The Nome nugget., 1901-11-30

mained in possession. On, August :, 1900, they, procured Englehurst and other larties who were familiar with the original stakes to assist in survey iIs and locaei,lg .he ground according to the, original stakea The survey was begun at the initial stake of the Carlson claim; the center H Ophir creek was takenas the. center line Of the claim. and stake some 90 or 60 feet east'of the initial stake, which had been set there ia 1898 by JIaenhurtzf for Carlson, was taken as the southeast corner, and from these two from the center of Ophir creek as base line in connection with the original north cen ter stake, which was yet standing, the surveyor located Carlson's claim, No. l5, in the form of a parallelogram. In locating the claim 1100 feet north from the lower initial stake the surveyor discovered, as WAS expected, that the upper center stake was too far north and the upper end stakes were set only 1900 feet up stream'from.the tower ini- tiat stake, which caused the abandon ment of all of the ground between the upper end stakes, as surveyed, and the old upper center stake.
 Claim Fairly Located.
 From all the evidence in the case I am satisfied that on.AuguSt :, 1900, the defendant did cause the Carlson claim ta be fairly located upon the exact spot marked by the stakes heretofore set by Carlson and those whom he had employed to mark the ground. At that time the defendant was in posses sion of the ground, had buildings and a large force of men there at work, and continued te mine thereon up to the time when the plaintiff made his lOca- tion of portion of the same ground.
 The whole difficulty in this case arises from the certificate of location, which reads as follows:
 The Location Notice.
 "PlaceI- mining claim No. l5 above on Ophir creek.
 Notice is hereby given that the un- |dersigned, having complied with the requirements of Chapter 6. Title B of the Revised Statutes of the United States, and the local customs, laws and regulations, has this day located 20 acres of placer mining ground on Ophir creek, Eldorado mining district, North western Alaska, and described as fol- lows: Commencing at the upper or north end of claim No. l4 thence run ming along the bed of the creek 1j0C feet; thence 300 feet east and west from the center stake.
 A. CARLSON. Locator.
 ''Located January 2l. ,lS9S.
 "Recorded May 23, 1898.
 "A. F. MORDAUNT Recorder"
 On January 2S, 1901, the plaintiff. noting the fact that the certificate of location called for the lines of No. 15 to run up the bed of the creek 1900 feet, thence 300 feet east and west from the center stake, determined that because clain No. b had been finally surveyed and staked in the form of paral- ] telegram, instead of following the sinuosities of the bed of Ophir creek, was therefore void as to all the ground more than 300 feet distant from the center of Ophir creek. He thereupon I located that portion of the claim No. l5, then in possession of the defendant, 1 which he thought to be more than BOG 1 feet distant from the center of Ophir creek.
 How. the Dispute~Aross.
 The dispute arises over that. portion of No. 15 lying more chan 300 feet west from the center line of Ophir creek and between and between that line and the west line of the claim. This would include the buildings of the defendant and it's most valuable mine workings. The question for determination by the conrt is whether or not claim No. Is shall be sustained as originally staked by Carlson and those who staked for him, and as surveyed and staked by the defendant in August, 1900.
 A Parallelogram Location.
 It is apparent that there is dis crepancY. between the, courses men, tisned-in the Carlson location notice and the monuments set by Carlson and his employees, and reset after the sur vey by the defendant in August, 1900. r It appears from the evidence. that at the time that the original stakes of the Carlson claim were set the valley of Ophir creek was vet filled with snow and ice of the previous winter, and that 1t. was impossible at that time to de- termine with any accuracy the exact location of the stream. It is in evidence, however, that Carlson sought to. make his location in the form of a paral- telegram directly up SL"0aN aOnS the valley where the claim is now located, seeking to keep to the left of a prominent rock bluff, which he desired to avoid. The monuments set by him at the time and the corner stakes after ward set by his employees, and the monuments set by the defendant upon the survey in August, 1900, all located the claimin accordance with that gen. eral idea. The plaintiff now insists, however, that all those locations are mistaken, because they did not follow the sinuosities of the stream. Such a constructionis not necessary from the language. of the location certificate itself, and especially when it is con sidered that at the time the notice was written it was Impossible for Carlson to know where the creek was located, and that his only idea was to take a paral- telegram up stream across the valley, avoiding the rocky bluff on the,right hand.
 A Sinueus Line Location. Apply the rule of construction de-