The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-11-30
PINYON-CLIMAX.
Decision of Judge Hunter on the
Motion for a N0n-Suit.
The Motion OVsrruled.

IellSe III Gn6 HlnyOn-C1lmaX case, Tor
non-suit:
Lowe es ct al Motion for non
Climax S. NJ. Co. suit
VanZile and Marshal s. Royle for
motion; r. n. Baskin and 2. Will
liams against motion.
OPINION OF JUDGE HUNTER.
This is an action of trespass Q,tare
cl0uS,tn1 tregtt. In such an action
the question is, suppoSing the plain
tiffs have proved good title by
deed, whether they were disseized at
the time of the alleged trespass.
The question of disseiZin, when it is
set up to defeat the poSsessory in
tereSt Of the true owner, and where
the owner does not elect to treat
himself as diSSeiZed for the sake of
his remedy, is one of considerable
difficulty, depending upon technical
law and in regard to which the au-
thorities are in conflict
There is no doubt that, if the
plaintiffs were diSseized, and so con-
tinued at the time of the alleged
trespass, the action would not lie !;
but the question is upon the facts
whether they were so disseiZed.
The complaint alleges that plan
tiff's title is derived through a
United States patent of date Octo-
Der 10, 1878, which granted to them
the exclusive right Of possession of
all the lands included within the eX-
terror boundaries, and of $500 linear
feet of the PinyOn and PinyOn EX-
tension vein lode or deposit through
it's entire depth, although it may
enter the land adjoining, and of all
other ledes, the top or apex Of
which lies inside of said boundaries,
to which no adverse claim existed
on the 10th of May, 1872; and that
said plaintiffs ever since the date of
said patent x have been the
owners as before alleged, and are
and ever since have been in posses
sion of the same, and are and have
been entitled to the full, free and
exclusive enjoyment of all the rights
granted by said patent.
The answer does not deny these
allegations, and therefore insofar
as the pleadings are concerned, it
stands admitted that the plaintiffs
were in the possession of the prem
Uses at the time Of the alleged
trespaSS.
1t is asserted that the further al
legation of the complaint, wherein
it alleges that defendants, with force
and arms, unlawfully and wrong
fully entered into and upon the Said
premises belonging to plaintiffs, and
erected a bulkhead within the side
lines of said premises, and
with an armed force have ever since
held and still hold all The workings
beyond said bulkhead, together with
the proof in the case, particularly
the testimony of Nichols, Knox anu
TreWick, show that the defendants
were in the adverse possession OF
the premises us against the plain
tiffs.
Force must be given to the mature
OF the property or estate. In this
case it is mining property and, -
is well known to the court an IL
parties concerned, the thing whic.
is Of value i'll mining claims is the
vein or lode bearing the ores. This
has been well recognized by tn
United States in the var Gus acts of
| Congress, and in the land office de
partment. By the various acts Of
Congress having relation to mining
claims, locator has the exclusive
right of possession and enjoyment
of all the surface included within
the lines of his location, and of ali
veins, lodeS or lodges throughout
their entire depth, the top or apex
of which lies inside of his surface
lines extended down vertically, al
though such veins, lodes or hedges
may SO far depart from perpendic
ular in their course downward us to
extend outside the vertical side
lines of such surface locations. And
the Supreme Court of the United
States, in the Tarbot case, has
given construction to this. hold
ing that the locator may pur-
sue his vein found within
his side lines on its dip dOWnwards
even though in such downward
COURSE IL IHdy I6dCIl IllIO duu pass
into the ground adjacent thereto.
1t is therefore unquestjOnably the
law that the locator and patentee
is entitled to the right of possession
and of enjoyment of all such veins,
lodes, ETC., and by virtue of his
location and patent becomes to all
intents and purposes the owner of
such vein. In all patents issued by
the general government this right is
recognized and the grant includes,
by express terms, the veins, etc.,
with their dips. The allegations of
the complaint are that the patent
issued to the plaintiffs contains
these words of grant, and as there
is no denial i'll the answer that it
does, it must be taken for granted,
for the purposes of this motion. that
it does. The plaintiffs have there
fore by the means aforesaid, become
the owners CT the surface ground
& the veins, etc., Thereof found with
the right to pursue them on their
dip downwards, and in virtue of
said grant have the exclusive right
of possession and enjoyment
thereof.
- A. ,,1o;.Eao I1oo,. J;cco;1od