Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1873-12-14
THE RAYMOND 4 ELY VS.. THE
KENTUCKY MINING COMPANY.
JudQe Beatty's Decision.

The repeal Of that article could not di.
vest that right, though no doubt 1t did
completely abrogate the rule which it had
o,,empted to establish as to what should
ba deemed evidence of abandonment.
That rule was probably imperative from
tbe beginning as being in conflict with
the general law OF the land. But its
repeal before it could have had any op-
Grafton, in any event, does away with
the necessity of determining what effect
il might have had. Suppose, however,
none of the Panaca locators had ever
done any work on their claims af,er they
we're recorded. their right to the ground
could not have been forfeited prior to
April 1s, 1865, and by the amendments
to the mining laws of July Is, 1864, it
became impossible for their claims ever
10 be forfeited until the miners of the
district, or the Legislature of the State,
or Congress, chose TO revive that penalty.
This was never done till after the active
resumption of work by the successors OF
the Panaca locators. Upon these vari-
ous and independent grounds have my
conclusion'that the right to these loca-
tons was never forfeited. 1t was con-
tended in the argument that these
amendments of July Is, 1864, should be
dsregarded as unreasonable and of in
furious effect. But l am satisfied that
the courts OF this State can no more dis.
regard the the plain intent of mining
regulation upon such considerations,
than they can set aside statute passed BY
the Legislature. The Legislature is the
exclusive Judge OF questions of policy,
and as to the internal regulations Of
mining districts, the miners are the Leg
islature. Their local customs and regu-
htions have long been recognized by the
courts as the rule of decision OF mining
rights, and their authority to make such
regulations and establish such customs
has been expressly ratified by the Legis-
ature and Congress (Act OF Congress,
July 26, 1865, Ch. l53, Sec. ~. All that
court can do is to inquire whether or
not their rules are in conflict with the
law established by the sovereign power.
II there is no conflict the rule is binding.
II it is an unpolitic rule, the miners must
be left to make that discovery for them
selves and to amend it, or if it is mat
ter OF general interest, the Legislature
will amend it. There is no doubt that,
until the passage by Congress of the
mining law of May, 1872, the miners
had and always exercised, the right of
prescribing the conditions OF forfeiture
Of mining claims. No doubt they often
abused that right. and that was probably
the reason why Congress at last inter-
tered. While, however, they had the
right to prescribe the conditions Of for
feiture, they could certainly provide that
there should be no forfeiture in any
event.
We're their claims abandoned.
The result of the authorities cited upon
this point seems to be non user or failure to
occupy mining claim during the period
which, under the statute Of limitations,
would bar any action for its recovery,
raises a presumption of abandonment,
but not conclusive presumption. 1t
may lie rebutted by proof OF circum-
stances which show that there was no
intention to abandon. The law of Con.
gress of May 5, 1866, Ch. AZ, Sec. 2, does
not change this rule in its application to
this case. Its only effect was to pre-
serve the mining claims included in the
territory transferred from Utah to Nevada,
in stata quo. unaffected by the change OF
jurisdiction, to make them as good in
Nevada as they were in Utah. 1t left
them, as all property every where is,
subject to be abandoned, and it left
the rule for determining the fact Of
abandonment unchanged. Applying
that rule to this case,, it is shown
that all OF the Panaca locators failed to
occupy or work their claims during q
longer period than that prescribed by our
statute of limitations (two years. prior
to the Kentucky location. The presump.
ton is that they all were abandoned, and
there is no evidence sufficient to rebui
this presumption except in the cases Of
Hamblin, Sherwood and Vandermark
My conclusion is that these three par.
ties did not abandon their claims. bu,
that all the others did.
The plaintiff as successor in interest tc
Hamblln, Pulsi6er, Sherwood and Van.
dermark has perfect right to as much
OF the Raymond & Ely vein as was EN-.
braced in their original locations-a right
which dates back to March II, 1864.
But those locations embraced but three
hundred and fifty out OF the Thousand
1eet In CONTROVERSY, and do not include
any portion of the ground from which
the plaintiff was ousted by the defendant
ms renders it necessary to determine
ihe next questions. Was the Kentucky
location valid, and if so, were the right.
originally acquired under it preserved?
II this location was valid there is nc
douot that the right acquired by means
Of Il were preserved by full compliance
win every requirement of the mining
law. But two objections are urged
against the validity OF the lacation.
FIRST. That the notice was void for un
certainty, because it did not in any way
designate what particular thousand feel
OF the ledge was claimed. ECCl.E.f-
second. That the claim was void OF
account Of the fraud attempted by thu
iocators in Claiming two hundred feet fol
discovery, on vein which they knew te
nave been previously discovered and 10
Gated BY others; under whose license they
were Weie mining upon it at the very time O.
AS to the first objection, do not thinl
suat the intention of the locators, lie,
ana Baker, that the monument should
marx 'he center of the claim, cures th,
.eiect OF the notice. II their secret in
.ention could control the location, no on,
could ever have been safe in going with
"a thousand feet OF them on either side
.or another trial, in o CONTROVERSY be
.Seen other parties, Mccall might sa,
saat II was his intention that the CLAIM
should extend q thousand feet TO the cas-
III. y; me monument; or Ayrs might say tha
s M intention was that It should rui
wholly to the west. OF course I wish i
" oe understood, that say this only b,
tiy ol Illustration Of the endless uncer
t,a.nly and confusion that would resul
rom q rule allowing locators Of minjnl
ground to establish their boundaries b,
means means Of their unpublished intentions
uu IN" not Tor the purpose Of intimat
lug That Mccall or Ayr would swear I,
anything hut the truth. The very essenc
FAN. y. = mining location is the manifest in
nn. uMon to appropriate certain speciH
PoruO0 OF the mi aro1 Ia ., 4 - . IN ovno,