Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1881-05-07

each way with q surface width OF 200 feet.
The st. George claim was located in 1872,
subsequent to the Uncle Sam, and occa-
sions the material conflict in the case. The
st. George Company applied for q patent,
to which application the Uncle Sam Com
pany protested. 1t is urged that the pro-
test filed by the Uncle San owners is ia
tally defective. I have carefully examined
the objections made TO the protest, and
have been unable to find any material
omission or departure from the require
ments Of law, which would vitiate it. The
affidavit Of the claimants, accompanied by
the diagram Of the ground, sufficiently
manifested the nature and extent Of con-
fict. / am convinced that the protest, in
all essential particulars, substantially con-
form to the requirements of law, and ia
perfectly available for the purposes in
tended. Rose ct al, the protestants, in
Oct. 1873, commenced the action above
entitled, Rose ct al. vs.. Richmond Com
pany, averring title to the Uncle Sam
ground. Issue was Joined by the defendants
in the case, pleading the St. George loca-
ton. The case was placed once upon the
trial calendar and continued at the request
Of the Richmond Company. 1t was proven
that some time in the Spring Of 1874 Mr..
Corrigan, President Of the Richmond Com
pany, while upon . visit to Eureka, repre-
sented to Rose land Rose to his attorneys)
that the Richmond Company did not de-
sire any litigation with him in regard to
the Uncle Sam mining claim, that being
the prior one, q tacit understanding was
arrived at, whereby the Richmond Com
pany would not interfere with the IN
Gle Sam ground, and litigation between
them should cease. The case was not,
therefore, again placed upon the calendar ;
it remained pending, but was permitted to
repose without prosecution. About Oct,
1876. the Richmond Company procured
from the County Clerk of Eureka County
. certificate, to the effect that the case had
not been placed upon the calendar for trial
for several terms Of Court, and fled this
with the Receiver and Register, who
thereupon recommended that q patent
issue to the Richmond Company.
for the st. George mine. Upon this the
Commissioner Of the Land Department
decided that the case had not been prose-
cuted with diligence, as the Act Of Con.
gress requires, and issued the st. George
patent May Z, 1877. The important ques-
ton presented is, whether the Albion Con.
Company can assail this patent in this
whether a direct proceeding must be re-
sorted to to cancel the patent. The action
Of the Richmond Company vs.. the Albion
Con. Company is ejectment to recover this
ground, relying upon the st. George
patent as title. The Albion Company has
fully answered, setting up the claimed
equities, and asking that the Richmond |
company be decreed to hold the st. George |
patent in trust. Under the code Of this |
State, law and equity are blended, and .
defendant may avail himself by answer Of
as many defenses as exist. The Richmond
company is seeking to recover this prop
erty from the Albion by force Of this pat
ent. 1t is the imminent of title, and I
can discover no sufficient reason
upon principle or authority for denying
the defendant the right to assail this pa
tent in this action, for the same causes and
upon the same grounds that it would as
sign originally to o Court of Equity to
obtain the same relief. I cannot conceive OF
any forcible or tangible objection that can
be opposed to this proceeding, the State
Courts having full jurisdiction to afford
equitable relief in all properly presented
cases. The United States Supreme Court
has sanctioned this right and practice in
several cases. I therefore conclude that
the Albion Consolidated Company, being
the equitable owner Of the Uncle Sam
ground covered by the st. George patent,
is not compelled to resort originally to .
Court Of Equity, but that it can obtain
the desired relief from the effects Of the
patent in this action upon the trial OF this
case.
The succeeding question is. did the Com
missioner exceed his power in determining
that the suit OF Rose vs.. Richmond Com
with diligence. Upon this question there
can be no doubt. The Act of Con-
gress provides that when a protest
Is nled to an application for a pat
ent-that the party protesting shall COM
mence an action in the State Court to de-
termine the contest-that thereupon all
proceedings shall be stayed In the Land
Office. Upon the commencement OF this
the Land Department IL Invested OF
all further jurisdiction Of the subject mat
ter until the Court shall have finally de-
termined the controversy between the par
ties. The Court acquires and possesses
the exclusive Jurisdiction Of the entire
matter. The question OF whether the
one for the Court to decide and
not the Commissioner. To hold other
would be to allow the Commits
sioner at all times to deprive the Court Of
it's jurisdiction, and Of determining ques
tions which the Court alone has the right
and power to adjudicate. ! must pronounce
the action OF the Commissioner In deciding
hat the Rose case had not been prosecuted
with diligence. a. wholly without power,
and his act Of issuing the st. George pa
tent while the action was still pending In
Court undetermined, a. unlawful. entirely
jurisdiction or authority, and OF
q wrong which equitable inter-
ference alone can redress.
From the foregoing. while 1t is already
demonstrated that the Albion Company
will be decreed to be the owner OF the dis
puted ground, and Of the Uncle Sam claim.
unaffected by the st. George patent. still
there is no power In the Court upon this
to grant the relief which it Is 20
assuredly entitled to, and I can only ex-
press my convictions as to what must be
the evident result upon the merits. l
not hesitate to dissolve the injunc-
ton against the Albion Company, except
for the reason that the legal title to
the Uncle Sam ground covered by
the st. George patent standing in the
name Of the Richmond company, and ~
the Albion company can only obtain the
relief which it is so eminently entitled to.
from the operation Of this patent by de-
cree at the trial, and until that shall be 40
complished I consider ii my strict duty in
the endeavor and anxiety to do exact JUS
tice and equity, that In the meantime the
rights Of both parties should be scrupu-
lousy protected and the mine preserved, |
which Is represented to be valuable. For
this reason alone / Am persuaded that all
parties should be prohibited from invad-
ing or destroying the substance OF the
property. It is therefore ordered. that the
restraining order heretofore issued In each