The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-10-15

as uiSciOSeu by the decision of the
supreme court of the United States in
the FiagstaH case COS United States
4oSl, IA argentine VS.. the Terrible Q22
versmith case d52 United States 9e91
IN some instances the course of the
vein must be ascertained to determine
the end-lines
WHAT VEIN DETERMINES THE
END-LINES?
In this case that question arises with
the additional one-what vein deter
mines the end-lines, and thereby-fixes
the measure of rights outside the
lateral lines2
1t is claimed by the Geyser party
that the gold bearing vein was un-
known when the Marion was located
and patented, and remained undis-
covered for many years thereafter; and
that the Marion claim, when located in
1871, was located upon the silver vein
before referred to; and that if the
course of the vein located upon has
any part in determining extra-terri-
torial rights. the silver vein, and not
the after-discovered gold vein. now the
bone of contention, is the one that
must govern their territorial rights
No court has been called upon to
decide this question whether the one
vein upon which the location is made
measures rights upon veins thereafter
discovered in the same location, and
being a first impression and of great
Importance, it deserves most careful
consideration The law of 1866. al
ready quoted, clearly states that no
patent shall issue for more than one
vein or lode which shall be expressed in
the patent, Oath stat at L. chap. 262
?. 252). Unquestionably then the
Marion was located upon some par
ticular veins which was afterwards
described in the patent as the Marion
vein.''
The Marion denies that the silver
VEN was the one located upon, and
mucn time was spent in presenting
parol testimony upon both sides in an
enoeavor TO throw light upon the
question where the original location
was actually made. This testimony
was received under objection. the
court intimating at the time a decided
opinion that the evidence was incom-
petent The more it is considered. the
stronger becomes that opinion. To per-
nit parol evidence depending wholly
upon the memories of men possessed
by the frailties which always beset
lmperfecr human beings. and about
matters which happened a quarter of
a century ago, to sway the determine
ton of great interests, is inconsistent
With any proper idea as to the best
method of ascertaining the truth of a
controversy. and for the purpose here
proffered is repugnant to legal rules.
And this is a very different matter
from ascertaining by parol evidence
another kind of facts necessary to be
proven in every case where extra-ter-
rltorial rights are alleged.
IL is always necessary to determine
by parol evidence the apex and course
of vein; but a vein or lode is in it's
character like a mountain or a river,
a permanent natural object, always to
a greater or less extent accessible and
susceptible to observation: and like
the eternal hills marks its place for
ever; any one may go and see it and
mistakes and misrepresentation may
be readily corrected. Because parol
evidence is necessary and proper to
prove such matters as these, it does
not follow that it would be safe. wise
or just, or consistent with correct
principles to permit such evidence to
determine the existence of facts that
are in their nature fleeing and
evanescent. All the parol evidence in
troduced for that purpose has therefore
been excluded from consideration. The
i Codll- AAOWCNSI, HMQQlu IlOI lldYC D6tA
different had it been considered.
SWAYED BY INTEREST.
Whatever view is taken of the criti-
cisms made on both sides, that the evil
dence of the other waA not free from
the suspicion of having been swayed
by interest or prejudice, it cannot all
be disposed of in that way. The court
is not asked to believe that Captain
low e1,., 10 n
garded, it being above suspicion, but
it is urged that his age has probably
affected his memory.
The court did not detect anything
to indicate that such was the case.
Though he is So years old, he
appears vigorous both mentally and
physically Other witnesses who testi-
fed about this phase of the case, were
equally entitled to credit. The court
was able to find a reasonable theory
upon which to reconcile the conflict at
this point, but the evidence being ex-
Guided, requires no further attention.
The exact location Of the vein itself,
or the kind of ore it carried, is not
disclosed in the patent, but the record
upon which the patent issued shows
that it was silver bearing vein; and
as the evidence shows that the silver
bearing vein now to be seen within the
Marion location, does not carry gold,
nor does the gold-bearing vein carry
silver, the conclusion seems inevitable
that the location was made upon the
silver-bearing vein, which the evidence
now discioses, traverses the heel of
the boot entering from the Sparrow
Hawk between post II and post L, and
leaving the claim between post 2 and
post 3. Those lines are parallel but it
would be ridiculous to consider them
end-lines.
Mr. Justice Field, who wrote the
opinion in the Elgin case before cited,
points out, that while paralleslism OF
end-lines is essential to lateral rights,
yet the mere fact that two lines are
parallel, does not make them end
lines. He says:
THE exterior lines of the Stone
claim form a curved figure somewhat
in the shape of a horseshoe, and its
end-lines are not and cannot be made
parallel. What are marked on the
plat as end-lines are not such. The
one between numbers 5 and is a side
line. The draughtsman or surveyor
seems to have hit upon two parallel
lines of his nine-sided figure, and ap-
parently for no other reason than
their parallehsm called them end
lines"
Iron Co. VS.. Elgin Co. lis U. S. 2O8.
In view of the evidence that the sill
yer vein, Immediately easterly of the
point where it leaves the Marion.
enters the Sparrow Hawk claim adj
jacent, and farther on continues into
the Last Chance, and that about
twenty-five years ago that silver vein
was extensively worked by the same
association of persons who owned the
Sparrow Hawk, the Last Chance and
the Marion, before any of them were
patented, and at whose instance all
were patented, it is a very plausible
conclusion that these people, already
owning what seemed TO be the valuable
portion of the silver vein in the Spar
row Hawk and Last Chance extended
the Marion when they dre1sr 1ha din