Pioche daily record. [volume] (Pioche, Nev.) 1872-1876, 1873-12-14

neiu 10 extend the claim equal distances
each way from the location monument.
Ihe case is not quite parallel to those
cases decided in the State of Kentucky.
which are cited in support of this view;
but, concedipg that It falls within the
principle established by these decisions,
and that there isno objection to the valid
ity OF the location on the ground of un.
certainty, the second objection appears
to me to be fully sustained. q
The Act Of Congress of July 26, 1866,
was in force at the date of the Kentucky
location. 1t provides (sec. A. "that no
location hereafter made shall exceed two
hundred feet in length along the vein for
each locator, with an additional claim for
discovery to the discoverer of the lode"
Now, on the assumption that the Ken.
lucky and the Panaca are on the same
vein, it is clear that Lee was not the first
discoverer, and, moreover, he knew it
when he made his location, for he saws
that he considered at the time that the
Panaca shaft had been sunk on de-
tached portion Of the groupings Of the
vein he located.
But on any assumption it is shown by
the overwhelming weight OF evidence
that, at the date Of the Kentucky iora.
tion, Lee and Baker both knew Of the
previous location of the same ground by
Atkinson, Chaubard and Others as the
Caroline. Assuming, as we must, that
they knew the law, Lee and Baker at.
tempted deliberate fraud upon the pub
lie by taking discovery claim in addition
to all they were entitled to. In my opin-
on this invalidated the whole location.
For Mccall and Ayr must participate in
the consequences with lee and Baker
who acted for them, and for the further
reason that they had notice at the time
that they were locating the Caroline
claim. Having such notice they could
only take O discovery claim at their peril.
1t has been suggested that although these
four men had not the capacity to take
more than eight hundred feet Of the vein,
their attempt to take thousand feet
does not render their claim utterly void
as to the excess; in other words, that it
left them good claim to eight hundred
feet extending equal distances each way
from the monument.
This might have been so il they had
been acting in good faith, really believ.
ing that they were the discoverers of the
vein. But they were acting in bad faith and
their fraudulent intent tainted the whole
transaction. They cannot now be per.
mitled to reap all the advantage they
would have gained by acting honestly.
Attempting to compass by fraud more
than they were entitled to they incur the
penalty Of losing what they might have
had.
The Kentucky location then being void
the ground was free to be appropriated
by the locators of the Lightner claim, ex-
cept that part OF it covered by the Ham,
bin and Pnlsifer claims.
WAS THE LIoHTNER LOCATION VALID?
The objection to 1t is that it was not
made in good faith by the locators for
themselves, but was made for the benefit
of the corporation, plaintiff. ....
There Is no doubt about the fact. The
location was made for the benefit of the
corporation. But does that invalidate it /?
The argument is that q corporation is a
single person. and that even il it could
make location OF mining ground it could
take only two hundred feet, whereas
the Lightner locations was of thousand
feet. All this is very true, but the conclu.
sions do not follow. The corporation
acquired this ground not by location but
by conveyance from tho locators. They
had right to locate it, and to do after.
wards what they pleased with their
claims. 44E u
The plaintiff was in possession of the
ground, claiming thunder title of doubt.
full validity. 1t had expended large sums
in prospecting for the vein. 1t had been
successful. There was nothing wrong in
its attempt to strengthen its title. The
corporation was one, but its stockholders
were numerous. A thousand feet Of
ground was not an excessive amount fol
them to claim if they had done so direct
ly. Was there any harm in their doine
it through others who were willing and
could be trusted to make the location anG
convey to the corporation? think not
The result was that the stockholder,
acquired interests in the ground in exacl
| proportion to their contributions for it
development. In its substance and es
sence this was a fair and honorable trans
action; in its form it was without q flaw
The locators took no more than they hat
a right to take. and neither the defen
dant nor the public is concerned to in
quire upon what considerations they con
veyed it to the plaintiff.
conclude therefore that the right o
the plaintiff was complete, at the date o
the commencement Of this action, to al
that part Of the Raymond & Ely veir
covered by the Lightner location, ant
also to those portions embraced in th'
old Panaca locations of Hamblin, Pulsi
fer, Sherwood and vandermark; that il
to say, to all the ground sued for, ant
all the ground claimed by the defendan
in its answer, except about one hundred
and thirty feet on the west end Of tn
Kentucky claim.
The plaintiff is therefore entitled t.
haye judgment Of restitution of tn
ground described in the complaint, will
$4,000 damages on account Of ore ex
tracted and removed by the defendant
and for its costs Of suit. Also to deere
perpetually enjoining the defendant, q
prayed for. s1s l1lk f0lg
| II is ordered that judgment and deere
be entered accordingly. H
| w. H. BEATTY. District Judge.
| Hamilton, Dec. l, 1873. ysrtrvr
|