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

mining decisions.
The first was in the suit for injunc-
ton brought by Frank Andrews ct al.
VS.. John Began, the Began Mining COM
pany ct al His honor granted the in
junction as prayed. The bond was
fixed at $4,000.
The other case was that of the Mar
ion Gold and Silver Mining company
against Matthew 1. Osborn, the Gey-
ser Mining company ct al, in which his
honor found the issues for the defend
ant.
The full text of the opinion in both
cases are given below. The Marian
case is a very far-reaching one, involv-
ing over half million dollars.
Marion vs.. Osborn.
In the district court of the Third
Judicial district, Utah territory.
The Marion Gold and Silver Mining
company ct al. plaintiffs, vs.. Matt 7.
Osborn, defendant; five cases.
Five distinct actions brought by the
plaintiffs predecessor in title against
the defendant, in pursuance of adverse
claims filed against defendants two
applications for a patent. were tried
together.
The defendant applied for a patent
on a consolidated claim embracing two
locations known as the Florence No.
and the West Geyser, and also sep
arately for a patent for the Front No.
8 mining claim, and the plaintiffs pred
ecessor in title, claiming to be the
owner of the Jim Blaine mining claim,
the Maid Marian mining claim, the
Fraction mining claim and the Cole
man mining claim filed adverse claims
to the applications and brought suit
in pursuance of such adverse claims
of f6PCa claims fha linn Rlai0h and the
Maid Marian conflict with the West
GeySer; the Jim Blaine and the F'rac-
ton conflict with the Florence No. 3;
and the Coleman conflicts with the
Front No. 5.
The cases We're tried together and
the questions presented substantially
affect each claim. 1t appears that the
Florence No. mining claim and the
Front No. 8 mining claim were located
by defendant on the 1St day of JAN
uary, 1890; the West Geyser mining
claim ON the 5th day Of June, 1890. OF
. the plaintiffs claims, the Jim Blaine
was claimed to be located on the 18th
day of April, 1892; the Fraction on the
25th day of June, 1892. and the location
thereof amended on the 9Th day Of
August, 1893: the Coleman on the 18th
day of August, 1892, and the Maid Mar
ian on the list day of July, 1893, so that
If the defendants locations were valid,
and if they were not subject to reloca-
ton when the plaintiffs locations were
made the plaintiffs must fail in their
actions. The plaintiffs contend that
defendants locations were invalid. first,
because they were not properly mark
ed on the ground, so that their boufl-
diaries might readily be traced; second,
that no valid discovery of mineral was
made prior TO location; and, third. be-
cause assessment work for the years
1900 NIT dome and thai
such claims were subject to relocation
at the times the plaintiffs located. 1t
is further commended as to the West
Geyser claim, that its discovery pos.lt
was within the limits of the Florence
No. 8 mining claim, and hence that If
the Florence No 8 mining claim was
valid location, the West Geyser must
have been invalid; and further, that
the description of the West Geyser. IN
its notice of location as recorded, does
not refer to "a natural object or per-
maneut monument Sn as to identify the
claim.
Validity of the Location.
These questions will be considered
in their order.
The defendant Osborn testified that
on the evening of the 31st day of De-
eember. 1889. he went on the Geyser
claim. spent the night in q. tunnel
known as the Geysar tunnel, and soon
after u o'clock that night, with Harry
Franklin. posted location notice on
the Front No and the Florence No.
8 mining claims. That then, waiting
until daylight, he proceeded to stake
ont Those claims, and after completing
that posted location notices and sftaked
out two other claims in the vicinity,
going down to the MeTcur boarding
house at about / O'Clock that day; that
the claims were stalSed with subStar-
tial stakes, one placed at each corner,
and a mound of stones and a stake
placed at the discovery; that ne was
thoroughly familiar with the ground,
had owned it under locations, made no
new discovery on the Front No. 3, but
adopted as his discovery a, place where
ore was already exposed, and as TO the
Florence No. 8, made "a slight eXcaFa4-
ton. disclosing the vein. Tbs evil
dence is practically unco:ftrad1cIed, eX-
cept by the evidence of Joseph Smith,
that he failed to see tracks in the snow
leading from the Geyser tunnel in the
direction of the claims located, and the
Imaginable Theory that it is incredible
that the defendant could have per-
formed the acts testified to by MIN
within the time and in the manner teS-
tilted to. owing to the depth of the
snow and the nature of the ground.
The latter argument as said by Judge
IIawley in Book VS.. Justice Mining
company, IS Fed. Rep. III. lis purely
technical and critical, and is not based
upon amy merit whatever. and at most
only tends to show, If it tends to show
anything, that the witness was mis-
taken as to the length of time it took
10 do the work" So far as the evidence
of Mr.. Smith is concerned, he is am
interested witness, being a stockholder
In and Superintendent of the plaintiff
corporation and his demeanor on the
stand while testifying, his minute menu |
orv Of conversations and events hap
renfng long ago. all tend to discredit |
him in amy event, the weight of the
testimony on this is not with plain |
riffs. but with the defendant. But IL
Il were to be assumed that these claims |
,yer-e not properly marked on the |
Ground. when they were attempted TO |
he located, still it appears that on the |
e5th day of April, 1892. S. f. Mackay, |
q limited States deputy mineral sur |
y,ez,or went on the ground at the re- |
ntlest of the defendant Osborn and |
commenced surveying a. group of
claims for Osborn. On the day stated |
he surveyed the GeyseT mining claim, |
which IS not here in controversy. On |
the 2eth day of April, 1892, he COM |
rnenced surveying the West Geyser
mining claim, and on that day re-
7oIaced three stakes on that claim, and
also adopted and marked as the cor
rer of the claim. a post already placed
by him ais a stake of the Geyser claim
That on the 2Tth day of April 1892. he
completed the stalking OF the west