17 P. 83 | Idaho | 1888
This is an appeal from the judgment of the district court of the first judicial district of Idaho territory, in and for Shoshone county, rendered on, failure of plaintiff to amend the complaint after demurrer thereto was sustained, the plaintiff having elected to stand on the complaint as filed.
Appellant in his complaint alleges that one Phillip Kirby, a citizen of the United States, on April 5, 1886, located a tunnel site under the provisions of section 2323 of the Revised Statutes of the United States, three thousand feet in length, in the Yreka mining district, Shoshone county, Idaho territory, and that at the time of making such location he marked the line thereof by planting posts at every one hundred feet along the said line, each post being plainly marked “Pilgrim Tunnel Line," and that he posted a notice of the location of said tunnel at the face thereof; that he had cut out trails to said tunnel, three miles in length, and had cut out said tunnel six feet wide and six feet high, and run the same four feet under cover, prior to said location and during said month of April; that on April 12, 1886, said Kirby appeared before the recorder of the mining district in which said tunnel was located, and made the affidavit required by the regulation of the general land office, and the same was duly attached to a copy of the notice of location posted at the face of said tunnel, and said copy of notice
We have the light of but few adjudicated cases to aid us in an investigation of this subject. We are satisfied, however, from an examination of the provisions of section 2323 of the
The judgment of the district court is therefore reversed, and the cause remanded for further proceedings according to law.