The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1920-05-20
STAR VS.. FEDERAL
COURT Of APPEALS
Decision of Judge
F. S. DIETRICH is
Reversed
PRIORITY OF LOCATION
Vast Sum is Involved in Case
Which VIII Now Go to
u. S. Supreme Court

THE LONG expected decision OF
the United States court of ap-
peals at San Francisco on the
appeal from the decision OF
Judge DIETRICH in the Star Federal
case was announced by telegraph last
Monday afternoon and has since been
the subject of much discussion. Ac-
cOrding to the limited information re-
ceived, the court OF appeals has re-
versed the decision of Judge DIETRICH
and orders the lower court to enter
judgment in favor of the Star Min
ing company and against the Federal
Mining & Smelling company for all
ore removed by the latter from the
ground in dispute. 1t is probable that
no further information will be re-
ceived regarding the decision until
copies are received by mail The linn
tied information indicates that the
decision of the appellate court turned
on the question of priority of location
as between the Grouse claim, owned
by the Federal, and the Evening Star,
owned by the Star company. In his
discussion of that phase of the case,
Judge DIETRICH evidently recognized
the force of the argument for and
against the claim of priority as APP
piled to the Grouse, and his ruling in
favor of the Federal on this vital
point was due to the failure of the
owners of the Evening Star to assert
their rights if they claimed any by
filing an adverse to the Grouse appli-
cation for patent. Judge DIETRICH
states however that if under the
circumstances. no inference can be
drawn from the failure of the Star to
adverse. my finding must be the other
way" In view of the widespread in
terest in the case. the language of
Judge DIETRICH in ruling upon the
question of priority is interesting and
is here quoted from his decision:
Star Failed to Adverse.
but in the Lawson case it is ap-
parently held that where there is a
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 ad |
joining, but not conflicting claims |
Upon the other hand, inasmuch as an /
adverse will lie where there is a sur /
face conflict covering a portion of /
the bisected apex. there is much force !
in the argument that the patent pro
ceedines should be deemed to cOnsti- |
tute IN adjudication of the patentee's .
right to the entire vein; 9th
erwise it would he practically with
ont effect even as to surface rights |
for the entire surface of the conflict |
area might be upon the apeX. But ]
am unable to distinguish the substan
tiaI facts of the Lawson case from
those here involved and ACCORDINGLY
nnon the authority of that case. It is
held that the question Of priority Of
discovery is not concluded by the de-
PENDANTS patent.
There still remain the question
whether the patent proceedings have
any probative value. am inclined /,
to the view that under the circum-
stances thew should be held to raise
1 rebuttal presumption or to furnish
4 basis for an inference OF fact suffi-
,ient to make a prima facie case of
priority. Thomas v South Butte Co.
III Fed. 1O5. 1917 More than twenty
i've years have elapsed since the
Grouse and Evening Star were locat-
ID Even though few of the witnesses
nay have died or disappeared, the
available sources for proofs are far
rom satisfactory AS is abundantly
in the argument oral tes-
.imony touching the details of the
discovery and location of a claim Of
,uch age is inherently weak. The
very fact that a witness attempts to
.elate inst how claim was located
hat long ago or to state positively
mt the discovery was in one year
'ather than another is seized upon
Is evidence that either he has fabri-
,ated his story or he is the uncon-
Icious victim of mental suggestion
Considering separately the Grouse
conflict. the locators Of the Evening
star doubtless knew of the location
" attempted location Of the Grouse