Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1882-03-25

pAiu Dy the pialntius. by entering IL upon
the docket he became personally responsible
and assumed the payment Of the fee. and hav-
ing paid 1t, as hs did, the rights Of plaintiff
We're preserved.
The case stands precisely the same as IL
summons had been issued aud the docket fee
paid by plaintiffs on the day the complaint
was hled.
6. The claim of respondent that the
protest does not show "the nature, boun-
daries and extent Of the Uncle Sam location
and lode Is untenable. This objection is one
that should, IL relied upon, have been made in
the Land Office where the protest was fled. II
is questionable whether any objection could
be urged against the protest after the COM
mencement OF the suit, especially in q case
where no plea has been interposed to its sufi-
cheney. But it is apparent that the protest
does sufficiently show "the nature boundaries
and extent of the Uncle Sam claim and lode.
The respondent in its application for q pat
emit to the St. George location and lode claimed
two hundred and fifteen feet in width upon
the surface. The Uncle Sam location claimed
two hundred feet in width upon the surface.
The protest AYERS 'that the so-called st.
George lode or vein, wherefor a patent is ap-
piled, is identical with the Uncle Sam vein
and lode" and refers TO the diagram TO show
'the nature and extent of the conflict" The
protest in its description Of the mature,
boundaries and extent" Of the Uncle Sam To-
cation and lode, is as clear. definite and specific
as was the application presented by respond
ent for a patent TO the st. George. If the pro-
test is defective, so is the application. 1t
would be absurd in the first instance to decide
that the application was sufficient when it
only claimed two hundred and fifteen feet in
width on the surface; and then, in the next
breath, declare that the protest was INSULT
Gent because Ii did not claim the entire width
OF the lode on the surface.
1t is a conceded proposition that there is but
one lode within the limits of the respective
locations. 1t, therefore, necessarily follows,
Notwithstanding the fact that each party only
claimed two hundred feet in width on the sur
face, that whichever party has the better
right TO the possession Of the lode will be en-
titled to its entire width and its entire depth
although it may in its downward course SO far
depart from q perpendicular as to extend out
side the vertical side lines Of the surface To-
cations.
6. 1t Is %strenuously insisted that sp-
pellants cannot maintain this action because,
as respondent argues, the Court found as a
fact that it was in the actual possession Of the
mining ground in controversy at the time the
action was commenced.
This argument is principally based upon the
ground that this action must be governed by
the provisions Of section 256 of the Civil Prac-
tice Act. But it is also claimed that the same
rule must prevail under the provisions OF sec
ton 1914, Notwithstanding the fact it does not
conhne the rights Of plaintiffs, as does section
256, to a party in possession.
We do not think the argument of respondent
could be sustained, even If the facts, as it
claims them to be, that it was the only party
in the possession Of the mining ground in con-
troversy. Golden Fleece v. Cable Con. Co,
70 New. 321). The facts, however, show that
both parties were in possession OF different
portions Of the "big lode" and the character
Of their possession is particularly defined.
Under the statute the party having the bet
ter right to the possession of the "lode" must
prevail and is entitled to maintain this action.
II being admitted, as we have before stated,
and will have occasion again te repeat, that
there is but one lode, and that the Uncle Sam
location upon this lode is prior in point of
time to the st. George, it must follow that, If
the location of the Uncle Sam was valid in its
inception, and its owners have not waived,
lost or abandoned their rights, but have at all
times complied with all the requirements Of
the law, appellants were, and are, the only
parties legally in possession Of the lodei in con
troyersy. and that respondents not entitled to
the "Bine points of law" that are claimed for
it and that often follow from the actual pos
session of property. This must be true. II st
the time the st. George location wss made
there was a prior. existing and valid location
upon this portion Of the lode, and such locA-
ton has ever since been legally maintained,
then the subsequent location Of the st. George
upon this portion of the lode was absolutely
null and void, and respondent did not, and
could not, acquire any rights whatever by vir-
tue OF its locations upon, or its possession of,
this portion of the lode,
A party cannot locate a valid claim to a min
lug tlhlult % OIt tlTthuy lOtdttu anu itEd4ll
possessed by others.
In Belk V. Meagher, recently decided by the
Supreme Court of the United States, Waite, @.
j. in delivering the opinion of the Court, said;
Mining claims are not open to relocation until
the rights of a former locator have come to an
end. A relocator seeks to avail himself of
in the public lands which another has
discovered. This he cannot do until the dis
cOverer has in law abandoned his claim and
left the property open for another to take up.
safThF RIGHT of lDTNtigD mnOD fhe miuprAl lap1a
Of the United States is a privilege granted by
Congress, but IL can only be exercised within
the limits prescribed by the grant.
Locations can only be made where the law
allows IL to be done. ANY attempt to go be-
yond thst will be of no avail. Hence, a reloes-
lion on lands actually covered at the time by
mother valid and subsisting location is void;
and this not only against the prior locator, but
al the world, because the law allows no such
hing to be done. =
"The right to possession comes only from q
valid location; consequently, II there is no
there can be no possession under 1T.
does not necessarily follow from pos
but possession from location"
T. Is the Uncle Sam location invalid
1t Is claimed by respondent that the locators
If the Uncle Sam, by claiming q discovery in
terest, committed a fraud upon the Govern.
nent, and that by reason thereof their entire
lain is illegal and void.
The Act of Congress. under which this loea-
lion was made, provides: "ThAt no location
made shall exceed 200 feet in length
along the vein for each locator, with an addi-
ionel claim for discovery to the discoverer of
he lode" IA U. S, Stat. 252, Sec. A..
Appellants contend that the term "discov-
sry" as used in this act is susceptible of more
han one construction, and that the Courts are
in defining its meaning to be "a dis
,overy made within the limits Of the claim
We are Of opinion that u broad and
liberal Interpretation should be gwen to this
1t must be construed with reference
10 the intent and object that Congress had in
view at the time of its passage, and in deter
mining this question it is proper to consider
he condition of the country and the general
Of the mineral deposits, veins and
.odes.
The object was evidently to encourage the
and development of mining claims.
Il was intende that the adventurous and en-
prospector who explored the min
regions in search of the hidden treasure
should be rewarded by the Government with
1t least IAN additional claim for discovery"
The mineral lodes in many mining districts
we're concealed from public view. They did
not always 'crop out" upon the surface of the
earth. There were no landmarks to definitely
determine the length, width, distance or course
of the lode when discovered. 1t required
much time, money and labor. and in many
Eases protracted and expensive litigation to
settle these disputed questions.
The facts of this case present a fair history
Of the conditions Of many of the mining dis
lTlNbS III III anu III AiNAh hAt -
every question as to any intended fraud upon
the Government. They show that Rose was
the first discoverer of the ore body at the point
Of his location, and that he and his associates
made the location in good faith, honestly be-
lieving that the location was not upon any
lode that had been previously discovered by
others. Subsequent developments established
the fact that they were mistaken, and the own
ers of the Uncle Sam have been legally de-
prived of all that portion of their location on
the easterly side Of the line A O, within the
boundaries Of the Tip Top claim; and it also
appears from the diagram that over 200 feet Of
the Uncle Sam location. on the westerly end,
extends beyond the limestone shale into the
rock. The fact that Phillips made a
prior loeat on to the same ground is not en-.
titled to any consideration, because this loca-
ton was abandoned prior to the location OF the
Uncle sam.
In illustration OF the evil results that would
low from sustaining respondents construc-
lion Of the law, let us suppose that A, in 1870,
d mining claim on the ~easterly end Of
Ruby Hill, including two hundred feet for u
discovery interest; that b, two months there
H-@- - A. -