1 Colo. L. Rep. 524 | U.S. Circuit Court for the District of Colorado | 1881
The questions to be determined on the evidence relate to the plaintiff’s location, which he calls the Adelaide.
As to the work on the ground necessary to a valid location, the statute of the state provides, among other things, that a discovery shaft shall be sunk to the depth of at least ten feet, or deeper if necessary to find a well-defined crevice. And the Federal statute declares that no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.
The position of the plaintiff is, that Walls and Powell, the locators of the Adelaide claim, found a lode or vein in the discovery shaft sunk by them, and that position is controverted by defendant. I do not recall anything said by witnesses as to a crevice in that shaft; but there is some testimony to the effect that ore bearing silver was found there. If you find from the evidence that such ore was taken from the Adelaide discovery shaft, it is important to consider whether it existed in mass and position; or in other words, in the form of a vein or lode; or, on the other hand, in a broken and fragmentary condition, intermingled with the slide and debris on the surface of the mountain. For it rests with the plaintiff to show that ore was found in the discovery shaft, and also that the same body, vein or lode extends to the ground in controversy. Of course, if ore was found in the discovery shaft, and the ore so found was broken and fragmentary, it cannot be said that a body of ore—a vein or lode— was found in that shaft which extends to the ground in dispute.
So that, if you find that no ore was discovered in the discovery shaft of the Adelaide claim, or, if ore was found in that shaft,
And in this view (that is, assuming the facts to be as stated,) the circumstance that plaintiff’s grantors afterwards developed the body of ore in controversy higher up the mountain side, will not affect the result. For a location rests on what may be found in the discovery shaft. And if nothing is found there, or if what is found there does not extend beyond the limits of the shaft, the discovery of a body of ore elsewhere in the claim will not avail.
But if a vein or lode was found in the discovery shaft of the Adelaide claim, and it extends throughout the ground in controversy, the plaintiff may prevail.
Something has been said as to whether the locators complied with the other provisions of the statute, relating to posting notice of the discovery on the claim, staking the boundaries, all of which must be shown in evidence, to constitute a valid location.
If you find these things to be proved, and that a vein or lode was found in the discovery shaft, the question remains, whether such vein or lode extends to the ground in controversy. Upon the evidence here, it may come to the point whether the lode of ore found in the several shafts on the hill was also found in the discovery shaft of the Adelaide claim. Nevertheless, if you believe from the evidence that a vein or lode was found in the discovery shaft, and that it is not the same as the vein or veins found in the shafts on the same claim, higher up the hill, but that it extends throughout the claim, the plaintiff may prevail.
This being shown, although defendant’s locations may appear to you to be along the line of the top, apex or outcrop of the vein, it cannot prevail against a senior location on the dip of the lode. That plaintiff’s location is of earlier date than either of defendants, may be assumed upon two grounds: First, the date -is shown as August, 1876, and in the absence of evidence we cannot presume that the others are of earlier date. Second, in the patent put in evidence by defendant, the Adelaide surface ground is excepted from the grant. This may be prima facie evidence that the Adelaide claim is of older date than the others; but it is not evidence of anything more.
In taking the patents in that form there was no recognition of the plaintiff’s right, or the validity of the Adelaide claim; nor is
The exception in the patent to the Pine claim, to which reference has been made by counsel, does not in any way relate to the matters in controversy here. It should not have any weight whatever with you. The matters in issue are as herein stated, and you will determine them according to the rules now given you, and by the preponderance of evidence. The burden is on the plaintiff to establish every material fact, as hereinbefore declared. •
The jury returned a verdict for plaintiff.