Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1881-07-28

The Full Decision as Rendered by
the Court Yesterday.

The SENTINEL OF yesterday morning
contained all Of the material points de-
cided in the above case. As matter of
record and reference we reproduce the de-
cision in full as follows:
In the District Court, Sixth Judicial Dis
trict of the State of Nevada, in and for
Eureka County.
E. II. Rose ct al, plaintiffs, VS.. Richmond
Mining Company of Nevada, defendant.
OPINION AND ORDER UPON TRIAL.
This action was commenced upon the
21st day of October, A. d. 1873. The de-
PENDANT filed its answer November 10th OF
the same year, and upon April 20, 1881,
filed its amended answer.
Upon the complaint filed at the time OF
the commencement Of the action and the
amended answer, the application for in
junction was heard and this trial had.
The Albion Con. Mining Company hay
ing fled a petition of in Intervention on April
20, 1881, in which it claimed a right to in
tervene by reason OF the facts in the petit
ton set forth, viz: That since the COM
mencement Of this action it had purchased
all the right and title OF these plaintiffs,
and therefore succeeded to their interests,
and that now these plaintiffs had no right
or interest in this action. The defendant
moved to strike out the petition, which
motion was granted, with leave to the Al
bion Company to be substituted, as it had
shown no ground to intervene, but was
entitled to the option OF permitting the
action to proceed in the name of the origi-
nal plaintiffs or to be substituted. 1t
chose to conduct the action In tho name
Of the original parties.
The complaint set forth: First, that
the defendant 10 a corporation. Second,
that "plaintifs are, and ever since Jan.
20, 1872, have been the owners of, seized
aud possessed Of. the Uncle Sam mining
claim. ledge, lode and deposit of mineral
bearing ore, rock and earth" Third, that
defendant unjustly, and adversely to
plaintiffs, claims an estate in, for and to
said premises" Fourth, that the defend
ant has filed in the United States Lane
Office an application for a patent thereto,
under the name Of the st. George lodge
and mine.
The answer admits the corporation, and
that the application alleged had been made
in the Land Office. 1t denies that the
plaintiffs were ever the owners of, seized
or in possession Of the premises or any part
thereof. 1t alleges that the defendant is
the owner, in possession, and entitled to
the possession OF the premises; that since
the commencement of this action it has
acquired title by patents from the Gov
eminent OF the United States to all that
portion Of said mining~ground in contro-
versy," and claims ownership, possession
and right Of possession under said patents.
1t was established by the evidence ON be-
half Of plaintiff on this trial that the
Uncle Sam was located Jan. IA, 1872, by
Rose md two associates. The claim was
made for 800 feet on the ledge by 200 feet
wide. The act Of Congress OF 1866 (un-
der which Rose located) gave to each To-
Gator 200 feet on the vein, and an additional
200 feet for discovery"
Rose and his associates did the required
amount Of work on this claim so long as
they owned it, and since their title has
been owned by the Albion Company it has
expended upon the claim several hundred
dollars each year in excess Of the amount
required by law up to date; and so far as
work, occupation and making Of boundar-
les is concerned, plaintiffs have performed
all those things as required by the act OF
Congress of May 10, 1872, relative to min
ing claims. 1t was admitted throughout
the trial that the Uncle Sam and all other
locations owned by either party, and which
were put in controversy in this proceed
ing, were a part Of and upon the same great
vein or lode. The Richmond Company
therefore claimed that as il had not only
been discovered, but that many prior loca-
tions had been made upon this great lode
prior to the location of the Unoie Sam, that
Rose had no right to take a discovery
claim, and further, in support of its posi-
ton on this point, established that Phillips
and Haskell had located the identical
ground now known as the Uncle Sam in
1871, and had done considerable work
thereon at or soon after their location.
Phillips, who personally located it in 1871,
testified that Rose first pointed out the
ground to him, and that he (Phillips)
made his location at q small hole where
Rose had done work and exposed some
galena ore. Phillips and Haskell, how
ever, evidently abandoned their claim to
this ground before Rose located the Uncle
Sam. They having abandoned il, it be-
came public domain again as fully as
though they had never appropriated it,
save possibly that an entire stranger might
not % be permitted to take q bonus of 200
feet as a discovery claim, but the case is
different with Rose. for when he located it
had again become public domain, and he
having originally exposed the ledge at that
point, and believing, as he testified he did,
and doubtless as every miner in the dis
trict then did believe, that il had no part
or parcel with any other ledge, why should
he not locate and claim his discovery Ger
tainly there was no bad faith indicated,
under the circumstances in his doing SO.
Much evil would ensue should the court
decide that locations wherein a discovery
claim had been taken under the circum-
stances of this case were absolutely void.
| think the rule in such instances should
be that the claim is only bad pro tanto,
and so long as the mistaken locator re-
manned in possession no one could legally
4
therefore follows from these views that the
Uncle Sam location was not old for the
mistake of Rose in taking 200 feet for dis
covery.
Having established the foregoing facts
concerning the Uncle Sam, the plaintiffs
rested their case, when the defendants, to
maintain the issues on its part, offered in
evidence United States patents to the Tip
Top, St. George and Victoria claims.
To the admission of the Victoria, and
especially to the st. George patent, the
plaintiffs objected, on the ground that the
St. George patent was void. for having
been issued without authority Of law, while
a contest was pending in the United States
Land Office concerning the ground en-
braced therein. and to the Victoria, be-
cause it had been acquired since the COM
mencement of this action. The objection
to the st. George was oserruled and the
patent admitted as evidence, because, so
FAR as the evidence up to that point showed,
there was nothing before the Court estab-
fishing that any valid protest had been
made to the issuance Of the patent and
the Victoria patent was also admitted and
plaintiffs objection overruled, because any
defendant has q perfect right to acquire as
many new titles as he can after a suit is
commenced agaist him and TO- put them
all in evidence, and for the further reason