VAN ZANDT
V.
ARGENTINE MINING
CO.
725
volved necessarily arise under the laws ·of the United States; and hence thia coud has original jurisdiction of the subject.matter of the aetion, and the case was properly removable. The motion to remand must be denied.
VAN ZANDT. Trustee, v. THE ARGENTINE MINING Co. (Oirw,it Oourt, D. Oolorado. June 16, 1881.) 1. MINERAL LANDS-TERRITORY COMM:ON TO
Two
CLAIMs-TITLE.
As between two locators, the boundaries of whose respective claims include common territory, priority of location confers the better title, provided a vein in place was discovered in the discovery shaft, and provided, also. that it extended to the ground in controversy. 2. SAME-LoCATIONS.
NOr are the rights of the parties chang\ld by the fact that the seniOr location was on the dip of the lode; the junior on the top, or apex;.
Action to recover possession of the Adelaide mining claim, itornia district, Lake county, Colorado. Plaintiff offered evidence to prove that the claim was located by Walls and Powell in the year 1875. As to marking the boundaries of the claim on the surface of the ground, and the finding of valuable ore in the discovery shaft, the evidence was slight; and defendant objected to plaintiff's record title on the ground that these ·facts were not shown. . As there was some evidence on both points, the court held that the paper title should be :received. In the original certificate of location the description of the claim contained no referen<;e to a natural object or permanent monument; but this was corit rected in an amended certificate, and both were received, was held that the first was fatally· defective. Having declared for the entire interest in the claim, plaintiff failed to Ilhow title from the original locators to an undivided one-third interest. One of deeds upon which he relied was not sufficiently proved, and upon defendant's objection it was excluded. Thereupon he moved for leave to make the grantor in that deed, in whom the title to the said one-third interest would rest, (assuming that instrument to be void,) a party plaintiff in the suit. And this was denied by the cQurt: First, because the deed, for aught that appears, was effectual between the parties to it to transfer the property; and, second, a stranger should not bemadea party to the suit without his knowledge and consent, which is not shown. Plaintiff then suggested to the court that, upon
726
FEDERAL REPORTER.
his declaration for the whole interest, he could take s. verdict (or two-thirds, pursuant to sixth paragraph of section 251 of the Code of Procedure of the state. But the court was 01 the opinion that section 249 of the Code, which requires the plaintiff to state the interest: claimed by him, should control, and that plaintiff, having declared for the whole, could not recover an undivided interest. Nevertheless, the plaintiff was allowed to amend his complaint at the tri'J so as to demand but two-thirds interest, and the cbu'rt said that this \Vas often done; for, the plaintiff having first asked judgment for the whole, the defendant cannot now be surprised that he a,sks only a part. In the further trial, of the cause it appeared that the defendant claimed under two locations, called the Camp Bird and Pine, which it held by patent from the government. Plaintiff's claim is in the general course north and south, or, to be exact, north 33 deg. 10 min. east. Defendant's twoolaims, overlapping the other somewhat transversely, are in the· general course east and west. The contesting claims have the relation of the jaws of shears, and the ground in controversy is that included in the space of intersection and a small part of the Adelaide claim immediately north of the intersection. The discovery shaft of the Adelaide claim is or was at the north end of the claim, and some 300 or 400 feet from the ground in controversy. By later operations, and the erection of a mill and ore-house in the vicinity, it had been filled, and the position of it in the claim was not Vef'y well shown. Between this shaft and the ground in controversy there were no openings to prove that the lode extended in that direction, and whether it did so extend was strongly controverted. De'endant gave evidence to prove that no mineral was found in the discovery shaft, and that the condition of the ground was such that, if any was found there, it was broken and fragmentary, or, in other words, of the cba:racter of float mixed with the slide on the surface of the mountain. It appeared, however, that plaintiff and his grantors ha.d maintained possession of the premises from the first, had made va.luable improvements on the claim, and ha.d carried on extensive mining opera.tions at and nea.r the ground in controversy. The Camp Bird and Pine discoveries were west of the ground in versy 200 or 300 feet, and, as defendant contended, on the top and apex of the lode, which at that point extended almost directly across those locations. .The defence, by answer, to the support of which many witnesses were brought into court, was that the ore in controversy was a part of the vein which defendant held by its top and
VAN ZA};DT V. ARGENTINE MINING CO.
727
apex. If what has been: said to explain the position of the claims iEt intelligible, it will be'apparent that in this view the Adelaide loca.tion -oxtended across . the vein and on its dip, below the top. and,. which was to the west of that:location. And as the Adelaida Ioea,:, tion was first in time, it became a question whether a ,location so made and otherwise sufficient would be loeation on the top and apex of the vein. This having been ruled as expressed in the charge'to the jury, muoh testimony as to the top and apex of the vein,and the continuance of the vein to the gri:>Undin controversy, was withheld, a.nd the case stood on the validity of plaintifi's location, whether a vein in place wasfQund in tbe:discovery shaft of that location, and whether the: vein, if found" ,there, exten'ded to the ground ini d i s p u t e , i ' Chas. S. Thomas, Tkos. M. Patterson and J as. B. Belford, for:plaintiff. ;v," . H. C. Thatcher and G-. B. Reed, for defendant; HALLETT,D. J., (charging jury.) The questions. to'bedetermitied on the evidence relate to the plaintiff's location, which he cal,Is the Adelaide. As to the work on the ground necessary ·toa valid: location, the statute of the state ,provides, among other things, that a discovery shaft shall he sunk t() the depth of at least 10 feet, or deeper, if necessary, to find a w.ell·defined crevice. And the feder&lstatute declares that no location of a mining claim shall be made uutiLthe discovery of the vein or lode within the limits of tbeclaim .lo.cated. The position of.the plaintiff is that 'Walls and Powell, the locl\tors of ·the Adelaide claim, found So lode or vein· in t,he, discovery shaft sunk by them, ahd 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 are bearing silver w8,$,{Q\Uld there. If you find from the .evidencethat suah .ore wasftaken frli>In the Adelaide discovery shaft, it is important to cO'nsider existed in mass and position; or, in other words, in the vein ,or lode; or. on the other hand, in a broken and fragment8l1'Y condition, intermingled with the slide and debris on the surface ,of the mountain. For it rests with the plaintiff .to show that are "'as found in the discovery shaft, and. also that the same body, vein, or lode extends to the ground in controversy. Of conrse, if. ore WllS: found in disc(;)\lery shaft, and the ore so found wa.s broken and fragmentary, it.Mnnot be ,said that a body of ore--a,vein or lode-was found in that. shll.ft·1Whichextends to the ground in disputtl.. So that,
728
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 it was broken and fragmentary, your verdict will be for the defendant. And in this view-that is, assuming the facts to be as stated-the circumstance that plaintiff's grantors afterwards developed the body of ora 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 cotne 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 defendant's, 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&re 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 defendant in any way precluded thereby from contesting that claim. 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
THOMA.8 v. DETJANARE, LACKAWANNA
&
WESTERN R. CO.
729
in contruvers;7 here. It should not have any weight whatever with as herein stated, and you will deteryou. The matters in issue you, and by the promine them according to tbe rules nlJW ponderence of evidence. The burden is on the plaintiff to establish every material fact, as hereinbefore declared. The jury returned a verdict for plaintiff.
THOMAS, Adm'x, etc., v. Tn DELAWARE, LACKAWANNA & WESTERN R. Co. (Circuit Oourt, N. D. New York. September 1,1881.) 1. RAn,RoADs-PRIVATE CROBBINGs-NEGLIGENCE.
Instructions that although there was no statutory obligation which required the railroad company to ring a bell when approaching a private crossing, the jury might find it was negligence to omit to do this when running at a high rate of 8peed, at a time when the view of the train was so obstructed by carson a side track as to render the use of the crossing peculiarly hazardous; that a railroad company ordinarily has the right to run its trains at any rate of speed it thinks proper, but that the condition of the crossing might impose somerestrietions upon this right, and, under the circumstances, the jury might predicate upon excessive speed; that one using such crossing must use all his faculties to ascertain whether or not he could do so safely; that one has the right to assume that the company would use more than ordinary care in approaching a crossing so obstructed.-lteld, to be unexceptionable. Held, allo, that evidence was properly admitted to show how long the empty freight cars had been allowed to stand on the side track prior to the occurrence of the accident.
Spriggs c1; Mathews, for plaintiff. J. D. Keman, for defendant. WALLACE, D. J. The points raised by the defendant on itp motion for a new trial are not well taken. The instructions to the jury fully and ,correctly presented the law of the case. The plaintiff's intestate was killed while crossing the railroad track of the defendant at a private crossing where he had a right to be, and in regard to which the defendant was charged with the duty of exercising reasonable care for the protection of those entitled to use it. The evidence authorized the jury to find that the defendant was guilty of negligence in running its special train at lit furious rate of speed across a crossing which it had obstructed by its freight oars, so that the view of an approaching train was intercepted, without ringing the engine bell or making other signal of approach. The deceased was not a trespasser, or mere in the use of the