Tonopah bonanza. [volume] (Butler City [i.e. Butler], Nev.) 1901-1909, 1908-08-22

the property and saw that the dis
covery work had been done. Mr.
Murray is a mining man of over If
teen years experience and it seems al
most incredible to me that he would
have paid his money for a half inter
est in this property unless he was
satisfied that the discovery work had
been performed and that the acts OF
location had been completed.
Considerable testimony was intro
duced in behalf of the defendants
which tend to show that no work
whatever was performed on the Jua-
nita claim, still l can not say that
this testimony is of sufficient proba-
tive value to overcome the direct and
positive testimony introduced in be-
half Of the plaintiffs that the work
was actually done. 1t will be observ-
ed that no witness testified that he
was present when Phipps and Jacobs
were on the ground doing the work,
but the testimony of practically all of
the witnesses called by the defend
ants is to the effect that they were
upon the ground before the plaintiffs
location was made and also after
wards, and that the ground was in
the same condition upon all of their
visits and from this they conclude
that the work had not been done.
Some testimony, however, was intro
duced which tends to show that
Phipps and Jacobs were on the
ground when they claimed they were
doing the work, and there are also
other circumstances which tend to
corroborate plaintiffs witnesses and
to discredit the testimony given in
behalf of the defendants. The evil
dence also shows that the roof of the
tunnel is caving ground and that a
portion of it caved after this dis
covery work was done. 1t is possible,
therefore, that after Phipps and ia
cobs performed the discovery work,
as they testified they did, a part of
the roof of the tunnel may have
caved and partly filled up the tunnel,
and that the defendants witnesses
who visited the ground months after
wards may have seen the tunnel
partly filled up and concluded from
this that no change had been made in
the tunnel and that no work had
been done therein. But, be that as
it may, a number of reputable and
dis-interested witnesses testified that
the work was actually performed,
and this testimony establishes a
prima facie case in favor of the plain
tiffs and the testimony introduced in
behalf of the defendants is not, in
my judgment, sufficient to overcome
it.
In the next place it is conceded
that the plaintiffs were, as between
the parties to the controversy, the
first to make a discovery and the first
to initiate a claim to the ground. The
Juanita claim was located nearly
eighteen months before the defend
ants went upon the premises or as
serted any right thereto. The plain
tiffs, and their predecessors in inter-
est, being the first to make a dis
claim to the ground have a superior
right to all others, unless they for
feited this right by their failure to
comply with the law governing the
location of mining claims. The ques-
tion Of discovery is n of the essen
tial prerequisites to a right to min
ing ground, and the first discoverer is
In all countries and at all times en-
titled to a consideration and reward
that Is not accorded to those who 60
upon the ground afterwards and seek
to profit by his discovery. In consid-
ering the rights of the first d~iscoverer
the supreme court of the United
States, in the recent case of Lawson
VS.. United States Mining company,
207, U. S. 13, says:
Discovery is the all-important fact
upon which title to mines depends.
Discovery in all ages and all coun-
tries has been regarded as comforting
rights or claims to reward. Gamboa,
who represented the general thought
of his age on this subject, was of
the opinion that the discoverer of
mines was even more worthy of re-
ward than the inventor of a useful
art. Hence, in the mining laws of all
civilized countries the great consid-
GRAFTON for granting mines to indi-
viduals is discovery. Reward so be-
slowed says Gamboa, besides being
a proper return for the labor and
anxiety of the discoveries, have the
further effect of stimulating others to
search for veins and mines, on which
the general prosperity of the state de-