Elk City mining news. (Elk City, Idaho) 1903-1913, 1904-07-02
Important Legal Decisions.
Continued from first page.

lOCdCOrS, unIll dICer Jne location ana
recording of the Last Chance and Emma
lode claims. The stipulation is signed
by counsel for the respective parties in
this suit. | offer it as evidence in order
that it may be here in the record.
'Mr. Lindley We will reserve a
formal objection to the materiality and
admissibility of it.
"(Overruled. Exception"
We do not think it necessary to de-
eide whether stipulation to the effect
that certain witness would, if present,
testify in contradiction of one or more
of the facts already agreed to by coun-
sci; could be properly held to modify
such prior stipulation, for the reason
that upon the facts expressly conceded
found, and in no wise contested, the
Last Chance was located after the
Bunker Hill, and while the latter was a
valid, subsisting claim. At the time of
the location of the Last Chance claim
the time prescribed by the Idaho stat
ute within which the Bunker Hill loca-
cation should be recorded, had not
expired. The Last Chance locators had
actual notice of the Bunker Hill loca-
ton, had read the description of it, and
the locator of the Bunker Hill was in
actual possession of that claim and
actually working it. No part of the
claim, therefore, whether above or under
ground, was then open to location by
any other person. Belk. v. Meagher,
104 U. S. 279; Book v. Justice Mining
Co., So Fed. LOG; Meydenbauer v. Ste
vens, 78 Fed. 7s7; Jordon V. Duke, SO
Pac. 1877.
1t is conceded by the counsel for the
appellants that the locators of the Last
Change could not have then entered
upon the surface of the Bunker Hill
claim and acquired any right as against
it; but he insists that it is different in
respect to such portions of its veins or
lodes as lie outside of it's vertical boun-
diaries of that claim. The mistake of
the learned counsel is in supposing, as
he does through his argument, that
there is a radical difference in the ma
ture of the right by which the locator
of valid lode claim holds the veins or
lodes embraced by the surface lines ex-
tended vertically downward, and such
of the veins or lodes belonging to the
claim as extend in their downward
course outside of the side lines; and that
as to the latter, adverse rights may be
acquired which could not be acquired in
respect to the former. AS has been al
ready said herein, there. is no such dis
tinction. The mining right is an inte-
grail one, and is precisely the same to
all that belongs to the location-its sur
face and all veins or lodes apexing
within it, and all not apexing elsewhere,
found within the surface lines extend
ing vertically downward, as well as the
extralateral right defined by sec. 1922
of the revised statutes of the United
States. The st. Louis Mining and Mil
ling Co., of Montana. ct al. v. the Mon
tana Mining company Limited, u. S.
Supreme Court, decided May 2, 1904.
That the failure of the locator of the
Bunker Hill claim to record his notice of
location within the time prescribed by
The Idaho statute did not work a for
feiture of the claim, there being no such
penalty affixed by the statute, is well
settled. Jupiter Mining Co v. Bodie
Con. Min. Co., II Fed. 666; Bell v. Bed
'ock 7. & M. Co., So Cal. PA; McGar-
'ity V. Byington, II Cal. 426; johnson
It al. V, Mclaughlin ct al, 4 Pac. 100;
V. McWhirter, IS Pac. 1896;
Rush v. Frence, % Pac. 816. Besides.
ne issuance by the government of its
PATENTS for the claim is conclusive evil
lence Of the suficiency of the steps
aiken by the complainant. Davis v.
139 U. S., 5O7; United States
?. Idaho & S. M. Co., 128 U. S. 673;
dontana Cent. Ry. Co. V. biigeon, GO
Fed. 81.
Whether the surface lines of the Bun
.er Hill claim were so laid as to entitle
is owners to any extralateral rights at
IL; whether, if it exists, it should be
ounded by vertical planes drawn down
yard through what were originally To-
ated as the end lines of the claim or
trough those originally located as it's
lde lines; and whether the extralateral
ight claimed by the complainant and
warded it by the court below is to per-
nit the complainant to follow the vein
long its length and not on it's down.