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

DecNuse ne nad hopes OF adjusting the COLI
troversy in some way with the Richmond
Company, and gave good reasons for his
hopes. Other testimony than that OF Rose
on this point was also introduced. Plaintiff
also introduced testimony tending to show
that the northeast corner stake Of the Tip
Top had once stood some twelve feet fur
Their east than where it now stands, and
had remained in that position for several
years.
This embraced all the testimony Of
plaintiff in rebuttal which it is necessary
to notice in order to fully determine this
case.
The defendant then introduced some tes-
timony tending to establish that Rose had
actually intended to and did waive his pro-
test and adverse claim. A good deal of
testimony other than l have noticed was Of
fered and admitted in evidence, but which
bears too remotely upon the issues in this
cause to merit reference.
From the testimony above referred to,
and other that was received in evidence, /
find as facts:
Those which were hereinbefore men
toned in regard to the Uncle Sam claim
respecting the manner Of its location, pos
session within established boundaries and
as to necessary work to date.
That the Richmond Company obtained
from the Government a patent to the Tip
Top location on the Both day Of April, 1874;
that this patent ia admitted to be in all re-
spects regular and valid; that a surveyor Of
the Richmond Company, in May. 1877,
placed the northeast corner stake Of said
patented claim some ten or twelve feet
further south n east than where the same
is now admitted to stand; that such stake
remained in that position until the year
1879, when it was removed to its present
position.
There was no testimony as to where this
stake stood in 1874, when the patent was
issued, nor as to where it was placed by
the mineral surveyor who made the orig
inal survey prior to application for the
patent, and it is not denied but that the
stake is now some ten or eleven feet fur
Their south and east than the calls in the
patent would require it to be. Whether
that stake was placed at the place at which
it was seen in 1877 through mistake Of the
surveyor or otherwise does not appear, and
because it stood beside a peculiar square
rock (Which latter is a permanent OBJ
ject") but which is not mentioned in the
calls OF the patent, can make no difference.
Unless the positions of stakes prior to or
Immediately after the issuance of a patent
can be individually established, it would
be too hazardous for courts to permit such
positions to control the course and calls in
q Government patent after three years had
elapsed since its issue, because a p~atentee
might be interested in moving them in q
certain direction; for interested parties,
opposed to a patentee, might have similar
inducements to move them in an opposite
direction, where they might remain for
years; and in case OF the patentee's absence
or without his knowledge, he being in the
vicinity, it would result. in some in
stances, in great loss or hardship. Even
were such stakes improperly placed, with
q p%atentee's knowledge, and through his
or his agents mistake, it would be
wrong in q court to say, ''You cannot be
relieved from the effects OF your mistake"
1t would be otherwise did the calls in the
patent refer to what the authorities de-
nominate permanent Objects" or even to
stakes proven to have been placed at or
about the time of application for or issu-
ance Of patent. Did the calls in the Tip
Top patent refer to that peculiar square
rock, it would undoubtedly control that
corner; but not 80 under the testimony in.
and circumstances of, this case, and | shall
therefore hold that the Richmond Com
pany is bound only by the present position
of that stake, which | conclude to be at
point &c" on the line running from "a"
to &C." as shown in plaintiffs exhibit III.
The determination Of this fact, however, is
not necessary to the decision in this case,
rs will appear subsequently herein, and /
only determine it in order that the case
may be fairly presented on appeal in case
it should be concluded by the Supreme
Conrt that / am wrong as to the grounds
upon which / finally decide.
/ find from the ~exemplifed copy Of the
proceedings connected with the application
Of the Richmond Company for a patent to
the st. George that the application was
made in the proper Land Office August l,
1873; that in due time plaintiffs protested
and filed an adverse claim against said ap-
plication; that they brought suit in the
proper Court within the required time, and
have prosecuted said action with due dill
gence, under the circumstances proven on
the trial.
On the trial the Richmond Company
strenuously commended that because Rose
and some others of the adverse claimants
had not paid the five dollars required by
law as a docket tax, that no action had
been commenced in the thirty days requir-
ed by the law Of Congress of 1872, and that
up TO date no action would be deemed as
having been commenced. The statutes of
this State provide that unless such fee be
paid no action shall be deemed to have
been commenced, and il defendants posi-
ton on this point il correct, it should have
made Affirmative proof in the Land Office
Of u fact before demanding its patent,
and in this action it can only make such a
plea available by pleading the same in
abatement. No proof was made in the
Land OfiQa that No aaftnp had haon anfn.
menced, and in the absence of such affirm
alive proof, and notice of the same, and
the Registers decision thereon, | think he
1.-THE Register) had no jurisdiction to pro-
coed in the matter or to issue a patent. In
short, / I'm clearly OF opinion that the st.
George patent was issued without authori-
ty of law, while the land embraced in the
application was reserved from sale as eff
fectually as though there had been an Act
OF Congress excluding it, and that there
fore it is absolutely void.
In this connection 1t is but due to coun-
sci to notice that some positions taken in
the closing argument, wherein it was con-
tended that the st. George patent was void
because it was issued pending a protest
against its issuance, and while this action
remained undetermined in this Court; that
all acts Of the officers Of the Land Depart
ment, after the filing of the protest, were
without authority and void. In these
views l have already concurred. While
contending that the patent Vas void, aud
the action of the Land Officer equally so.
the eminent counsel claimed that it only
lies in the mouth Of the plaintiffs in this
case TO demand a Judgment so declaring
il. In this I cannot agree, for the reason
that it is equally the province of the Gov
eminent to have it so declared, and per-
haps of any citizen in an action ex rel.
The same counsel further demanded that
this Court. in this character OF action,
should decree the defendant to be the trus-
tee Of the plaintiffs, holding this st. George
title or a portion thereof for the benefit of
-Is-k.g. T., xba Gr.t x1aAa - .-a1 @,ra&