The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-12-15

But, 1t is further commended that the
discovery of the West Geyser mining
claim was Within the limits of the
Florence mining claim as the latter
was originally located, and that hence
the West Geyser claim would fall
Osborn, the locator Of both these
claims, testified that when he located
the West Geyser claim he did not know
that its discovery point was within
the limits of the Florence; that from the
point Of the discovery of the West
Geyser he could not see the end stakes
o. the Florence, and was deceived as
to their direction, but that he did know
THAT portion OF the West GeySer was
within the Florence, and that when ne
located the West Geyser he intended Up
adjust that portion between them py
drawing an end Tine for the Florence
from post No. 2 OF the Geyser patent
ed claim and parallel to the southeast
erly end line of the Florence. Ii TINS
had been done the discovery OF the
West Geyser would have beSn excluded
FROM the Florence. But thereafter and
before the location of the Jim Blame
it appears that both of these claims
were surveyed by Surveyor Mackey.
the ground between them adjusted SO
that the discovery of the West Geyser
was excluded from the Florence, ana
the stakes set marking the boundaries
between the two, Rot entirely IN &C
coTdance with GiShorn'S original lnten-
ton, but approximately so. 1t is also
shown that prior to the location of the
Jim Blaine a vein had BEEN discovered
by Osborn in the West Geyser, and in
that portion thereof not included in the
Florence No. 8. Under these circum-
stances, there is no decision to which
my attention has been called that
would hold that the location of the
West Geyser is invalid. If Osborn is
to be believed, when he located the
West Geyser, while not knowing that
the point of discovery was within the
FLORENCE No. 3, he did not intend to
abandon a certain portion Of the F'lor-
ence No. 3, which he knew confiicted
with the West Geyser, and to embrace
that portion within the latter claim.
Being the owner of the Florence No.
3 claim, he had a right to abandon the
whole or any portion thereof at his
pleasure. The mere fact of the second
location would be some evidence OF that
intent to abandon. But even il this we're
not true, the discovery of a. Vein in
that portion of the mining claim not IN
conflict would give the mining claim
life from the date of such discovery.
See Golden Terra Mining Co. vs..
Mahler, Morrison Mining Rep. 800.
And there is NO objection to a lo-
naror moving his stakes so as to en-
brace more ground, not exceeding the
amount limited in the act of Congress,
provided he does it prior to any inter-
Vening rights.
1t is then contended that the descrip-
ton of the West Geyser mining claim
in the record is insufficient in that it
does not refer to amy natural OBJECT
or permanent monument so as to 1den-
no r19 r.
does not require the record of a mill
ing claim, but only provides what the
record should contain in order to have
amy effect. But Congress has delegated
to miners in the mining districts the
right to make rules and regulations
requiring a record and providing for its
effect. In the Camp Fliyd mining dis
trict the miners made rules providing
for a record, but nowhere have pre-
scribed amy forfeiture for failure to
record, nor have they made the record
am integral part of the act of location.
In the case of Jupiter Mining company
VS.. Bodie Mining company, Morrison
Mining Rep. 427 & Sawyer I'D, Judge
Sawyer said about this matter: AS
Stunning the proposition that the miners
have authority to make a regulation
or law by which a mining claim may
be forfeited by failure to record the To-
law, in order to effect a forfeiture, must
provide that such failure to record
shall work forfeiture of the claim. In
the language of the supreme court Of
California the failure of a party to
comply with a. mining rule or regula-
ton cannot work a forfeiture unless the
rule itself so provides. There may be
rules and regulations which do not
provide that a failure to comply with
~. -.r,.- el,O IL Fo,- 81
ure; if so, a failure will not work
Forfeiture
Bell VS.. Bed Rock company. Sc Cal.
219.
Failure to comply with any one of the
mining rules and regulations of dis
trict is not forfeiture Of title. It
would be enough to hold the forfeiture
as the result of noncompliance with
such of them as make noncompliance
a cause of forfeiture.
Mccarthy VS.. Byington, II Cal. AL
AS a general principle of law. for
FIXTURES are not favored. The object
of recording mining claims is to give
notice to others desiring to locate
claims in the vicinity. The COMPRESSION
al law does not require record, but
prescribes what a record shall con-
tain when it is required by the local
rules But the record of the West
Geyser showed that it lay northwest
of the Geyser patented mining claim.
1t also referred to the posts and mon
uments The evidence shows that
these posts were firmly planted in the
ground and were of such a size as to
attract attention. That at the discov-
cry point a stone monument was built
two feet high, several feet in dame
ter, and in the center of it substan--
tial stake placed. These were referred
to in the record and consist in them
selves of sufficient permanent monu-
ments to identify the claim.
Hammer VS.. Mining company, 100 q.
S. 291.
Hansen VS.. Fletcher, 10 Utah 266.
1t also reasonably appears that Jones,
the locator of the Jim Blaine mining
claim, and that Smith, the actual party
in interest prior to the location OF the
Jim Blaine, knew the position of the
west Geyser. No record was neces-
sary. so far as they were concerned,
TO give them notice of what they al
ready knew. Mackey had already been
on the ground, put up new stakes and
marked it, and il Smith is to be be-
Qieved. for several months they were
watching the ground to see whether 1t
would be open to relocation. To them,
at least, the record had impaired the
necessary information.
The contention that veins were not
discovered in Re respective claims
nrio. to location by the defendant was
not dwelt on in the argument, and APP
Years TO be overborne by clear testi.
mony.
consideration of the testimony and the
law of the case, that the findings and
decree should be for the oe1endant IN
each of the cases.