under said rule to punish such person for refusing to obey thEl subprena. A power in the circuit .ap':lexaminer or a master to take testimony, beyond the jurisdiction of the court which appointed him, would not be·very· useful unless. the COUl't within' possessed also the power to compel the attendance of witnesses before such officer; Rule 78, ,which was' passed under the generalauthority of the court to prescribe "the modes of taking and obtaining evidence" to be used in equity suits,recogpjzes such power. I find that said Steward has been guilty of contempt, but, as the object of the hearing the opinion of tpe c.onrt upon ·thequestions of law, I shall not Impose a large fine; but I direct that he pay,as a penalty for said disobedience, the costs and the disbursements pertaining to the disobeyed subprena, and to this proceeding for contempt, to ,be taxed and allowed by the clerk.
MINES '&'ND'MINING--CLAIllS-REcdin'.,:uiLoCATION-,-REV. ',ST.rr.
claim by the employes oftha 'claimant; there the minmg district requiring a record oUheJo9ation. Subsequently thll claim was relocated by theowiler so as,to cqnfoJ;m to the r,equiremept$ofthe act of congress. Held-that. as the-re was a real locatioilofthe'c1a:iD1 by the employes of the claimant,his title dated back to the firSt location.' ," 8.,;8.urJil...,..WHAT 010AIMANT ENTJ;TIJED TO"",,,Tm!lsPABs-DAltAGES-REv.,ST. U. S. § 2822. " , . . " By ,Rev.'St. U. ,S; ;t11e 1,ocator of a mining claim is entitled to hold' and'enjoy the ''Profitshicluded within the; boundary lines of his claim. and, iUn possession, of the claim in person oJ; ,by agent, anyone ,,!ho e1;1ters upon and , lIable In damages asa trellpasser. ,'
"f .,.: " " .,
B. § 2324.' A record made in a memorandum book'of the location of, a placer mining claim, without designating any natural Q,bjeot or monument, or any designation OJ; work. by ",,1).ich t1).e placer claim could be identified. the memorandum' book being, retoJn.ed· in the possession of the locator of the claim; heltl'to be not in compliance with section 2824. Rev. St. U. S., and of 11Q legal force, 8S· a recorc;l.. " ,,,,: . .
At the thrie of the locatio'n at a qpartz
i.EsTOPPEL:-AmnssImr'IN" RECEtl'T-ONE EMPLOYED To LOCATE MINING . CLArMS...;,.EMP1.01l'E:B'S LOCATION PmOR TO .HIs OWN. '
1.- · t
FULLER- fl. HARRIS·
.G.N$wTmAL:'-NEWliV-I)tSQOvERJll]) EVU>ENCE-EVIDENOE AVAILABLE BEFORE TRIAL. .
W,4ere J,t appears, from tqe filed uponI' motion for a new trial the ground of newly.discovered evidence. that the new evidence proposed IS the same evidence as that introduced at the trial, and CElrtalll sought to be introduced were available to the party motion as evidence at the trial, the motion will be denied. . .
InEquity. DAWSON,J. This action was brought in June, 1885. PlaintiffFul'" ler alleges iil, his complaint that in August, 1880, he hired the ant, Harris, and one Joseph Juneau, to prospect and locate mining claims for him; that defendant and said Juneau did on the fourth day of October, 1880, discover and locate.what is known as the "Fuller First," in Silver. Bow basin, near the, town of Juneau, and that subsequenUydefendant, Harris, located a placer mining claim the quartz location of plaintiff. Defendant's answer was a general denial. A ternporary:injunction was granted by my predecessor,. and made re:turnable to the May term, 1886, of the district court. . day of May, 1886,in thedistl.'ict A trial was had on the court, and ajury impaneled to find certain facts, to-wit: Was the Fuller First:(theqdartz lode) located prior to the location of the placer I):line located by Harris iIi his own name? and the value of the ore taken: by, . Harris from 'that portion of the placer claim which overlapped the 10cation. : The jury found. by their 'Verdict that the quartz lode was first Joqated,andthat plaintiff Fuller had been damagedS7 ,200 inconse'" 'quenoo of Harris operating the, placer mine during the years 18.83 and 1884; whereupon the court rendered a decree divesting defendant Qfany 'Claim or title' to that portion of his: placer claim which tiff'.s quattz'lode, made the injunction perpetual, and rendered judgment against defendant for $7,000. . ,': ·Defendant now files his motion asking that the decree and judgment be set aside, and he be granted a new trial on the ground of newly-dis,'" fraudulent concealmentofmaterial.factab(1the j)laintiff,and the commission of perjury by Joseph Juneau, who testined as a witiness on the trialof this cause. Beforedisoussing the merits of, the motion, it may not be amiss to 'i>riefly review the evidence. The proof was quite convincing that in Au'gUst, 1880, defendant and:Juneau were outfitting at Sitka, and started on a prospecting tour ,under a contract in the name of one Pilz, but Fuller -furnishing the supplies. On the fourth day of October, 1880, they dis:covered and located a quartz ledge in Silver.BoW' basin, 1,500 feet in leng'thby 800 feet in width, and mimed it the "Fuller First." Subse-quentiy, on the twelfth day of October, Harris arid Juneau located a placer miningclairn (the richest portion of whioh overlappedtM "Ful-lerFii-st")in·their own name. Juneau seems to have diSpOsed of his interest, and, by a system ofconveyances 'peculiarw mining camps, his interest is now vested in one WillialJ'ls.Pilz disposed of his interest ,in the quartz location (it to the plaintiff Colemt.n,:!who,
upon motion, wRsmade aparty plaintiff when the above facts were disclosed, in the progress of the, t r i a l . . ' . The defendant, Harris;'claims that he and Juneau, upon the discovery of the' quartz ledge which was located in the name' of and for Fuller, in the presence of three Indians whO could neither speak nor understand our language, held an election, under the provisions of the act of congress of May 10, 1872, (section 2324, Rev. St. ,) at which he (Harris) was elected recorder for the mining district, which he then "christened" Harris Mining Districij":alld made it record 'of the location of the placer clitim, dated on the fourth day of October, 1880. While it appears from his pass-book in which the record was made that the Fuller First was located on the twelfth .c!'ayof October, 1880; Joseph Juneau testified at the trial that he and Harris looated the quartz lode (theUFuller First") on the fourth day of October; arid the placer clain:f!on the twelfth day of October, overlapping the quartz lode, aIidthatHarris changed the record-accordingly. The evidence of Juneau is· materially strengthened by' the circumstance of Harris having given Fuller a receipt for his wages earned while prospecting, in which he certified,over his own signature, that the quartz lode designated as theUFuller'Firirt'1 was the first location in Silver Bow basin., 1t appears the evidence and circumstances that both Harris and . Juneau acted in bad faith, and abused the confidence reposed in them by Fuller, and, but for the fact oHheir subsequent disagreement,.the real fadt oftae fraudulent altetatioriof the record might never have been known. Harris and J uneau make most bitter and malignant charges against each other, but, upon a careful examination of theoase, r may well doubt if either of them is the unconscionable reprobate which each would make the other appear. It is indeed sad that two men, who were 80 closely allied in the daring and hazardous enterpl1ise of extorting from the bowels of the earth a fortune, should now invade the vocabulary of acrimony in searoh Of epithets with which to blaokeneach others' oharacter, and transmit to their offspring an inheritance of dishonor. ,The reoordmade by Harris in his pass-book was by no means a compliance with the act of congrea.sof May 10, 1872. While thtl act ex:tended many favors to and aimed tofacilitllteminers in the enterprise of locating, and establishing titles,to the mineral lands of the United 'States, still it requires certain formalities. The miners of each mining district may make regulations, but ,they must not be in conflict with the laws of the United States., One of the requirements is that the location must be distinctly marked on'the ground. so that tlie boundaries can be readily traced, imd the, act requires that all records of mining claims shall contain the name ornamesofthe locators, the date of the location, and such So description of the claim or claims, by reference to some nat·ural object Of permanent monument, as will identify the ' To say nothing ahqut the absurdity 6fthe election at which Harris claims to have been elected recorder, it requires but a. glance at his memoranda to see, that theenfioy made by him in relatio'n to the placer mine location wholly fails'to comply with the act of congress. It begins nowhere and