The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-11-30

entire surface ground included
within the boundaries of the claim
as described in the patent, save
that part heretofore as is alleged
conveyed to the Wasatch Mining
Company, and known in this action
as the Walker and Walker EXten-
sion Mining Claim. This possession
and occupancy must include aud
cover, all veins, lodes or lodges, the
tops or apex of which are found
within the side lines of the claim.
In giving construction to the law
governing actions Of trespasS or
suits in ejectment, attention must
be paid to the nature and character
of the estate. It viii not do, in my
opinion, to apply to mining prop
erty, and particularly to such kinds
of such property where the thing OF
value is a vein, lode or ledge, dip
ping into the surface and pursuing
a doward course Hereunder, out OF
sight, in an unknown direction, the
same strict rules in reference tG
down possession, as are applied to
the ordinary case of custer; though
even in that case / think the law is
well settled that very strong acts of
xcluSive possession such as build
ings, enclosing or cutivating, and
that for long time and openly and
VIGOROUSLY, ARE necessary III order to
constitute an actual custer OF the
true owner, who has no notice OF
such acts.
1t is true that an custer may be
made in mining claim, but such
custer can only be where the acts
constituting it are such as would be
open and notorious and Of long
| time, such as would warrant the
court to charge the jury and the
jury to find that the owner had been
disseiZed. A mere sinking down
through an adjacent mining claim
and striking on its dip vein the
apex of which is upon an adjoining
claim, the whole Of which claim is
in the actual occupancy and posses
sion of its owner, and the extract
ing of ores therefrOm, will not IN
my opinion sustain an custer. The
owner or the defendants in this case
had the right, and without question
on the part Of the plaintiffs herein
to sink their shaft on their own
claim, and no act of it in that di-
rection could be construed by the
plaintiffs as being inimical to their
rights. The surface ground of its
claim belonged to it, and so far as
it is concerned any and all acts OF
ownership could be exercised in re-
gard thereto. The evidence in the
case shows that the defendant die
sink shaft through it's OWL
surface ground, ard did strike OF
came in contact with what is
claimed by the plaintiffs herein, the
vein on its dip whose apex is on the
plaintiffs claim. I am not able tC
reconcile my mind in the belief thai
their act amounts to an custer.
The testimony of the three wit
nesseS referred to are nothing which
changes my mind. 1t is unnecessary
to detail what their testimony is.
bear what I have to say mainly
upon the ground that the proofs dc
not show an custer, and that the
plaintiffs, if they were in possession
of the vein on its apex on their OU I
ground, must be held as being il
| possession of it down the uneXplOret
course. A hidden taking of it by
another, under ground, and only fol
such short space of time as the
| proofs in this case show, Cannet
operate as an custer. There i:
nothing open or notorious about it
and these are necessary ingredient:
30 make all custer.
Reference has been made to the
Iay4, of the organization of the de-
teudant company. No proof ha;
'atn offered on that point. The an
,Wer of the defendant alleges that
Yrr since the 10th day of March The
efendant company was an inc0r
Oration. The complaint alleges thai
an that day the acts of trespaSS com
1iained of were committed. Some
nroof tend to show that the build
lng OF the bulkhead was on or priOl
to that date. So far as the acts O.
treSpasS are concerned, the plaintiff;
cannot, of course, recover against
| defendant, for any acts of treSpaSs
it did not commit. True, in estab
fishing by proof the acts of trespas:
they are not held to the exact date
alleged in the complaint. Motion
1 for r1OO-cI1it iC OUprrulp0