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

Judge Richie yesterday delivered his
Judgment and opinion in the very i'm
portant mining suit of Matthew T..
Osborn, the Geyser Mining company
ct al. against the Marion Gold Mining
company, which was tried a couple of
months ago and submitted. His honor
found the issues for the plaintiff and
ordered that the restraining orders
against both plaintiffs and defendant
remain in force until further order of
the court.
Senator Brown, Judges Hardness and
Howat and Attorney H. Z. Booth rep
resented the Geyser company, and
Messrs. w. II. Dickson. Ellis & Ellis
and NJ M. Kaighn appeared for the
Marion company at the trial
The opinion, which is quite exhaust
i've, is as follows:
The plainIiffs in this case sued the
defendant for trespass for entering
upon their property and carrying away
ores, and TO enJoin further threatened
trespasses. The defendants answer.
apart from the portion relating TO the
equitable issues involved, was a plea
by way of confession and avoidance,
justifying the taking of the ores in
question by reason of an extra terri
Jorial right under section 1922 Of the
revised statutes of the United States.
At the time of the trial it made no
claim TO the surface area under which
the ores were mined.
The plaintiffs claim is based upon
the patent to the Geyser mining claim,
and other locations not patented, COW
ering the surface down to the northerly
lines of the Marion claim owned by the
defendant under an older patent.
lie -
set up its Xtra-territorial right and
sought To have it quieted against the
plaintiffs. The latter issue was the
one tried, and for convenience and to
avoid continually referring to the
plaintiffs as defendants to the cross
complaint with its tendency to con-
fusion the plaintiffs viii be designated
as the "Geyser company or party, and
the defendant as the Marion COM
pany."
The Marion hill, upon which both
properties are located, is situated in
the Camp Floyd district, in Tooele
county end runs easterly and westerly
as shown on the plat. The Geyser and
Marion claims lie lengthwise easterly
and westerly, the Geyser lying on the
northerly and the Marion on the south
erly side Of the hill. The tract between
belongs TO the Geyser.
A1-LbIA1IONo of The MARlON.
The Marion alleges that a gold bear
ing vein or lode Of rock in place crops
throughout the entire length of the
Marion, as indicated by the line of
dashes. This is substantially undis-
puted by the Geyser, except as to a
portion easterly from post of the Ma
Iion, where the outcrop is claimed by
the Geyser TO extend as indicated by
the dotted lines.
The Marion alleges that this outcrop
is the apex Of the vein. This vein or
zone extends northerly through the
hill, slightly dipping or inclining north
easterly or easterly, generally speak
ing, at an angle of about Is degrees
from the horizon, though varied in
places by faulting assures and other
irregularities. 1t appears on the other
side of the Hill generally at slightly
lower attitudes The vein varies from
......... to forty feet in thickness.
The evidence shows that silver
bearing vein, situated at a distance of
about 100 feet genlogically from the
gold vein, extends easterly and wester-
~ through the portion of the Marion
termed the boot heel" and through
the Sparrow Hawk claim er sterly from
the point where it leaves the Marion.
The statute Under which this con-
troversy arises reads:
LOCATIONS
heretofore made, or which shall here
after be made, on any mineral vein,
lode Of ledge. situated on the public
domain, their heirs and assigns. where
no adverse claim exists on the 10th day
Of May, 1872, so long as they comply
with the laws of the United States
and with state, territorial and local
regulations not in conflict with the
laws of the United States governing
their possessery title, shall have the
exclusive right of possession and en-
joyment of all the surface included
within the lines of their locations. and
OF all veins, lodes and lodges through
out their entire depth, the top or apex
OF which lies inside of such surface
lines extended downward vertically, al
though such veins, lodes or lodges may
so far depart from a perpendicular in
their course downward as 10 extend
outside the vertical side-lines of such
surface-locations. But their right of
possession to such outside parts of such
veins or lodges shall be confined to
such portions thereof as lie between
vertical planes drawn downward as
above described, through the end-iines
OF their locations, so continued in their
own direction that such planes will
intersect such exterior parts of such
veins Of ledges. And nothing in this
section shall authorize the locator or
possessor of vein or lode which ex-
tends in its downward course beyond
the vertical lines of his claim. to enter
upon the surface of a claim owned or
possessed by another" Grew. Stat. U.
S. 1922
A SOUND PROPOSITION.
The proposition with which one of
the counsel Judge Harkness) began
his argument appears to be sound,
that the patent of mining claim such
as the Marion patent is a common law
grant, with the usual presumption Incl |
dent TO such grant, among others, that
the owner of the surface taxes all be-
meath ii. and that, where a right is
the revised statutes, the presumption
being against 1t, it must clearly appear /
&c exist.
The rights provided for by this sec
ton have been yariously called Tat !
eral," -'extra-lateral' and "extra-terri- i
torialu rights. The last term is the one
used in the latest deliverance of the
supreme court Of the United States
upon this subject. and seems. all things /
rather more accurate and !
comprehensive than any other (See /
Las1 Chance vs.. Tyler. Isl Il. S. 6S7.l
There was some discussion as to the 1
rule of proof which should prevail in I
establishing extra territorial rights. 1t |
would seem that the correct rule is the +
one which obtains in all civil cases that
the necessary facts need be established /
by 3 prepon6erance of the evidence I
only. But all the necessary facts 7
must be proven, and when thus estab-
fished, must clearly show the existence
lof the nece~s airy statutory conditions
to give brit to the right claimed.
This claim was located under the law
of 1866. In that law we find this nrn-