lead
claimed by this last notice, continuously, from about
the middle OF June lS'O, until the present time run
ming drifts, sinking shafts anu taking out ore etc.
That at the time plaintin located lis claim, the
ErautUrS and predecessors In Interest UI defendant
were actually engaged III running an incline from
tue deep obi shaft, and were taking ont quartz
thrrri-uul. That there certain Indications GO-
linz show the existence vi two lodges at the time
Uf the location made by the GrantOrS OF palnt and
that some Of the grautUrS OF defendant admitted
and declared the fact To bC, which declarations AMI
admissions came to the knowledge OF the grantorS
OF plaintiff, but dnt from subsequent developments
that there Is but OF. ledge Al the point which plain
till SEEKS TO culOin the defendant from working and
lar northeast explorations have been made or
ii two leads do exist that they are 50 completely
intermiugled aud blended that IL Is impossible Tor
any 10 define the boundary HE between them.
Upon this state OF facts many points have been
raised by counsel In the argument OF this case.
propose 10 notice some OF them briefly, anu then
give my conclusions ui law upon the facts Is found
above.
The lirSt point TO which my attention WAS called
WAS Is Ia the degree of evidence necessary 10 enttc
party To an injunction. My opinion OF the law on
this subject IS that the referee or Judge should be
sutisisa! from the evidence that the party seeking
the Injunction would BE- entitled To verdict in his
favor on the final hearing OF the csiSeand this view
Is clearly supported by both the structure a man
nrr oil proceeding under the law i'll force on that
subject In this Territory. DO not say the Judge or
referee should be satisfied beyond reasonable
doubt, nor yet that there would b. strong prOil-
hity OF the party obtaining verdict IN his laNc or
unless this strong probability would amount To Il
conviction Of the partyS right to verdict but do
mean that the Judge %: referee must be satisfied,
from view Uf all the testimony In the case, weighed
10y the strict principles Oi law, that the party apply
Ing for the injunction would BE- entitled 10 vcTtlct
on the final hearing Of the case. Why permit the
merits OF the Ia hc gone into AMI developed be-
fore the Judge referee, unless the case was Ia lie
decided upon the question. whether the plaintiff
would bc entitled to recover or not? After the
whole matter in controversy had been presented IL
would be against the reason ami spirit OI equity 10
SAY that because the Judge or referee WAS In doubt
70 the tnA termination OF the controversy, he
would grant the application. Where there Is L
Doubt the equities equal, and 1t would De- Incqui-
table To give one party the right OF Its remedial
process to combat an equal equity.
The plaintiff contends that III lis complaint II
the ownership anu possession Of certain Spe-
cited ledge, and tia; defendant has entered upon
live hundred feet Of that ledge, commencing II Il
point seventy feet uOrtlerly from the present work
ing shaft Of the plaintiff, AMI runs SOutherly about
i've hundred feet along AMI including said ledge tor
tina; distance, and that In answer To the allegations
OI this complaint the defendant denies the ownership
and possession OF plaintiff anu sets up titc AMI OWN
eTShp IN itself to the same ledge AMI therefore, uI
der this denial and claim Of ownership II there are
tHO hedges, Il Claiming one and the defendant the
other, the plaintiff Is entitled 10 the ii1unCtolI-.u-
though this statement Is correct TO that part Of
the Defendants answer, yet, ~ whole ami with
reference to the complaint and the testimony IN thlS
case, IL seems 10 NE the issue formed by the plead
ln:S and tried by the parties WAS this tina; plaintiff
claimed the disputed ground 10 be Il part OF its
ledge and the defendant Claiming the same ground
TO be part OF its ledge, ami the burthe was Oh the
pllntiH before he had 4 prime fGcie case 10 show
that the ground IN controversy was Il part OF lis
ledge and In order TO defeat the case thus made by
the plaintiff. the defendant must show either that It
is part AMI parcel OF the ledge claimed by IT, or
that the hedges have become united and ncrmin-
Gled that IL Is impossible to trace the dividing line
or that IL has not entered upon any portion oil the
ledge claimed by plaintiff. l DO not consider that
the defendant has in any manner, By It's pleading,
made any concession OF the point In dispute. So
far from that II claims that the point In dSp ute be-
longs to, and IL Is the owner thereof.
The next point, which WAS dwct on at conSideTa,
bic length by counsel for plaintiff was as to actual
and constructive possession, holding the position
that In order for party to acquire constructive pos
session Of any part Of mining claim, that party
must conform to the mining laws OF Tue Hiclnage,
and that II ne took mining claim without comply
ing with those laws, he could only hold that part
which he actually occupied. This is not my view Of
the law. hold that YOU can acquire constructive
possession of mining ground in Two ways; first by
complying with the mining laws, and second, out
side OF the mining laws, by defining the claim with
distinct, visible and notorious boundaries; and
when you have thus defined the claim and are at
work on part, ii extends the possession by con-
structlOn to the full extent Of the boundaries
claimed; and he who enters by no better right on
the claim thus Defined must yield TO priority OF To-
cation. This point Is expressly decided in the case
Of English vs.. johnson. Il Cal, Ill., where Bald
win. Judge, holds this language: :" But We think
where claim is distinctly defined by physical
marks. that possession taken for mining purposes
embraces the whole claim thus characterized, though
the actual occupancy or work done be only on,
or Of part, and though the party does not enter In
accordance with mining rules, or under paper
title" In this case the defendant could properly
claim under and by virtue Of paper title In con-
formity with the stpulatOnS entered into between
plaintiff and defendant in the outset Of this case
but IL Is not necessary from the view that have
taken Of this case, the grantOrS of defendant, or
those from whom IL deralgns title, in locating lis
a cut in strict proximity to the claim now in dis
pute the shaft was sunk with the avOwed inten-
ton Of drifting thereIrOm In westerly direction.
The notice was subsequently resumed which was
ratified by the company. and ordered to be recorded
and placed II on tree or buSh which marked the
northern limits OF the claim, shaft was SUNK dis
tant some tive hundred feet sOutherly from the no.
tice and old cut; this SHAFT was about ten OF twelve
feet deep, and some thirty feet from this point
northwest they sunk second shaft and run drift
from the about forty feet and took out quartz
from this shaft in July August and September, and
also made the old cut one hundred feet west OF the
notice. and of the witnesses say, for the eX-
press purpose of defining the northern limits OF the
claim and this assertion Is borne out from the TACT
that this old cut Is hundred feet west from the
notice, and on Il direct cHSt and west line. showing
its significant relation to the notice, and developing
the Intention and purpose for which this physical
mark was made: then the testimony goes 10 show
that there was a southern Us well northern
stake and In the absence Of any contradictory tes-
mOny upon this point, must believe IL to be true
but surprising there was no southern stake, the no
tice gave you the initial point, and claimed lhrec
thousand feet the continuation OF the Crown Poht
lead; the Crown Point lead lay in the north, ana as
a consequence, the continuation of that lead must o.
necessity be south; but aside from this, the WORK
done on the claim prior to the location OF plantin
claim plainly and unequivOcally Indicated the course
of the claim: for all the work and physical marks
spoken of above south Of the notice. except the
old cut which marked the northern limits oil the
claim and at the time that plaintiff or It's grantors
THAR defendant, Its grantOrS,