FmPERAL BEP9RTER. ZOLLARS and another v. EVANS.
(Circuit Oourt, D. Oolorado.

October,1880.)

L

,MINING

CLAIM-REQ.UISITES OF TrTLE.-" On the public domain of the United States a miner may hold the place in which he may be working against all others having no better right. But when he asserts title to & full claim of 1,500 feet in length, and 300 feet in width, he must prove a lode extending throughout the claim."

2. Slu)[E-SAME.-The sinking of a shaft outside of the ground in dispute, and running drifts from thence to the ground in dispute, will not avail the plaintiff in ejectment, unless he can further show the discovery of a lode in such shaft, and the extension of the lode to the ground in dispute.- [ED.

D. P.Dyer and C. I. Thompson, for plaintiffs. S. P. Rose and Wells, Smith <i: Macon,for defendant. D. J., (cha,rging jury.) The groundin controversy

is ,claimed by plaintiffs as part of the Highland Mary IocatiQn. You have observed that it is but a sina.l1 of that lqca'tion, lying some from the discovery shaft, or 700 land eDl;braced within the of plaintiffs' and defendant's claims, or,the space covered . , by both claims. " It is stated by counsel, and perhaps it appear,s in ev,idence, tpat plaintiffs have another to the same ground, based the Highland Chief location, but they have not up that title in their pleadings, and they cannot rely on it in this action.. The only right in them which can be recognized here is that which may a.rise from the Highlan:d Mary location, and the investigation before you has been confined to that subject. It is not necessary to discuss at length the validity of the, Highland Mary location. It is enough to say that the plaintiffs have not shown any right or title to the premises in controversy, of date earlier than July 30, 1879; and their right at that time is to be determined upon several facts now to be stated. In the first place, did the plaintiff corporation, the High. land Chief Consolidated Mining Company, on that day or afterwards, and before the twenty-third day of September,

on,

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1879, take possession of the.Highland under the deed" from Jed. H. Basoom and, others,and' hold possessioii thereof at the last-named date? The twenty-third day of September, 1879, is the time the suit was brought, and, ih the attitude of the case on the evidence, the plaintiffs cannot recover, except upon actual possession at that time. There is nothing to show that John W. Zollars, who assumes the position of trustee to the corporation, was ever in actual possession of the property. The company appears to have been organized on the thirtieth day of July, 1879, and,of course, not being in existence, it could not enter into possession before that daYiso, that to possession, the question is whether after the thirtieth of July, and at any time before the twenty-third of September, 1879, and at the last-mentioned date, the corporation was in possession. If you find thatto be true, a further questionwiU' al'ise as to whether a lode was diseovered in the Highland Mary disc()very shaft, and such lode Mtends from that· discovery shaft to the grounds in controverSy; Oli the public domain of the United States a miner may hold the place- in which he may be working against all others having no' betternght. But when he asserts title to a full claim of 1,500 feet in length and 300 feet in width, he must prove' a lode' extending throughout the claim. I do not recall aIiy evidence to Bhow that any of the openings' in the ground iIi controversy were made prior to September 23; 1879. The Highland Chief people had sunk a shaft just outside of the ground in dispute, and in May of this year drifts had been run from that shaft into the ground in dispute. But I do not remember that any witness stated when those drifts were l'\ln, or when the tunnel which penetrates this territory was made. And if, in fact, those openings, or any of them, were made before the suit was brought, and the plaintiff corporation was then in possession of them, that fact alone would not enable the plaintiffs to recover the whole of the disputed territory. Such possession of those openings only, without the dis-

as

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PEDEBALBEPOBTIah

coveryof a lode in the discovery shaft, which extends from chence to the ground in dispute, would not be available beyond the extent of the openings. And the plaintiffs have not asked for less than the whole territory in dispute, so that you are advised that, in addition to possession in the plaintiff 'corporation on September 23, 1879, it must appear from the evidence that a lode was discovered in the discovery shaft of the Highland Mary claim, and that such lode extends from that point to the territory in controversy. On these points no remarks from the court are needed; but I, call your attention to one matter having some bearing upon the question whether the lode, assuming that there is one in the Highland Mary discovery shaft, extends from that point to tl..e ground in dispute. There is some question whether the Inineral found in the Highland Chief openings is of the same as that found in the Highland Mary discovery shaft, and one witness, if I am not mistaken, expressed the opinion that they were not the same. The difference in elevation of the two shafts and the points at which mineral was found, in connection with the topography of the country, seem to raise adonbt on that subject. If you are of the opinioD, from the evidence, that there are two bodies of mineral,separate and distinct from each other, one in the Highland Chief shaft and the territory in dispute very near to that shaft, and another in theIIighland Mary shaft, i1 will be So question of fact on the evidence whether the latter extends under the first into the territory in dispute. It is incumbent on the plaintiffs to establish these facts by preponderating testimony; and, in the absence of such testimany, YOu should find for defendant., If, however, those facts are established, the plaintiff may prevail,. unless defendant has shown a better title to the ground in dispute. And your attention will now be asked to the facts necessary to establish such better title. Much that has been said with reference to the Highland Mary location is equally applicable to defendant's location, which :he caUs the Elizaj that is to say, a lode must have been

ZOLL'ARS V. EVANS.

175

found in the discovery shaft, and the lode must extend from that point to the ground in dispute. Perhaps there is" some doubt here, also, whether any body of mineral or mineralized rock that may be called a lode' was found in the disc'overy shaft, and, if so found, whether the same body was exposed in the territory in dispute. Those questions are submitted to your decision on the evidence, and assuming that thepllHntiffs have established their right, as before explained to you, if you further find that defendant's grantors discovered a lode in the Eliza discovery shaft, and that Buch lode extends from thence into the ground in dispute, the q.efendant will prevail; because, as was before explained to you, plaintiffs' right cannot be of earlier date than July 30, 1879, and defendant, if his grantors made a valid discovery and location, dates back to 1878, long prior to the date of plaintiffs' title by possession. It is true that there is some controversy upon the question whether, at the time of the surveyof the Eliza, lode, inJuly,1878, the locators had sunk theirshaft .to the they claim to have found the lode; but, if they had not done so, they did in fact sink it to the point mentioned by September following; and if they then found it lode they could have advantage of it, as against all who had not. then an interest in the lode, in the same manner as if they had uncovered it before making their survey and flling their And if their location was completed by or before September, 1878, it antedates plaintiffs' title by possession in the same manner as it would if it had been completed in July of that year. In that view, the question as to defendant's tItle 'still discoverys4aft, remains whether a lode was. discovered and whether such lode extends from that point to the ground" in controversy. If the plaintiffs have established their title, as first' explained to you, and the defendant has not, established his title, your verdict should be for plaintiffs. .If the plaintiffs have failed to establish their title, or the defendl'f'nt has esta.blished his title, your verdict should be for defeAdaut. Verdict for defendant.

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176

FEDERAL BEfORTER.

DARLING,

Assignee, eta., v.

SAME

TOWNSEND

and others.

v.

WRIGHT

and others.

December 30, 1880.)

(Distric' Oourt, 8. D. NIYIJ) York.

1.

BANKRUPTCy-OFFER TO ALLOW JUDmfENT-PREFERENCE-OTHEll EXECUTIONS-ATTACKING ASSIGNEE'S TITLE OOLLATERALLY.

Where a creditor's petition in bankruptcy was filed on the seventeenth of November, and on the thirteenth and fifteenth of November, before their time to answer expired, the bankrupts had offered to allow judgments to be entered against them pursuant to section 385 of the New York code of procedure, in suits commenced by the defendants by' attachment, under which the sheriff had levied on the twenty-ninth of October, and judgments were immediately entered in accordance with the offers, and executions were levied on the goods and fixtures on which the attachment had bee.n levied, and the sheriff also held the goods, etc., under executions in favor of other creditors, levied before the defendants' executions, but after their attachments were levied, and tl,J.e defendants afterwards received on their executions the whole net proceeds of the sale on execution, the lien of their attachment giving them priority, under the laws of New York, over the earlier execution creditors, the property being in fact, and being understood by the debtors and by the defendants, to be of greater value than the amounts of said earlier judgments, and the defendants knowing at the time the offers to allow judgments were given that the debtors were insolvent, and that a proposition for a general assignment for the benefit of creditors had been made by them: HeZd, that the giving of the offers to allow judgment, followed by the levy of the execution, was a procuring or suffering of their property to be seized on execution by the debtors within the meaning of the bankrupt law, and that the assignee was entitled to have the levies set aside as preferences and to recover of the defendants the value of the property. Whether the same could be held to be preferences, if the property levied on had been of no greater value than the amount of the earlier executions, qU(JJre. Where the circumstances tend to show an intent to give and receive a preference, the failure to produce the testimony of the debtor, or of the alleged preferred creditor, as to the intent, heZd, strongly corroborative of the evidence of the intent to prefer. Evidence offered as to irregUlarities by the petitioning creditors in instituting and, carrying on involuntary proceedings i:p. bankruptcy, and the person afterwards made assignee in bankruptcy participated therein, heZd immaterial, in a suit by the assignee' to recover property transferred as a preference.

In Bankruptcy.