The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1918-03-28

Of conflicting placer claim, against
the Brick company, upon a second APP
plication for patent. it having been
decided by the land department, after
Issuing final receipt upon it's first
application, to which there was no ad-
verse, that the proceedings were fatal
ly defective because of an irregularity
in giving notice. The court, imputing
to such final receipt substantially the
same force as patent, said of it,
1.-THE entry by the local land officers
issuing the final receipt was in the ma
lure of judgment in rem Wright v
that the brick cornpanys original To-
cations were valid, and that every
thing necessary to keep them in force,
including the annual assessment work,
had been done. 1t also adjudieated
that no adverse claim existed, and
that the brick company was entitled
to patent" But in the Lawson case
it is apparently held that where there
is longitudinally bisected apex, such
as the plaintiff contends we have here,
the patent, does not foreclose the
question of priority. Where the
claims are adjacent and there Is no
surface conflict, manifestly neither
party is concluded by the others pat
ent proceedings, for without a surface
conflict there can be no adverse. Such
a case is in principle not unlike one
where there Is an underground union
between two veins apexing in two adj
joining, but not conflicting, claims.
Upon the other hand, inasmuch as an
adverse will lie where there Is sur
face conflict covering portion of the
bisected apex, there is much. force IN
the argument that the patent proceed
ings should be deemed to constitute an
adjudication of the patentee's superior
right to the entire vein; otherwise IT.
would be practically without effect
even as to surface rights, for the en-
tire surface of the conflict area might
be upon the apex But am unable to
distinguish the substantial facts Of the
Lawson case from those here involved,
and accordingly, upon the authority of
that case, it is held that the question
of priority of discovery is not con-
cluded by the defendants patent.
There still remain the question whe-
Their the patent proceedings have any
probative value. / am inclined to the
view that under the circumstances
they should be held to raise rebuff
tai presumption or to furnish basis for
an inference Of fact sufficient to make
"a prima facie case Of priority. Thorn
as v. South Butte Co., I'll Fed. 105,
107. More than twenty five years
have elapsed since the Grouse and
Evening Star were located. Even
though few of the witnesses may have
died or disappeared the available
sources for proofs are far from salts
factory. AS is abundantly illustrated
in the argument oral testimony touch
ing the details of the discovery and
location of a claim of such age Is in
herently weak. The very fact that
witness attempts to relate just how a
claim was located that long ago, or to
state positively that the discovery was
in one year rather than another, is
seized upon as evidence that either he
has fabricated his story or he Is the
unconscious victim of mental sugges
ton. Considering separately the
Grouse conflict the locators of the
Evening Star doubtless knew of the
location or attempted location of the
Grouse at the time they made their
location. OF record it appeared to
have priority when the patent pro-
ceedings were taken, and in such pro-
ceedings it was manifest that priority
was claimed for it. Neither here nor
in the record Of the patent proceedings
is there any intimation of a reason
why the owners of the Evening Star
failed to adverse, unless 1t be that
they conceded priority to the Grouse.
III, IN tnOSe years Wnen the evidence
was more accessible, they did not be-
leve that the Groues held the prior
right it is for them to furnish an eX-
PLANTATION why they failed to assert
their rights, for men do not abandon
their property without a reason. The
natural and almost unavoidable infer
ence Is that they then conceded the
Grouse's priority, and, in giving reas-
enable weight, to such inference, l am
inclined to find such priority. In or
der that the question decided may be
clearly defined especially in the event
of a review by an appellate court, 1t is
proper to add that If. under the cir
cumstances, no inference can be drawn
from the failure of the owners of the
Star to adverse, my finding must be
the other way. Some of the testi-
mony on each side is highly i'm
probable, and l am unable to say
that it preponderates for the defend
ant. Other questions touching de-
tails Of location must be ruled against
the plaintiff, upon the authority of
Yosemite M. Co. V. Emerson, 208 U. S.
80, the Lawson case and the Butte &
Superior company case, supra.
The Iron Crown ] find relates back
only to its relocation, and II is held
to be subsequent in time and inferior
In right to the Star.
Counsel for the defendant are direct
ed to prepare decree in harmony
with the views herein expressed