181 F. 748 | U.S. Circuit Court for the District of Utah | 1910
The defendant applied for a patent for the Abraham lode, and the plaintiff, claiming to be the owner of the.Copper Belt No. 1 and the Copper Belt No. 2 lodes, filed its adverse claim to that application, and brought this suit in its support. The claims of the plaintiff include the entire claim of the defendant. The Copper Belt No. 1 and Copper Belt No. 2 were located on De
The most serious objection is that, since this suit was brought, the Ute mining claim and the Winnifred mining claim have gone to final entry without any adverse claim on the part of the plaintiff; and, as so entered, the Ute includes the discovery of the Copper Belt No. 1, and the Winnifred^ a point which the defendant contends was the discovery of the Copper Belt No. 3. It is therefore argued that the claims, losing their discoveries, have ceased to exist. The Ute and Winnifred claims were located May 18, 1907, by Thomas Weir, an officer of the defendant company, and passed to final entry on December 31, 1908. Assuming, without deciding, that a final entry is the equivalent of a patent with respect to this issue, the question arises: What has been finally determined by the entry? It must be held to have been conclusively decided that, so far as those claims included parts of the plaintiff’s claims, the owner of the Ute and Winnifred had the better right, and the plaintiff no valid adverse claim thereto; in other words, that on May 18, 1907, when the Ute and Winnifred were located, the ground covered by them was open to location and not owned by the plaintiff. Unless this be entirely inconsistent with the plaintiff’s right to the remainder of the claims, it is no bar to this action. If the Ute and Winnifred had been prior in time to the plaintiff’s locations, no right would have accrued to the plaintiff from a discovery on ground not open to location (Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. 1110, 29 L. Ed. 348) but if thereafter, and before the intervention of other rights, the plaintiff had discovered a vein within the parts of its claims open to appropriation, its locations would have been good, so far as the ground was so open to appropriation. In other words, loss of the titular discovery is not necessarily loss of the claim. Erwin v. Perego, 93 Fed. 608, 35 C. C. A. 482.
With -respect/to the Copper Belt No. 2, I think the evidence justifies the conclusion that the original discovery was at a point within what' was afterwards located as the Abraham and excluded from the Winnifred. - ,
The further-.objection that, when the Copper Belt claims were located, the ground was not- open to location because of the existence of the Panama claim, is sufficiently answered by the suggestion that the evidence fails to show a valid location of the Panama. Smith v. New-ell (,C. C.) .86 Fed. 56.-
The contention- is also made that, because the plaintiff failed to affirmatively show the performance of assessment work for its claim for the year 1908, it must be denied relief. A failure to perform the required annual labor does not in and of itself work a forfeiture. It only permits a relocation. As the Abraham claim was located February 25, 1906, it cannot be considered a relocation of the plaintiff’s claims based on the failure to perform the annual labor for 1908. The performance of such annual labor was irrelevant here and evidence thereof, was properly omitted.
It follows that a decree must- go for the plaintiff for that part of its claims in conflict with the Abraham lode. ■'