60 F. 531 | U.S. Circuit Court for the District of Southern California | 1894
The record in this case is a very voluminous one, and has been carefully examined and considered. The premises in controversy are oil-bearing lands, the government title to which, under existing laws, can alone be acquired pursuant to the provisions of the mining laws relating to placer claims. The defendant, California Oil Company, claiming to be the owner of a placer mining location called the “Razzle Dazzle,” made application to the register and receiver of the United States land office at Los Angeles, in which district the land is situated,’ for a patent, against the issuance of which the plaintiffs, Richard Gird and J. C. Udall, filed a protest in writing, claiming that 17 5-10 acres of the Razzle Dazzle location are embraced by two previous mining locations, called, respectively, the “Whale Oil” and “Intervenor No. 3,” of which they are the owners; and thereupon, within the time prescribed by section 2326 of the Revised Statutes, and pursuant to its provisions, the contestants commenced the present action in the superior court of Ventura county, of this state, to determine the conflicting claims of the respective parties to the disputed premises, from which' court the action was, on motion of the defendants, transferred to this court. The proceedings here are purely statutory,' and but a continuation of the contest that arose in the land
The ground in controversy is situate in the county of Ventur,a, and within the Little Sespe petroleum mining district. That district was not organized until after the passage of the act of congress of May 10, 1872, which provides, among other things, as follows:
“The miners of each mining district may make regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will 'identify the claim. On each claim located after the tenth of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars worth of labor shall be performed or improvements made during each year. ⅞ ⅜ ⅜ But where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall he open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location ⅜ ⅜ * .” Rev. St. § 2324.
Upon the organization of the Little Sespe petroleum mining district, which occurred April 27, 1878, J. C. Udall was elected recorder, and W. Roberts, J. F. Dye, and B. O. Sobey a road committee for the district. On May 4th following, by-laws were adopted, including, among others, the following:
“Section 1. Any one locating a claim or association of claims must show the notice duly posted on the claim, also the corners1 of the claim, to a witness, who must be a claim owner in the district, who will sign said notice, also a copy of the same to be given the recorder for recording. Sec. 2. No claim shall he recorded until at least three corners are set. When a corner of a claim is designated by a stake, it must be at least three feet high. Mounds of rock for the same purpose shall be two feet high. When a corner cannot be sot, a witness post or mound must be set as near to it as possible on the line of the claim, and marked in same fashion as referred to in the location notice. Sec. 3. All claims must be recorded in the district within thirty days from the date of location. ⅞ * ⅞ Sec. 8. The necessary annual work to be done or expenses made on any claim in this district may, at the opt'on of the claim owner or owners, he done on any road in the district desigualed by the road committee, the course of which shall be laid out by said committee. Sec. 9. A claim owner shall be entitled to work on any part ol' such road nearest to his own claim for which he Is doing work. Sec. 10. Two members of the road committee at least must locate the course of roads. Their decision shall be final. Sec. 31. The time employ, d by the road committee laying out course of roads, or in showing claim owners where to work on the road, shall account for work done on any claim or claims of theirs they may designate to the recorder. *' * ⅜ Sec. 13. The recorder shall file for record all claims duly certified to, and shall keep the same on file for the period of nineteen days, which shall be considered duly*534 recorded unless set aside by satisfactory proof being shown of a prior location in accordance with these laws. At the expiration of nineteen days, he. shall proceed to record the same on the presentation of the proper fee. See.-14. The recorder shall issue a certificate for the assessment or necessary annual work done on any claim or association of claims, on being presented, before the end of the year, with a certificate, signed by the president or two members of the road committee, that such work has been done by or for any claim owner on his or their claims, provided said claim is entered on the books of the district; otherwise, the claim shall be open to location. See. 15. The road on which the annual work for claims is to be done in the district commences at the mouth of the Little Sespe creek; thence by way of the Los . Angeles claim, taking the most practical route to Tar creek. * * * Sec. 20. The recorder shall keep a book of record of claims, also a book of record of assessment work, which shall be open at all reasonable times for inspection, and at no time to be taken out of the district.”
At the fourth annual meeting of the claim owners of the district, held April 27, 1882, the following resolution was unanimously adopted:
“That all claims situated in this district that have been, or at any time hereafter shall have been, duly represented in accordance with the by-laws of this district for 'the period of four years from the date of their location, shall not be liable to relocation, or required to pay any further assessment under the laws of the district, sub.iect only to the mineral law of the United States, passed May 10, 1872, and its amendments; this amendment to the laws of the! district to take effect thirty days after its publication or posting in the local land office in which this district is situated.”
At the sixth annual meeting of the claim owners of the district, held April 28, 1884, it was—
“Voted, that the by-law requiring annual meetings be changed and amended to holding meetings once in four years, dating from the 1st of January next, requiring the next meeting to be held on the 1st day of January, 1889. (2) Voted, that a road overseer be appointed for the district, whose duty shall be to oversee and direct the making and repairing the roads in the district, as laid out and approved by the road committee. (3) Voted, that' J. 0. Udall be the recorder of the district for the above term of four years, and until his successor is duly qualified. (4) Voted, that J. U. Dye, H. Haines, and J. C. Udall be the road committee for the district for the above term of four years. (5) Voted, that J. O. Udall be the road overseer for the district for the term of four years. ⅞ ⅜ ⅜ (8) Voted, that for the next four years from date all of the claims situated above and between the Los Angeles claim and Squaw flat be held responsible to the overseer for their equal proportion of the expenses of making and maintaining the roads in that part of the district. (9) Voted, that J. C. Udall, the overseer, have power, and is hereby delegated the power, to sell any claim, or sufficient portion thereof, to the highest bidder, for cash, to pay said proportional expenses, “the owner of which, after being duly notified by publication or otherwise, refusing to pay his or then proportions or shares of said road expenses.”
The rules so adopted by the miners of the district, except where in conflict with some law of the United States or of the state of California, being authorized and sanctioned by express statutory enactment, are, where in force, as valid and binding as if they were a part of the statute itself. It will be seen that by the first local rule respecting the location of claims the locator is required to. post a notice on the claim, and to show it, together with the corners of the claim, to a witness, who is required to be a claim owner within the district, who must sign the notice as a witness, a copy of which is required to be given to the recorder for recordation. There is nothing in these requirements in conflict with any of the pro
“AH records of mining claims Hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims, located by reference, to some natural object or permanent monument, as will identify the claim.”
We see, then, that one of the essentials to a valid'location within the Little Sespe petroleum mining district is the posting by the locator of a notice of location on the claim, signed also by a witness who is himself an owner of a claim within the district, and that such notice be recorded with the recorder of the district within 30 days after the malting of the location; which record shall contain ■ the name or names of the locators, the date of the location,, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim. The Whale Oil claim, which embraces almost all of the ground in controversy between the parties, was located July 15, 1878, by L. X). Gavitt and William Dryden, to whose interest Udall and' Gird succeeded prior to the execution of the leases hereinafter mentioned, and the claim duty recorded; and this record constitutes the first ground of objection made by the defendant to the Whale Oil location. As contained in the records of the district, the description of that claim is as follows: ,
“Oom’c’g at a point on Boulder creek, a tributary of the Sespe, at a point where a continuous ledge crosses said Boulder creek, and more particularly where the stream of water crosses the said ledge & has a fall of some 10 feet at a mark £¡2 cut into the ledge; running thence west 16 2-5 chs. to mound of rocks, said last-mentioned line being 10 chains north of oak tree on which is posted notice of Oil Spouter claim [said tree being the S. W. comer of said last-mentioned claim], running thence north 15 chs. to mound of rocks; . thence east 26 2-3 chs., crossing Boulder creek at 20 chs. at falls, & marked S|2 to accessible bluff; thence S. 15 chains to laurel tree, 4in. in diameter, marked £]a; thence west 10 chains to point of beg. Oont’g 40 acres of land, situated in the Little Sespe petroleum mining district, Ventura Co., Cal., and known as the Whale Oil Claim. July 15, 1878.”
In the record the words in brackets, “said tree being the S. W. corner of said last-mentioned claim,” were erased, from which circumstance it is earnestly contended that the notice as recorded could not have been a copy of the notice as posted' on the claim, but was written by the recorder Udall “to suit himself.” It is said . that, if the recorder was copying from a written notice into the book of records, he could not have inserted so many words not in the writing from which he was copying. It is not probable that he would; but by no means impossible. The recorder was a man then ■.well advanced in years, and does not appear to-be one of much edu
“The name or names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim.”
In speaking of tbe distinction that exists between tbe notice posted on tbe claim and tbe statutory requirement respecting the record of such notice, tbe supreme court of Nevada, in Gleeson v. Mining Co., 18 Nev. 465, said:
“There can be no question that the original paymaster notice was all that the law requires. The only objection to it is that it did not contain in itself a description of the claim by reference to some natural object or permanent monument. It was not necessary that it should. It is only the record of the claim that is required to contain such a description; and there are excellent reasons for making the distinction between the notice and record in this particular. A notice is generally, and for safety ought always to be, posted immediately upon the discovery of the vein, before there is any time to survey the ground, and ascertain the bearings and distances of natural objects or permanent monuments in the neighborhood; and, besides, the claim referred to by the notice is always sufficiently identified by the fact that it is posted on, or in immediate proximity to, the croppings. A notice claiming a location on ‘this, vein’ has only one meaning. But the notice is exposed to the danger of removal by adverse claimants or destruction by the elements, and for permanent evidence of the location its record is provided for. The record, if it consisted of.a mere copy of the notice, would not identify the daim, and there would be an opportunity, as well as a temptation, to the locators, upon the discovery of al more valuable mine in the vicinity, to prove, by perjured witnesses, that their notice was posted on that mine. The floating of claims was by no means an infrequent occurrence prior to the act of 1872, and, if such attempts were seldom successful, they were always vexatious, and often the means of levying a heavy blackmail. It was on this account that the record (not the notice) was required to contain ‘such a description of the claim or claims located, by reference to some natural object or permanent monument, as will identify the claim.’ Rev. St. § 2324. It is a sufficient compliance with this provision of the law if the description of the locus of the claim is appended to the notice when it is recorded.”
Tbe purpose of tbe marking of tbe boundaries of tbe claim, hereafter referred to, and of tbe record of tbe location, are further stated by tbe supreme court of Colorado, in tbe case of Pollard v. Shively, 5 Colo. 317, as follows:
“Marking the boundaries of the surface of the claim as required by statute is one of the first steps towards a location. It serves a double purpose; it operates to determine the right of the claimant as between himself and the general government, and to notify third persons of his rights. Another seeking the benefits of the law, going upon the ground, is distinctly notified of the appropriation, and can ascertain its boundaries. He may thus make his own location with certainty, knowing that the boundaries of the other*537 cannot be changed so as to encroach on grounds duly appropriated prior to the change. The prevention of fraud by swinging or floating is one of the purposes served. The record also serves a double purpose. As between the claimant and the government, it preserves a memorial of the lands appropriated after monuments, in their nature perishable, are swept away. It also supplements the surface marking in giving notice to third persons.”
It abundantly appears from the testimony that the description of the Whale Oil claim as recorded is sufficient for the identification of the boundaries as claimed by the plaintiffs. Indeed, this is not denied by counsel for defendant.
But it is further contended on the part of the defendant that no monuments were established, either on the Whale Oil or Intervenor No. 3 claim, as required by the rules of the district at the time of their location; that no notice was posted on either of the claims, as required by the rules; that, if the monuments were erected and notices posted, they were not kept up so as to preserve the validity of the locations, and that no work was done on either of the claims during any year since they were located. The Whale Oil, as has been said, was located July 15,1878, by L. D. Gavitt and William Dryden. J. F. Dye was then living on the Kentuck claim, of which he was the claimant. During the preceding May, a claim called the “Oil Spouter” had been located by A. W. Potts and Alfred James, the notice of loca fcion of which was posted on an oak tree situated in Boulder canon above its junction'with Sespe creek. Dye suggested to Gavitt and Dryden, who were visiting him, that they locate the ground claimed as the “Whale Oil,” and they concluded to do so. Early in the morning of the day the location was made, Gavitt prepared a rope to correspond with a chain, with which, to measure the distances, and Dye pointed out to him the oak tree on which the Oil Spouter notice was posted. From that tree Gavitt, assisted.by the recorder, Udall, measured up Boulder canon 10 chains, which was the width of the Oil Spouter claim. At this point, which was on the northerly line of the Oil Spouter, there was a ledge of rocks and a waterfall of 8 of 10 feet, and this ledge was selected as the starting point of the Whale Oil claim. The ground there, and, indeed, the entire territory included within the district in question, is extremely rough and mountainous; so much so that Gavitt had great difficulty in establishing the corners of the Whale Oil claim, one of which it was necessary to fix by means of ⅛ witness stake. The witness Udall, by reason of his age and the roughness of the ground, was unable to go with Gavitt along the lines of the claim, but he saw Gavitt traversing them and erecting the monuments, who pointed them out to the witness, including the witness stake to mark the northeast corner, which could not be reached by Gavitt because the ground at that place is almost perpendicular. Gavitt worked several hours in thus marking the boundaries of the Whale Oil claim, and the notice posted by him on it was so exact and specific that the surveyors who were witnesses for the defendant on the trial of this case had no difficulty in finding the lines of the claim from the description given in the notice. At at least two of the comers of the claim they found a pile of rocks still existing, though they were not then two feet high, as required by the local rules. Nor is there any direct evidence that
The evidence in respect to the location of the Intervenor No. 3 claim, which covers a small strip of the disputed ground, is very different: That claim adjoins the Whale'Oil on the east, and is claimed to have been located March 6,1885, by the plaintiff Udall. The notice of location, as recorded in the records of the district, is as follows:
“Intervenor No. 3 — Lo
“Notice is hereby given that I the undersigned have this day located & claim 20 acres of this oil land for an oil claim to wit commencing at the northeast corner of the Oil Spouter claim running thence north 15 chs., to the northeast corner of Whale Oil claim thence east 20. chs. thence south 15chs to the northeast corner of the Intervenor claim thence west on the north line of the Intervenor claim 20 chs. to place of beginning, contang 20 acres to. be known as the Intervenor No 3 X O. Udall
“Little Sespe P M District Mar 6th 1885 at 10 a. m.
“Recorded Mar 12th 1885 X O. Udall
“Recorder.
“Witness Mason Bradfield.”
Although the notice purports to have been witnessed by Mason Bradfield, Udall himself in his testimony admits that Bradfield did not in fact witness the posting of the notice on the claim, nor did he (Udall) ever point out to him its boundaries, nor was Bradfield a claim owner within the district, but that he (Udall) signed Brad-field’s name to the notice, and entered it in the record a long time after the pretended location. In none of these particulars did the locator conform to the requirements of the local rules. Besides, not only does the testimony of the very man who claims to have made, the location fail to show the proper marking of the boundaries of the claim on the ground, but it is perfectly apparent therefrom that they were not so marked as that the boundaries of the location could be readily traced. The circumstance that the ground was extremely rough and mountainous did not relieve the locator of the obligations imposed upon him by the law. It is plain that the pretended location of the Intervenor No. 3 claim was invalid from its inception, and it need not, therefore, be further considered. The notice posted upon the Whale Oil claim remained so posted some months. Udall testifies that he saw it on the tree several months after it was put up, ¡but- never saw it afterwards, and there is no other evidence
“Upon a failure to comply with its provisions, the claim or mine upon which such failure occurred shall be open to re-location in the same manner as if no location of the same had ever been made, provided, ¡hat the original locators, their heirs, assigns or legal representatives, have not resumed work upon the claim after failure and before such location.”
From time to time after the organization of the Little Sespe petroleum mining district, a large number of claims were located within its limits. In 1878 a well was commenced on the Kentuck claim, and sunk until oil was reached. Shortly afterwards, two wells were sunk on the Los Angeles claim, at a cost of about $60,-000. In those days the difficulties of operating in the district were great, and the value of the territory had not been demonstrated. The result was that the locators began to move away, and by 1882 no one remained there as a permanent resident hut the recorder, ITdall. lie remained and, personally and by employes, did more or less work on the roads, and sought to interest capitalists in the territory. .By degrees he acquired a large number of claims m the district, in which, through him, the plaintiff Gird subsequently acquired an interest; and those two persons — L'dall and Gird— thereafter, by written instrument under date January 19, 1886, and in which L. I). Gavitt, Edward Roberts, and E. G. Sobey joined as lessors, leased, upon certain terms and conditions not here necessary to he stated, for the period of 99 years, to Lyman Stewart'Dan McFarland, and W. L. Hardison, 60 mining locations within the district in question. This lease, with the consent of the lessors, was subsequently assigned to the Sespe Oil Company, a corporation, to which corporation Udall and Gird, by a subsequent lease, of date; May 14, 1887, leased, for a similar period of 99 years, and upon similar terms and conditions, 20 other mining claims in the Little
It is Undoubtedly true that petroleum, with its natural gas, unlike other mineral deposits, is movable by virtue of its own inherent force, as well as by virtue of its liquid character, and that this gas may be, and is, greatly assisted by pumps. The evidence shows,, too, that, if fresh water gains access to the oil rock, it will drive out of the rock all of the gas and oil, and will do this for great distances. The evidence of Mr. Minor and of other witnesses shows that many fine wells in Pennsylvania have been ruined from this cause by neglect or design. Their evidence also shows that there it was. common for unscrupulous persons to bore wells on the margin of' their own holdings for the very purpose of thereby drawing oil from their neighbor’s premises. But, as the normal condition of petroleum is one of repose, and not of motion, and it belongs to the rock in which it is embedded, it would seem to be very clear that the only difficulty in the way of preventing the recovery by the owner of the-oil so abstracted would be the difficulty of making the necessary proof. But the fact that an oil well will drain oü frorh adjacent ground for very considerable distances, and the further fact that
“Congress, when it came to regulate these matters, and provide for granting a title to claimants, adopted the prevalent rule as to claims asserted' prior to the statute; and, as to those made afterwards, it required $100 worth of labor or improvement to be made in each year on every claim. Clearly, the purpose was the same as in the matter of similar regulations by the miners, namely, to re.quire every person who asserted an exclusive right to his discovery or claim to expend something of labor or value on it as evidence of his good faith and to show that ho was not acting on the principle of the dog in the manger. When several claims are held in common, it is in the line of this policy to allow the necessary work to keep them all alive to be done on one of them. But, obviously, on this one the expenditure of money or labor must equal in value that which would be required on all the claims if they were separate or independent. It is equally clear that in such case the claims must bo contiguous, so that each claim thus associated may in some way be benefited by the work done on one of them. The prin*542 ciple is well stated by Judge Sawyer in tbe case of Mining Co. v. Callison, 5 Sawy. 439, Fed. Cas. No. 9,886. ‘Work done,’ be says, ‘outside of tbe cLUin, or outside of any claim, if done for tbe purpose and as a means of prospecting or developing tbe claim, as in tbe cases of tunnels, drifts, &c., is as available for bolding tbe claim as if done witbin tbe boundaries of tbe claim itself. One general system may be formed, well adapted and intended to work several contiguous claims or lodes; and, where sucb is tbe case, work in furtherance of tbe system is work on tbe claims intendedl to be developed.’ "
In the case at bar, none of the work done or expenditures made by the lessees of the plaintiffs, relied on to sustain the claim to the "Whale Oil, were done or made on any claim contiguous to it. It is true that the evidence shows that, prior to the making of the leases in 1886 and 1887, Udall from time to time, under and pursuant to the local rules of the district, did considerable work in building roads in the district, and on the road that led in the direction of the Whale Oil claim. But the local rules, in so far as they conflict with the act of congress are, of course, of no avail, and that, as has been repeatedly stated, requires an annual expenditure of flOO in work or improvements , on each claim, provided that, where the claims are held in common, such expenditure may be made upon any one claim. But, to come within this latter provision, the claims so held in common must, as said by the supreme court in Chambers v. Harrington, supra, be contiguous, and the labor and improvements relied on must, as held in Smelting Co. v. Kemp, 104 U. S., at page 656, be made for the development of the claim to which it is sought to apply them; that is, in the language of the supreme court, “to facilitate the extraction of the minerals' it may contain.” This, I think, cannot be justly affirmed of any part of the large expenditures shown to have been made by the lessees of the plaintiffs in the development of some of the claims embraced by the leases, all of which are remote from, and none contiguous to, the Whale Oil. I have not overlooked the contention of plaintiffs’ counsel that by the well the lessees of the plaintiffs commenced on the Kenyon claim they hoped and expected, in years to come, to draw the oil from the Whale Oil claim, which is . distant from the Kenyon considerably more than a mile, and between which and the Kenyon is a mountain range. The time when this result might be reached was fixed by the plaintiffs’ witness who advanced the theory at from 10 to 100 years. "When to this is added the fact that the well that was thus expected to extract the oil from the "Whale Oil claim was not commenced until 1891, which was after the location of the Razzle Dazzle claim, upon which the defendant relies, nothing more need be said to show that work upon the well upon the Kenyon claim cannot be counted to maintain the validity of the "Whale Oil location.
It is further contended on the part of the plaintiffs that the failure to do the required annual work or make the required annual im- . provements on the "Whale Oil claim was due to threats made by Dye to Udall, and by Bradfield to employes of the plaintiffs’ lessees. The record does not sustain the contention. It seems that about 1886 Dye billed a man named Haines, and in 1888 he grossly insulted Udall, and threatened his life. The trouble between them grew
It remains to consider the Eaazle'Dazzle location, which was made December 6, 1890, and under and in pursuance of which the defendant asserts the right to a patent from the government. Mason Bradfield, George J. Henley, and John Thompson were the locators of this claim. It was witnessed by J. G. Barker. The location notice is as follows:
“Notice of Location of a Placer Claim.
“Notice is hereby given, to all whom it may concern, that Mason Bradfield George J. Henley and John Thompson citizens of the United States of America, over the age of twenty-one years, have this day located, under the Ite-vised Statutes of the United States of America, chapter six, title thirty-two, the following described placer mining ground, viz. It being the north half of the N. E. quarter of the N. E. fractional quarter, and lot one of Sect, one, T. 4 N. range (20) twenty west S. B. M. and more fulley discribed as follows, beginning in the center of lot (6) six S. (1) one T. (4) four N. (20) R. twenty west S. B. M. at a monument of Stone’s, running north twenty four (24) and 40-100 chains, to a monument of stones, thence east twenty (20) chains to a monument of stones, thence south twenty four (24) and 40-100 chains to a monument of stones, thence west twenty (20) chains to a monument of stones which is the place of beginning this claim contains fourty eight (48) and 90-100 acres of Pet Oil & Brown Stone Mining ground situated in what is called the Little Sespe P. O. mining district, county of Ventura state of California.
“This claim shall be known as the Razzle Dazzle Placer Mining Claim, and we intend to work the same in accordance with the Laws of the United States of America.
“Dated on the ground this 6th day of December, A. D. 1890.
“Locators
"Attest Mason Bradfield
“J. G. Barker . Geo. J Henley
“J. G. Barker John Thompson”
The notice was placed in a small tin can, and the can placed by the locators on a little shelf in a rock mound, more than two feet high, erected by them near a tree on the claim, and a copy of it filed for record with the recorder of the district December 24, 1890. The evidence shows that the corners of the claim were marked by largis-rock mounds, considerably more than two feet in height, and near the northeast corner a diagram was cut in the rock, and measurements given by which the claim could be easily identified. The evidence, I think, clearly shows that the boundaries of the claim were
It is further urged that the notice itself did not convey any information as to the boundaries of the claim, and this because it refers to certain subdivisions of a United States survey which, it is said, was never in fact made upon the ground. A portion of the township in which the ground in controversy is located was surveyed prior to the location of the Whale Oil claim, and thereafter one Col- . tins was deputized to survey the remainder of the township. This survey Collins claimed to have made, and he returned to the land office field notes thereof and a map, which received the approval of the land department. Upon information tending to show that the pretended survey by Collins was not in fact made in the field, the commissioner of the general land office subsequently, to wit, July 15, 1885, suspended all entries of land embraced within it pending an investigation of the matter. But, afterwards, filings and entries were permitted and patents issued by the officers of the land department, based upon that survey. I agree with counsel for defendant, however, that it is immaterial in this proceeding what may be the ultimate fate of the Collins surrey. If it should continue approved and valid, the Razzle Dazzle location conformed to it as required by the provisions of section 2331 of the Revised Statutes; and, if it should be set aside, the map of record in the land office may still be as well referred to for a description of the ground located.
It is further urged on the part of the plaintiffs that, independent of the Whale Oil location, the ground covered by the Razzle Dazzle location was not at the time open to location by Bradfield, Henley, and Thompson, because it was then in the actual physical possession of David H. Irland, who was then, by his employes, engaged in putting down a well upon it, and that Bradfield and Henley were estopped from claiming the ground; the latter for the reason, it is said, that he was in the employ of Irland, and the former upon the ground that Irland was holding under him. But these positions are without support in the record. The evidence, I think, shows that Irland himself was in the employ of the defendant oil company, and that the work that he was doing on the ground in question at
