Tonopah bonanza. [volume] (Butler City [i.e. Butler], Nev.) 1901-1909, 1908-08-22
RENDERS
IMPORTANT
DECISION
JUDGE O'BRIEN DECIDES CASE
OF MURRAY VERSUS
OSBORN.

Judge O'Brien yesterday afternoon
handed down an opinion in the case
of Murray versus Osborn. The case
is one of unusual interest and the de-
cision will be widely read:
This action was brought to recover
possession of and to enjoin the de-
PENDANTS from trespassing upon the
Juanity and Juanita No. / mining
claims, situate. In the Old Spanish
belt in this county and state.
The plaintiffs allege in their COM
plant that ever since May 5, 1906,
they have been the owners of and in
the possession of this ground, and
that on or about November Is, 1907,
the defendants wrongfully entered
upon the same and commenced min
ing thereon and extracting and re-
moving therefrom quantities of gold
and silver bearing quartz and that
they extracted pres therefrom of the
value of $4,000. And the plaintiffs
pray that they be adjudged to be the
wner and entitled to the possession
of said premises and that the defend
ants be enjoined and restrained from
extracting or removing any of the
minerals therefrom, and for damages
in the sum of $4,000, and for general
relief.
The defendants, by their answer,
deny all of the allegations of the COM
plant and afirmatively allege that on
or about September 5, 1907, they To-
Gated the premises in controversy un-
der the name of the Combination
mining claim. and allege that they en-
tered into possession thereof under
and by virtue of this location. They
also allege that whatever rights the
plaintiffs may have had to the ground
were lost and forfeited through their
failure to mark the boundaries and
to perform the requisite amount of
discovery work in accordance with
the statute in that behalf.
Practically all of the testimony was
directed to the failure of the plain
tifs to perform the discovery work
upon the Juanita claim and there
seems to be no doubt but that all of
the acts of location were performed
upon the Juanita No. l mining claim.
1t will be unnecessary. therefore, to
consider in detail the suficiency of
the acts of location upon the Juanita
No. l mining claim, and | will there
fore direct my observations entirely
to the Juanita claim. The evidence
shows without conflict that an old
tunnel was run upon the Juanita
claim about forty years ago, but the
evidence does not disclose by whom
this work was done or whether the
parties who did it acquired any right
or title to the ground or not. A
number of witnesses were called by
the plaintiffs who testified positively
that the plaintiffs performed the nee
essary amount Of discovery work
upon the Juanita claim, and that this
work consisted of cleaning out, for a
distance of about fifteen feet, the ap-
proach to the old tunnel, and of
cleaning out the old tunnel for a dis
lance of about thirty feet, and also of
driving the tunnel ahead, that is to
say, extending the old tunnel a dis
lance of five or six feet. On the other
hand, many witnesses we're called on
behalf of the defendants and testified
with equal ~positiveness that they had
visited the ground prior to and subse-
quent to the location of the Juanita
claim and that this work had not
been done. 1t is perfectly obvious
that some of these witnesses must be
mistaken, to say the least, because
the testimony given by the witnesses
on n side, can not, upon any pos-
sible theory of reasoning, be recon
ciled with that given by the witnesses
for the other side. 1t is impossible
for the court to determine which of
the witnesses testified falsely, because
there is no way of looking into the
mind of a witness to ascertain
whether or not he is telling the truth
or to e what the secret workings OF
that mind are. There is, therefore
nc infiexible rule by which the court
a be guided in determining the
weight to be given to the testimony OF
any witness or set of witnesses, and
each case must, of necessity, be de.
termined upon its W peculiar facts
There are, however, in the present
case many concomitant clrcum.
stances which appeal to the court and
which assist it, in some degree, in
reaching a conclusion.
In the first place, several witnesses
testified that Tyndal Phipps and f
Jacobs located the Juanita claim OF
May s, 1906, and within the time re