67 P. 666 | Or. | 1902
delivered the opinion.
Plaintiff, as a citizen of the United States, claiming to be a locator, owner, and entitled to, and in the actual possession of, a certain placer mine, triangular in form, described in the complaint is situated about one and one quarter miles above the junction of Josephine Creek and Illinois River, on what is known as “Mud Flat,” adjoining Day’s Gulch, in Josephine County, commencing at a monument of rock on the west bank
It may be taken as conceded that plaintiff’s location of the claim in controversy is valid and sufficient, under the United States mining laws, to entitle him to possession, and to maintain this proceeding to restrain defendant from depositing debris from its mine thereon, provided the claim was laid upon unappropriated public lands. The defendant claims title through William H. Little, and contends (1) that Little himself acquired title and right of occupancy direct from the government; and (2) that Alex George located a claim comprising, for all practical purposes, the one in dispute, and that Little acquired title from him, and conveyed to Alex Watts, who conveyed to the defendant. To sustain the first contention, defendant produced a notice of location whereby Little claims to have located on the day of its date, October 8, 1894, fifteen hundred linear feet of placer-mining ground upon what is known as “Mud Flat,” described as follows: Commencing at a stake No. 1 on Josephine Creek, running northeast to stake No. 2, seven hundred and fifty feet; from stake No. 2, running northwest to stake No. 3, six hundred feet; from stake No. 3 to stake No. 4, running southwest fifteen hundred feet; from stake No. 4 to stake No. 5 southeast six hundred feet,
Little testifies that at the time of the location of his claim,' in 1894, he established a monument at the initial point, as shown by the survey and plat, consisting of a wooden post four or five inches square and five or six feet high, and a like monument at each of the corners or points of diversion from a right line, — five in all. These monuments he describes on the plat as beginning with the initial point, as there designated, and. running in the inverse order of the survey, as one south, two south, three south, etc., up to five south, which, he seems to maintain, is the identical order of location on the ground, and designated in his notice of location. It is readily discernible, however, that the description in the notice of location and the one exhibited by the survey are so dissimilar that they would never be taken one for the other without a positive declaration that they were the same; and even then one is led to
The decree of the trial court will therefore be modified in