('...osts ca:nonlybe recovered for the fees of a witness in a civil suit within the limit of his compulsory attendance under a writ of subpoena. It need not, of course, be further said that even such fees be recOvered as costs where the successful party has actually settled· with the witness for a less sum, when, of course, only the amoUJlt paid,· or perhaps agreeed to be paid, would be the measure of the· recovery. Let the costs for the fees of these four witneRses, therefore, be according to the principles of this opinion, and it is so.ordered.
TYLER MINING CO. v. SWEENEY et al. (01rcuit Court of Appeal!!, NInth Circuit.
Januar,y 16, 1893.)
The Tyler M. Co. applied for a patent to the Tyler mining claim. The Last Chance M. Co. protested against such application, and brought suit to determine the right of possession to so much of the surface ground as was Included In the conflicting locatipnB of the Tyler and Last Chance clalIns, lUI. $Own upon the diagram In the opinion the court. The Tyler M. 09". after appearihg and· Dla.klng a defense to sald suit, withdrew its open court, and Judgment was entered for the Last Chance M. Co., recitfug the priority of its claim. Subsequently the Tyler M. Co. out from its original location a certain portion thereof, inclUding the portion dese!iped. In said judgment, and thereafter. bJ;Ought an ejectment l!uit embraced insald judgagainst. thl}. Last ·Chance ¥. Co. for. the. grOUild ment. Held, that the judgment in the prior suit was not res adjUdicata as to the priority of the Last Chance location, and that it was conclusive only as to the'rlght of possession to the triangular piece of ground involved in that suit;; I; BAME""'"TP - RIGHT TO FOl<LOW· DIP..,.- ABANDONMENT OF PART OF that the Tyler withdrew its answer in the prlor suit, and al. lowed tl1e Last Chance to obtain judgment therein by default, did not have the efi'ect.ofchanglug the TylE"r locatiOn to :l. five-sided figure, so as to destroy thei pal'all('lism of. theloeatlon, as required by section 2320, Rev. St.; or to preveIj.t the Tyler cOJllpany from thereafter claiming its end line to be at a . let1i Qut· the ground in dispute in the former suit; or to deprive it of the right to follow the dip of its lode beyond its side lines, as provided byiiectlon 2822; Rev. St. A locator of a mining claim may abandon a portion of hiS orlglnal location without forfeiting any rights he may have to the balance of. the claim.
i· . ·.. .
JUDGMENT-J,'tES JUDICATA-CONFLICTING MINING CLAIMS.
SAME'-LoDE OROSSING SJDE LINES.
Under R(lV' St §§ 2320, 2322, the owner of a., mining claim located appr()xlmately lengthwise of a lode, and having parallel end lines, may, it the apex passes out of the claim· across a side line thereof, follow the dip beyond the side line, the same 8S it ano original end line had been drawn at such crossing parallel to the other end line. King v. Mining Co., (Mont.) 24 Pac. Rep. 200, approved.
SAME-LOCATION OF CLAIM ACROSS THE LODE.
. When a claim is looated along .. lode, and its owner's right to follow the dip beyond the ]fnes conflfcts with the right of an owner of a claim
TYLER MINING CO.
located across the lode 00 the portion thereof actually within his lInes, the claim having priority of location should prevail
In Error to the Circuit Court of the United States for the Distlict of Idaho. Reversed.
John R. McBride and Albert Allen, for plaintlfl in error. W. B. Heyburn, for defendants in error. Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge. HAWLEY, District Judge. This is an action of ejectment to recover the possession of certain mining ground situated in Yreka mining district, Shoshone county, Idaho, and for damages. It was brought against several defendants, corporations and individuals. ,The writ of error to this court, however, only involves questions in dispute between the Tyler Mining Company, plaintiff in the court below, and plaintiff in error here, and the Last Chance Mining Company, defendant. There are 43 specific assignments of error, consisting of exceptions taken to the rulings of the court in admitting or rejecting testimony, and to the giving and refusing to give certain instructions. A proper. determination of certain legal principles applicable to the questions presented will settle all the points in controversy. The following diagram will explain the location and situation of the respective mining claims:
From' the Tyler location was made on the 20th day of iil the form of parallelogram, as by th,e statute-oftP-e States,c.1aiming 1,500 feet in length and 600 feet in width of the Tyler lode; that p;n the 19th day of April, 1887, the Tyler Company made application for a patent to said ground; ·,that the Last Chance Company protested against said application, and in due time brought suit in the" territorial court to the ,right of possession to such portion of the surface ground' as is within the lines of the triangle on the diagram in the 80utheast corner of the Tyler location, including about one acre of ground; ,that in thll:t suit the Last Chance Company alleged, a:m.,Olig other things, that the Last Chance claim was located claim; that after two trials, of said case without prior to' the any, agreeDlent being reached by'the jurY, the Tyler Company with,drewits answer in open court, and appeared no further in the case; that' thereafter ,the Last Chance, Company proved up its claim, and obtained judgment for the tri:mgular piece of grQ'und without costs, the judgment reciting the facts "that the Last Chanoe Mining Company ,. · · is the owner of; and by virtue of a valid locatiOn of a mining claim, called the 'Last' chance,' made on the 17th day of September, A. D. 1885, · · · il 'entitled to the possession and right tif possession of," the triangular piece of ground; that, after the Tyler Company withdrew' itsltnswer, it left out from its description of its nrtning location ilie'42S feet 6 inches at the eastern end of its location; and, there being no other contest to its application for a patent, it entered the remainder of its claim, and received from the receiver of the land office a duplicate receipt showing the entry. The Tyler claim, as described in the Complaint in this action, is for the ground thus entered, to wit, for 1,071 feet 6 inches in length and 600 feet in width, containing an area of 14.77 acres. The complaint alleges "that a large vein, lode, or ledge of quartz rock in place, bearTyler lode mining claim so owned ing silver and lead, is found by the plaintiff. That the same, in its longitudinal course or strike, passes into the said Tyler lude mining claim through the 80utheasterly end liIle thereof, and extends through the said mining claim in a northwesterly direction, and lengthwise of said, claim, and passes out of said claim through the northwest end line thereof; and that the top or /lpex of said vein, lode, or ledge lies throughout the entire length of said claim, inside of the surface lines thereof, as aforesaid, extended downward vertically. That said vein, lode, or ledge in its downward course departs from a perpendicular at an angle of about forty' degrees from the horizontal · · · in a southerly direction, and that the general strike or course of said lode is nearly or qnite\ coincident with the surface lines of said claim; and that by reason of the foregoing the plaintiff is now, and at all times hereafter mentioned has been, the owner of and entitled to the exclusive possession of said vein, and so much of said vein, lode, or ledge as the top or apex whereof lies inside of said surface boundaries as aforesaid, throughout its entire depth;" and that defendants have unlawfully taken possession of said vein, lode, or ledge in its downward course, and have been unlawfully extracting and removing the ores
TYLER MINING CO. II. SWEEN:EY.
therefrom, etc. The defendants claim that the lode upon which they are working is theirs; that the apex thereof is within their location, and that they have lawfully followed it on its dip into the earth. 1. Was the judgment in the territorial court conclusive between the parties as to the date of the location of the Last-Chance claim? This question is presented in various fOrIDs. The court admitted the judgment in evidence against the objection of plaintiff. The plaintiff thereafter in the course of the trial, offered to prove (1) that at the twe said judgment was rendered it was agreed between the respective parties thereto that the Tyler Company should withdraw its answer in open court; that the judgment was to be simply in favor of the Last Chance Company for the triangular piece of ground, and that the Tyler Company would abandon all right to it; (2) that the notice of the Last Chance claim was not posted upon the ground until the 22d day of September, 1885, two days after the location of the Tyler claim; (3) that there was no discovery of any kind of rock in place bearing any precious metals, upon the Last Chance claim, or within its boundaries, until long after the location of the Tyler claim; (4) that the boundary stakes .of the Last Chance claim, instead of being as marked out on the map, stood some 1,380 feet further to the east, and that there never was any amended location of that claim, or change made in its boundaries until the survey of the Tyler claim in 1889. These offers, with others of similar import, were refused by the court, and plaintiff duly excepted to each ruling. The court, of its own motion, upon this point in· Btructed the jury as follows:
"PlalntUf shows by evidence undisputed that Its Tyler claIm was located on the 20th day of September, 1885, and the defendant Last Chance Company shows by the evidence of a judgment, which cannot be disputed In this action, that its Last Chflnce claim was located on the 17th day of September, 1885, from which it follows that the Last Chance claIm Is the older. Now, upon that point I repeat to you that, so tar as this trial is concerned, and 80 tar as you have flny consideration of the matter, the dates ot those two cla.lms al"e fixed by evidence you cannot consider further."
Were theBe rulings of the court eIToneous? The general principle that a judgment of a court of competent jurisdiction between the same parties, and upon the same issues, is, as a plea, a bar, or, as evidence, C(inclusive, is well settled. Whenever a cause has been once fairly tried and finally determined, the same questions, as between the same parties, certainly ought not to be tried again. In a proper ease this rule should be strictly adhered to. McLeod v. Lee, 17 Nev. 112.1 But when the second suit is upon a different cause of action, and there is a dispute as to what was involved in the first suit, inquiry should always be made as to the real question actually litigated and determined in the first suit, and it hi only upon that question that the judgment can be held conclusive in the second suit. It must appear either upon the face ot the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. Cromwell T. Oounty of Sac, 94 U. S. 353; Russell v. Place, Id. 608; Riverside
'28 Pac. Rep. 124.
v. Townshend, ;];20 m. 18,9,N. E. Rep. 65; City of Chicago v. 120 1ll.459, 11 N. E.Rep. 899; Hymesv. Estey, 116 N. Y. 509,.22 N. E. Rep. 1087; Legrand v. Rixey's Adm'r,. 83 Va. 862, J3·8.E. Rep. 864; Foye v. Patch,132 Mass. nOr Solly v.Clayton, 1:2 Cplo. 30,,,20 ,PM. Rep. 351; Rickerson v. City of Mexico, 58 Mo. ()2;OaDlpbell v.Rankin, 99 U. 8·.261· . The. prior suit iIleeessarily' involved the question as to which 6Qmpany had the better right. to the triangular piece of ground. No. part of that ground is involved in the present suit. If the prior· suit had been contested, it might or might not have involved t,hewsue 8El to the·; dates of the respective locations; but, the judgment having beeu entered after the issues ra.ised by the answer of the Tyler Company were withdrawn, the question as to the dates of the respective locations cannot be said to have been necessarily, or at all, adjudicated. Finnegan v. Campbell, 74 Iowa, 158, Rep. 127. As between the Tyler and the Last Chance 37 N. Company. there was no longer any issue as to their respective rights to the triangular piece of ground; but the Last Chance was required to prove its right of possession to that ground in order to establj,sh its rights thereto as against the United States, and in doing tb.is it was neeessary for it to show that it had a valid mining location. The date when such location was made was immaterial All that:was necessary to prove was that it was made at any time. prior to the 'COmmencement of that action.' It is true that the judgment recites the fact that the Last Chance location was prior to the Tyler, but the judgment is conclusive only in respect to the facts necessary to uphold it, and, if the fact of priority was iniinaterial to the issues upon which the case was tried, and the controversy did not turn. upon it, the judgment will not conclude the parties in reference to such fact. People v. Johnson, 38 N. Y. 63. InHughes v. U. S., the court said:
"In order that a judgment may constitute a bar to another suit, It mURt be rendered In a proceeding between the same parties. or theIr prlvle". and the point of controversy must be the same in both cases, and must be determined on Its merits. If the first suit · · · was disposed of on any ground' which did not go to the meritB of the action, '\;he judgment renullred will prove no bar to another suit." 4 Wall. 237. :
When the Tyler Company withdrew its answer, it thereby abandoned its right to the ground in dispute, and thereafter the question as to when the Last Chance was located became wholly immaterial to any further issue in the case as between the Tyler and the Last Chance. The right of the Tyler to abandon this portion of its original location cannot be questioned. A person locating a quartz mining lode or claim under the laws of the United States is entitled to locate. 1,500 feet in length upon the lode, if the apex of the same is within the surface boundaries marked out by him. He cannot claim any more; bUt, if any controversies arise as to any portion of the ground, he may abandon his rights to such portion of the claim as may be .in dispute without forfeiting any rights he may have to the balance of his claim. Litigation is expensive. Compromises are favored. Agreements to withdraw from litigation to save expense should be sanctioned and encouraged. A litigant
TYLER MINING CO. V. SWEENEY.
hag the right to "buy his peace." In Cromwell v. County of supra, the court said:
"Various considerations other than the actual merits' may govern 'party In llringing forward grounlls of recoveq or defense ,in action, which may not exist in another action upon a different deIlland; lil\lch as the smallness of the amount, or the value of the in ,con,troversy, the difficulty of obtaining the necessary evidence. the expense of the,litigatioll, lUlfl bis own situation at the A party acting uponconsideratiop.s lil>.e ,these ought not to be precluded from contesting in a subsequent action other demands arising out of the same transaction. A judgment by default only admits, for the purpose of ,the action, the legality of the demlj.lld orc.laim in suit; it does not make the allegations, of the declaration or complalnt evi, dence in an action upon' a different claim.'"
The Tyler Company had the undoubted right to sell the eastern 417 feet of the Tyler location to the Last Chanee for any nomiriltl sum it pleased, to avoid the litigation as to the triangular piece of ' ground, without endangering its title to the other, portion of its claim. What difference does it make whether it sold' the ground or abandoned it? None whatever, so far as the principle that' is involved in this branch of the case is concerned. In either event the Tyler Company would 'have the right to show that at the time the judgment' was rendered it had withdrawn its answer, and had no right, title, or interest in or to the particular piece of ground involved in that controversy. The judgment was conclusive only as to the right of possession to the triangular piooe of ground volved in that suit, no portim! of which is in controversy in this suit. The rulings of the court at variance with the views we have expressed were erroneous, and are of such a character as entitles the plaintiff to a new trial. i ' 'r, 2. The questions presented upon the 'other branch of the assigh' ment of errors relate to the rights of a locator under the mining laws of the United States to ,follow his lode in its depth beyond the side lines of his location. Defendant contends that the claim of the Tyler 'Company is a five-sided figure, and that it has no parallel end lines, and hence has no extra lateral rights to follow its lode Of:' vein on its dip outside of its surface lines; that the Tyler Company must follow the lines of the original location, leaving out the triangular piece of ground; that the parallel end line drawn on the diagram at the point where the lode leaves the southerly side line of the Tyler cannot be considered as the easterly end .line of the Tyler claim; and that, :under the principles announced in Iron Silver Min. Co. v. Elgin Min. & Smelting Co., 118 U. S. ·196,. 6 Sup. Ct. Rep. 1177; Argentine Min. Co. v. Terrible Min. Co., 122 U. S. 478, 7 Sup. Ct. Rep. 1356; and Montana Co. v. Clark, 42 Fed: Rep. 626,-the Tyler Company is not entitled to follow the lode in its downward course beyond the side Jines of its location. 'l'he plaintiff, on the other hand, among other things, contends that, as the Tyler Company coV'ered the apex of its vein by a proper location along the general course of the lode, it could not be deprived of the benefit of its right to pursue its vein on· its dip beyond the surface side lines "because a prior locator has taken possession of an adjoining section of the vein, and has covered the portion of v.54F.no.2-19
:\\lhich the apex is in the former's location by his surface linei'l." This contention is perhaps made clearer by a further quotation brief:, . . , , .'
",Altgtltlllngcthat the IJast' Chance i$ the older location, its discovery lB' on of oui-own, instead of locating along the vein, as our·cl81J;D. Is located; it located across the lode, and seeks to cut us out of thav!llldhat we may have located properl;raccording to law, by extendltlg itS SUlelliles over' gl'QUild whiCh la underneath the apex in ours."
I.' " . ,
'These: 'contentions of the respective counsel, as above stated, are
tions.· rTllis our h.and, a careful consideration, not only oftheexpfe8s pr@:vlsiQ!OJl of the statutes. in ,question" but ,also of the decisioJls beaJ.ltngimore,or leSSupo:n the, points at issue in this ;c;!se.} 'I,';;.'l.l'l;';i ofthe.:UnitedStateS.W!ere passed'upon the theory that the rl(jdes 'and, vewsl (jf mineraI.bearing rock.' in their general cQul'sercouIdbe readilYr¥certained ,by the locators, and that, by QJ:clainI in· the form ()f a parallelogram 1,500 feet in length an4 6QO would, be no difficulty of including the lodewitlUnthe surlaceground so located. But the facts .are that lodesf,)l'.veins in the mineral regions do not always crop out upon the smrfMeof the ground, and it frequently happens that when the apex of the lodes- does appear upon the surface that it is only for a wort distance, and in snch cases it is often impossible to determine the genemu eourse of the lode for months, and sometimes years, after the location is made. When the course of the lode is ascertained at the PQwt of discovery, it is by no means certain that the same course will be maintained for the distance of 1,500 feet. It is liable to in. its cour$e as to pa$s, through the side lines of the 10catioD,befOre either of the end lines, if the point of dis· covery,was near the centeJ.'of the and where the course of the lodeiie not,easilyaacertained the location is liable to be made in the w;nong !tJirection,and future developments prove that the lode in its through ,tl\e side lines at almost right angles with the$lde,Jines. Itw,ill thus be seen that great difficulty may of· ten ari,se inrilnaldng locations under the law so as to secure the lode fOr 1,500 feet inleng:th,within a surface width of 600 feet, which is in all the principal object sought to be by the locator: )3ience it follows in some instances that the locator makes Jiis location where the lode crops' out upon the surface in various shapes\aud fo:r.pJ.s" varyingfroD;l.a plain parallelogram, which is required' by,law,to an isoscelestriangle,as in Montana Co. v. Clark, 42 Fed. :sep. 626, or a curve, in the shape of a horseshoe, as in Iron Silver ,Min. Co. v. Elgin :MiD. & Smelting Co., 118 U. S. 196, 6 Sup. Ct. !Wp.11,77.. Where the is properly made along the course of :the 10dei:n,tlJ,e form ofa parallelogram, and the lode extends within the side lines .from one end line to the other, the law declares in plain terms w;b.atthe.rights of the locator are, and there is nothing left fl>r the conrtJf:to construe.
TYLER MINING CO. v.,SW£ENEl".
After making tlle locatlon 'and marking the linea,-a!! required by the statute of: the United States, the lPcatol"l!l rights are to be deter· mined by the lines of his surfacelocationrand theSe ,lines cannot be changed so as to' interfere with the' rights of othi:!r persons. Tl:fe locators have "the exclusive right of possessioD,iand enjoyment of ' all the surface included within the lines of their and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or'ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be con· fined to such portions thereof as lie between vertical planes drawn downward as above described through the end lines of their loca· tions, so continued in their own direction that such planes will inter· sect such exterior parts of such veins or ledges." Rev. St. U. s. § 2322. Where the location is made in the form of an octagon, or a curved figure in the shape of a horseshoe, it will readily be seen that the rights of tl1e locators are different. The same principles of the law, and the construction of the statutes of the United States as applied to locations made in the form of a parallelogram, cannot be extended to such irregular and peculiarly shaped locations. No general rule can be stated that will be directly applicable to every imaginable form of location that may be made. In Iron Silver Min. Co. v. Elgin Min. & Smelting Co., 118 U. S. 208, 6 Sup. Ct. Rep. 1177, the court said: "Under the act of 1866, (14 St. p. 251,) parallelism In the end llnes of a 'sin-face location was not required, where a location has been ma,de since the act of 1872, such parallelism Is essential to the existence of any right In the locator or patentee to follow his vein outside of the vertical planes drawn through the side llnes. ms lateral right, by the statute, Is confined to such portion of the vein as lies between such planes drawn through the end lines, and extended In their own direction; that Is, between parallel vertical' planes. It can embrace no other portion."
It is upon this general language that' defendant relies in support of his contention. The language of the opinion of the court in that case must be considered with reference to the particular facts of the case and to the questions presented to the court for its decision. The exterior lines of the Stone claim formed a figure resembling a horseshoe. As a matter of fact the owners claimed that the loca·' tion had end lines, and an examination of the diagram on page 203, 118 U. S., and page 1181, 6 Sup. Ct. Rep., shows lines that are parallel in their general direction; but the court said that the end lines "marked on the plat as end lines are not such," and, by reason of the peculiar surface of the Stone claim" held that the defendant in that case could hot follow the lode exist· ing therein in its downward course beyond the surface lines of the claim. The facts of that case were entirely dissimilar from the case at bar. Here the location of the Tyler was properly made in the form of a parallelogram along the course of the lode or vein. lode extends from the northwesterly end line for II distance of nearly 1,100 feet within the side lines of the surface location, and then so
changes its,CQurse as to. cross the southerly side line into the Last Chance IQcation. The learned justice who wrote the opinIon in the horseshoe case, when he said 1JRat the parallelism of the end lines "is essential to the existence of any right in the locator or patentee to follow his vein out-side of the vertical planes drawn through the side lbles," did not mean that it was essential to such right that the lode should extend in its length from one end line to the other of the locatio:Q., If the lode in question, instead of extending into the Last QJlanee location, had, abruptly)broken off within the surface lines ofdlbe' Tyler near the point where in fact it crossed the line, there could certainly be no question as to the right of the Tyler to follow the lode or vein .in itl!l downward .course for its entire depth outside of the vertical planes drawn through the side lines. The fact that it continued its course and crossed, the side'line does not in any mannerchange ,this,prinoiple. In either case the locator is entitled to the same righte. In such cases the end lines are not necessarily those which are marked on the ground as such. An end line may be drawn at the 'point where the lode abruptly terminates within the surface'lines, or 'at the point where the apex of the lode crosses the side line of the surface location. This, upon principle, justice, and authority, it seems to us, is the only reasonable construction that can be given to the l!'Itatute. and in whatever manner, this poiilthas been presented' by any similar facts, the rulings of the courts havebeeu' SUbstantially in acordance with the we have exp-ressed;Golden ,0; & S. M. Co. v. Cable Con. G. & S. M. Co., 12 Nev. 313; Doe v. Sanger, 83 Cal. 203, 23 Pac. Rep. 365; Kahn v. melegraphM. Co., 2 Utah, 174; King v. Amy, etc.; Min. Co., 9 Mont. 543,24 Pac. Rep. In the case last <iited the lode crossed the surJines without reliching either end line as marked on the surface, liel<J. a lode or vein crosses the side line of a location, the strikEds.terminated by the plane of such side line, and the; mght to follow the i vein oli its dip is determined by a vertical plane, parallel to the end lines, drawn downward, and which takes effect at ;thepoint where the ape:x: intersects the side line. The court, .in its opinion, alter reviewing the Flagstaff Case, 98 U. S. 463, the' Argentine Case, 122· U..S. 478, 7 Sup. Ct.Rep. 1356, and the Horseshoe Case, 118 U.,S. 208, 6 Sup. Ct. Rep. 1177, and pointing out the differeJ,Wes existing hetween them and the Amy Case, and stating tlw variQus contentions of counsel, .said:
"The law that the plane of the end line shall operate as a boundary to the dip, and so operate at the point where the strike Is ended. If the strike reached the original end line as in a regular location, the bounding plane would there operate upon the dip.' If the strike, by reason of its going out of a side lin!:!,· falls. short,ot reaching ;the original end-line plane, that plane must take effect where the strike in fact ends,-that is, at a point on the side line; ... · · and, if it . takes effect there, its parallelism must not be destroyed. We therefore have the bounding plane operating at the point where the apex, .leaves the north side line, and operating parallel to the east end line, and parallelism as originally marked on the ground. It is npt llo ne:w line or plane, or one judicially constructed. It is determined by th&'locatlpn lines on the surface. There is never any readjustment according to subsequent developments. The parallelism of the end-line planes is fixed by locatIoJi,:and ,never varies. The point of departure of the strike from the
TYLER MINING CO. '/:. SWEENEY.
surface lines fixes the point where the end-line plane is to perform its tunc1ll.ons, whether that departure be at an· end line, as contemplated by the statute, or whether accident has fixed it at a point on a side line-PI King v. MIn· log Co., 9 Mont. 575, 24 Pac. Rep. 200.
In Doe v. Sanger, supra,the location was not of exact width, and the end lines, as originally marked on the surface, were not precisely parallel with each other. The court, after reviewing the case of Iron Silver Min. Co. v.Elgin Min. & Smelting Co., held that a substantial compliance with section 2320 of the Revised Statutes of the United States, requiring the end lines of each claim located upon a vein or lode to be parallel, is all that is required; that the object of the statute is sufficiently met to sustain that right if the location is made lengthwise of the lode or vein in a quadrangular shape, notwithstanding the fact that the end lines are not exactly parallel, and that the locator has the right to make the end lines parallel, where such change does not interfere with the rights of other persons; and in the course of the opinion it is said that "any different rule would be a disgrace to justice, and an impeachment of the common sense of lawmakers." The fact that the Tyler Company did not contest its rights to the triangular piece of ground mentioned in the first branch of this case, and thereby allowed the Last Chance to take that portion of its original location, did not. have the effect of depriving the Tyler Company of its right to draw its end line so as to leave out the triangular piece of ground at or near the point where the lode actually crosses its southerly side line, as shown in the diagram. This would be its right independent of the former controversy, and having, to all intents and purposes, abandoned the eastern or south-. eastern portion of its original surface location, as hereinbefore stated, it lost no rights to the other portion of its ground, including the cou,rse of the lode within its surface boundaries. This change did not in any manner interfere with the property rights of the owners of the Last Chance claim, or of any other of the locations in'Volved in this suit. From the views we have exj}res."led and the conclusions we have reached it follows that the contention of the defendants' counsel cannot be sustained. The contention of plaintiff's counsel is equally untenable. In the Flagstaff Case the court, after referring to the statutes of 1866 (14 U. S. St. p. 251) and of 1872, (17 U. S. St. p. 91,) said:
"We think that the intent of both statutes is that mining locations on lodes or veins shall be made thereon lengthwise, in the general direction of such veins or lodes on the surface of the earth where they are discoverable; and that the end lines are to cross the lode, and extend perpendicularly downwards, and to be continued in their own direction, either way, horizontally; and that the right to follow the dip outside of the side lines is based on the hypothesis that the direction of these lines corresponds substantially with the of the lode or vein at its apex on or near the surface. It was not the intent of the law to allow a person to make his location crosswise of a vein. so that the side lines shall cross it, and thereby give him the right to follow the strike of the vein outside of his side lines. That would subvert the whole system sought to be established by the law. If he does locate his claim in that way, his rights must be subordinated to the rights of those who have properly
located on:t,he IQde. Their right to,follow the dip outside of their side lines with by hlm. His right to the lode only extends to so If he has located crosswise of the much ,0f,t!W lode aslJis claim lode, and his claim is only one hundred feet wide, that oue hundred feet is all he has a right to."
beuch: cases "the side lines of the location are really the end the claim, considering the direction or course of the lode at the' 'surface." Mining Co.v. Tarbet, 98 U. S. 467. This decision is quoted 'With approval and followed in Argentine Min. Co. v. Terrible Min; Co.; 122 U; S. 478,7 Sup. Ct. Rep. 1356. From the, diagram in this case it appears that tq.e lode in its course lengthwise crosses the side lines of the Last Chance location at nearly right angles, and, under the rules laid down in the decisions of' the supreme court of the United States, the side line. of the location of the Last Ohance as marked on the surface of the ground' are to be treatedaa its end lines, and the owners thereof would have the exclusive right of possession and enjoyment of such portion of the lode throughout its entire depth, the top or apex of which is inside of the surface lines of the location, as lies between vertical planes drawn downward through such end lines. .It therefore appears that both locations were made in such form and shape as has been recognized by the adjudicated cases upon these questions to entitle them to certain fixed and definite rights to follow' the lode in its downward courSe, and the rights of the Tyler Company and of the Last Chance Company in this respect depend upon the question of their priority. The court below, in its fourth instruction given to the jury of its own motion, after clearly stating the manner in which locations should be made under the law to entitle the owners to follow the lode in its downward course beyond the side lines of the surface location, said:
may thus follow its ledge downward. The burden rests upon plaintiff to show such facts, and, when shown, it would follow that the plaintiff would be entitled to so ' pursue its ledge, unless it comes in conflict with some prior locator who had also located a claim in such manner as the law w1ll justlty." "The plalnUfr claims that its Tyler location is located substantially according to such provisions and contemplation of,the law, and it results that it
The entiI'a instruction was correct, and the instructions requested by plaintiff in opposition to the last clause of the instruction above quoted were properly refused. The sixth instruction given by the court, defining the rights of a location made where the lode runs at right angles across the location, instead of along it, as in the case of the Last Chance, is directly in accordance with the views we have expressed; and it follows, therefore, that the instructions a.sked by plaintiff in opposition thereto were properly refused. Each company must, of course, prove that 1tl:'l location is a valid one, and that it was made in substantial compliance with all the essential provisions of the law, in order to entitle it to the rights given by the law; and, among other things applicable. to the controversy between the parties, it must be shown either that the apex of the lode is found within the surface boundaries of the respective locations, or that the lode was discovered therein prior to the rights acquired by the other party. The statute expressly
BRITTAIN fl. CROWTHER.
provides that "no location of It mining claim shall be made until the discovery of the vein or lode within the limits of the· claim located." Rev. St. U. S. § 2320. In cases of controversy where the right exists under each valid location to follow the lode in its downward course it necessarily follows that both locations cannot rightfully occupy the same space of ground, and in all cases where a controversy of this kind arises the prior locator must prevail, precisely as in cases of; like con· troversy between locations overlapping each other lengthwise on the course of the This is the rule as announced by the court below upon this branch of the case, and it is, in our opinion, sound; logical, and just, and is susWned by authority. Mr. Justice Field, in Argentine Min. Co. v. Terrible Min. Co., supra, in review· ing an instruction given by the circuit court, said:
"If there was an apex or outcroppllig of the same velli within the snrtace of the bOundaries of the claims of the defendant, that company could not extend its workings under the Adelaide location; that bellig of earller date. Assumllig that on the same' velli there were surface outcropplngswlthlli the boundaries of both cla1ms, the one first located necellBali1y carried the right to work the veln." .
For the errors in the rulings of the court with reference to the con· elusiveness of the judgment in the territorial court as to the priority of the' Last Chance location the judgment of the circuit court is reversed, and the cause remanded for a new trial
BRITrAIN et R1. v. OROWTHER et al.
(Circuit Court of Appeals, Eighth Clrcult. No. 173.
February 6, 1893.)
L FHA UDULENT CONVEYANCES-EVIDENCE-ADMISSIBILITY. To establish fraud in a transfer of goods. it is competent to prove every fact and Clrcwnstance tendllig to show a fraudulent purpose, includllig the debtor's acts, statements, and correspondence, in so far as they indicate fraud or want of consideration; also the kind, quantity, and value of the goods pm'chased preceding the transfer; the statements made to creditors as to his financial condition at the time of purchasing the goods; the . amount and kind of property he owned before his failure, and what disposltiOJ1 he made of it; and the debts he owed aftel' his failure, and when and for what they were contracted., and whether he paid any of these debts after disposing of his property.
SAME-KNOWLEDGE OF TRANSFEREE. A purchaser from It debtor selllng to defraud his such· knowledge as would put It prudent man upon
creditors Is bound by lliqulry.
SAME-CLAIMS OF WIFE.
Where It husband tells his wife that certain land of his shall be considered hers, but afterwards the husband sells the land, and invests the proeeeds in business, the wife cannot claim, as against the husband's crellitors, that the said proceeds are hers.
HUSBAND AND WIFE-WIFE'S PROPERTy-EARNINGS.
Under Cobbey, Consol. St. Neb. 1891, §§ 1411-1414, the earnings of the wife, . made whlle ezhc il! living with her husband, and engaged in no BeIia.rate business, are the property of the husband, and na ble to tlle eJa1mB of his creditors. '