The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1918-03-21
Decision Finds Fed
eral Had Prior
Location
THE STAR WILL APPEAL
End of First Round in Case
Involving Ground That
Is Worth Millions
-HE MINER had hoped to be able
to publish the full text Of the
decision of Judge DIETRICH in the

II to publish the full text or the
decision of Judge DIETRICH in the
Star Federal case, which was
rendered last Friday. Through error
in mailing, however, the document will
not be received until too late for this
issue. 1t will be published in full
next week. The case was tried In
this city last October and the argu-
ment was submitted a few weeks later
in Coeur dAlene, The attorneys for
the Star were John p. Gray, Of Occur
d'Alene and James A. Wayne of this
city. For the Federal were Mar
shall n Mcmillan, of Salt Lake
City, and c. w. Beale, Of this
city. An array of expert tes-
tmony, including mining engineers
and biologists Of national reputation.
appeared on both sides, as well as
numerous local engineers, biologists
and practical prospectors who either
located the ground involved in the
controversy or had personal knowl-
edge regarding it. The action was
brought by the Star Mining company
in which 1t was alleged that the Fed
eral Mining & Smelling company, In
the operation of the Morning mine,
had extracted a large amount of ore
from the Morning Star and Mary r.
fraction claims, owned by the plain
tiff, and asking for an order perman-
emily restraining the Federal from re-
moving ore from the disputed ground
and for an accounting for all ore re-
moved In the opening statement the
attorney for the Federal conceded that
ore had been removed from beneath
the surface boundaries of the Star
, ground, but contended that in doing
so the company was acting within the
law defining extralateral rights, the
vein having it's apex within the lines
=, of the Grouse and Iron Crown claims,
owned by the Federal 1t was there
fore on the question of apex that the
great legal battle was fought, and 1t
, appears from the brief extract from
the decision given below that Judge
Deitrich's conclusion turned upon the
priority of location as between the
Grouse and Evening Star claims, rath-
er than upon the finely drawn tech
nical theories of geological structure
f advanced by the opposing expert wit
, nesses
Finds for the Federal.
The time that has elapsed since
; the case was submitted indicates that
; | % h te
sion only after prolonged and careful
| study of the intricate questions in
volved. Maps and models were shipped
to Boise for his use in reviewing the
testimony. He bases his opinion on the
priority Of the location of the Grouse
claim, which was in conflict with the
; Evening Star and which passed to
patent without protest from the latter,
, but adds that if upon review by
: higher court mo inference can be
drawn from the failure OF the owners
: OF the Star to adverse, my finding
must be the other way" Further
commenting the court says that some
of the testimony upon each side was
, highly improbable, and I am unable to
say that it preponderates for the de-
} fendant"
Conclusion.
= In concluding his finding Judge
3 DIETRICH says
$ considering separately the Grouse
: conflict the locators of the Evening
Star doubtless knew of the existence
n of the location or attempted location
t of the Grouse at the time they made
q their location. OF record 1t appears
= 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
t in the record of the patent proceed
= ings is there any intimation Of a rea-
n son why the owners Of the Evening
y Star failed to adverse unless it be
y that they conceded priority to the
a Grouse
= 'If in those years when the evil
= dence was more accessible they did
o not believe that the Grouse held the
= priority right it is for them to fur
e nish an explanation why they failed to
e assert their rights, for men do not
abandon their property without rea-
h son.
e "The natural and almost unavoid-
! able inference is that they conceded
: the Grouses priority and giving rea-
$ sonable weight to such an inference,
e 1 am inclined to find such priority