666'
FBDERAL REPORTER.
J'UPITER MINING CO. '11. BODIE CONSOLIDATED MINING CO.
(Circuit Oourt, D.Oalifornia.
March 12, 1881.)
JUPITER
06.
v.
BODIE OONSOL1l)ATED MINING 00.
667
thronghout its entire depth, the top or apex of which lies within the surface lines of the claim extended vertically downwards, to which no right. had at· tached in favor of other parties at the time the location became valid, although such veins or lodes may so far depart from a perpendicular a8 to extend of the vertical side lines. A location of ll. mining elaim must be distinctly marked on the ground so that its boundaries can be readily traced; but the law does not define or prescribe what kind of marks shall be made, or upon what part of the ground or claim they shall' be placed. Any marking on the ground claimed. by stakes, mounds, and written notices, whereby theboundari8B-c-an be readily traced, is SUfficient. 13. RIGliT OF SUBsEQUENT LOCATOR TO OBJECT. A subsequent locator has no right object that the first location was not sufficiently marked on the ground at the time of the location or before record.lng, provided that such first location was sufficiently marked on the ground before any valid subsequent location of the same claim. 14. OBLITERATION OF MARKS. After a location has been lawfully made, the right of the locator cannot be divested by the mere obliteration of the marks or removal of the stakes without his fault, he having performed the other acts required by the statute. H. As TO REcolm. The law of congress requires no record of a mining claim except in obedience to valid local rules or customs of miners; but when such local rules or customs require a record it must contain the names of the locators, the date of the location, and such a description of the claim, by reference to some natural object or permanent monument, as will identify the claim. Hut such natural objects or permanent monuments are not required to be on the ground located, although they may be; and the natural object may consist of any fixed natural object, and such permanent monument may consist of a prominent post or stake firmly planted in the ground or of a shaft sunk in the ground. If by reference to any such natural object or permanent monument the claim recorded can be identified with reasonable certainty, the record will be sufficient In this particular. otherwise not. 18. OBJECT AND EFFECT OF RECORD. The object of recording mining claims is to give notice to others desiring to locate in tIle vicinity. The language of the act of congress authorizing miners to make regulations" governing the location and manner of recording," im· plies that the act of location is distinct from that of recording, except where the regulations of miners make recording necessary to constitute a location; so that a location may be complete and vest the exclusive right of possession before any record thereof is made, unless recording is made an act of location, or one of the acts neceasary to constitute a location, by miners' rules or regulations. 17. FORFEITURE BY FAILURE TO RECORD. The right to a mining claim will not be forfeited by a failure to record the same, in the absence of a miners' rule or regulation providing for a forfeiture on that ground. 18. EFFECT OF AC'!'UAL NOTICE. In the absence of any miners' rule or regulation making recording a necesBary act or condition of a complete location, or providing for a forfeiture by failure to record, a prior location of a mining claim, without recording the
l't How
LOCATION TO BE MARKED.
668
FEDERAL REPORTER.
Bame, gives the locator thereof the exclusive right to possess and enjo.v the Bame as against all persons having actual notice of such location and the extent thereof. 19. WORK NECESSARY TO HOLD A CLAIM.
The statute requires $100 worth of work on each claim located after May 10, 1872, in each year, and, in default thereof, authorizes the claim to be relocated by other parties, provided the first lQcator has not resumed work upon it. But if the first locator resumes work at any time after the expiration of the year and before any relocation is made, he thereby preserves his claim. The statute nowhere authorizes a trespass upon, or a relocation of, a claim before located by another, however derelict in performing the required work the first locator may have been, provided he has reiurned and resumed work, and is actually engaged in developing his claim at the time the second locator enters and attempts to secure·the claim. . 20. WORK TO HOLD ADJOINING CLAIMs.
Where one person or company owns several contiguous claims capa1;>le of being advantageously worked together, one geooral system may be adopted to work such claims; and work done according to such system for the purpose of prospecting or working all such contiguous claims, although done on only one of such claims, or even outside of all of them, is available to hold all such contiguous claims intended to be worked or prospected by such general system.
This was an action in the nature of an action of trespass upon a lode mining claim in the Bodie mining district, California, in Which the defendant pleaded title to the locus in quo. The case was removed from the state court to the circuit court of the United States, where it was tried by a jury. Garber, Thornton if Bishop and Robert M. Olark, for plaintiff. Stewart, Vanclief rJ: Herrin and P. Reddy, for defendant. SAWYER, C. J., (charging jury.) .counsel having ably discharged their duty, it now devolves on the court to state to you the lawgoverning this case, and then it will be your duty and your province to determine the facts. The questions of fact are for you alone to determine; the weight to be given to the evidence, the credit to be given to the witnesses, and everything relating to a disputed question of fact, is for your sole consideration and determination. If I state the testimony I shall only do it for the purpose of calling your attention to it and stating its tendency, but I shall not go over it fully. If I intimate an opinion on a disputed question of fact you are not to be governed by it unless it corresponds with your' own ideas as to what the facts are. If I make a mistake in stating the testimony, or alluding to a fact, you will correct it by your own recollection and judgment. I do not intend to express an opinion on the disputed questions of fact, or where the testimony is in conflict. I shall state to you the law which governs this case, and it is your . duty to take the law from the cOQ-rt.
· JUPITER MINING CO. V. BODIE OONSOLIDATED MINING 00.
669
You will examine the testimony calmly, carefully, and impartially, and announce the result by your v£lrdict. First in the order of proceedings we would naturally consider the questions that arise on the plaintiff's title. I do not understand the defendant to insist that the plaintiff has not made out a prima facie title to the ground covered by its claims, now known as the Jupiter Company's ground, embradng the four claims:-the Savage, the East Savage, the Riordan, and the Daley. It does claim, however, by its own evidence, to overthrow that title by showing a title in itself prior to and superior to that title. Prima facie I do not understand the defendant to claim that plaintiff has not shown its title to these claims; .but the question that arises on its title is, is the point on the Actreon vein where the acts complained of were committed within the claims of the plaintiff? Does the plaintiff own the lead at the point where the acts complained of were performed? If it does not, then it has no title to the vein worked upon, and it is not injured by the act of the defendant, and your verdict mnst be for the defendant, whether the defendant has shown title to the vein in question or not·. Unless the plaintiff has title to that vein it cannot recover in this action. That point, therefore, is an important one for you to determine; and it is the first question in .logical order that arises in this
.It will be convenient for you to dispose of this first. I will, therefore, first call your attention to it. If you find that point against the plaintiff it will be unnecessary for you to go further. In order that the plaintiff should be the owner of the Actreon vein it must be one of the veins or ledges which was located in one of plaintiff's four claims, or it must have its top or apex within the side lines of some one of its claims, drawn vertically downwards. The first question then is, is it one of the ledges which plaintiff's grantors located? The point where the acts complained· of were performed is here (pointing on the model)-from this point downwards in what has been termed-and the name may be used to designate the place Actroon ledge. The plaintiff insists on two positions-First, that it is the lode which its grantors located in the Savage, and which claim was located on this lode here, which plaintiff's c01111sel says, according to the strike of the lode, runs somewhere in this direction. The plaintiff does not locate it on or claim that it was any other lode than that, I believe. Then is it identical with the lode which was located in the Savage claim? Now, this is known to. have been exposed, and is seen only in these ·two r\aces. That
670
'. fact, in conn.ection with the other facts in relation to the formation of the country rock around here;· and the other surrounding facts, is the fact from which you must determine that question-whether it is or is not that lode. It is insisted on the part of the defendant that this is a mere spur or offshoot of the Fortuna lode. If it is not such a spur or offshoot, then it insists that it is an independent lode, wholly disconnected from any of the other lodes. Now, gentlemen, if that is only an offshoot or spur of the Fortuna lode, in such a. way as to be simply part of that lode, then the plaintiff has no title to it, and it claims none. It disclaims any title to the Fortuna lode. It is for you to determine from the testimony whether it is part of the Fortuna lode, or whether it is an independent lode, or if it,ie a part of the Savage lode. If it is a part of that lode in the Savage which plaintiff located, then, if· the plaintiff has title to the Savage, it has title to that vein. If it has not title to the Savage, it has not a title to the lode through the Savage; or if it is not a part of that lode, then plaintiff has no title to it· on that ground. The next question is, if it is not a. part of that lode, then has it its top or apex within the side lines of anyone of the plaintiff's claims drawn vertically downwards? Because if it has, and plaintiff has a valid title to that claim, then it is plaintiff's property. If it has not its apex within the side lines of any of plaintiff's claims drawnvertically downwards, and is not one of the lodes which the plaintiff actually located, then it has no title to it. Those are the questions of fact for you to determine on this branch of the case. You have heard the testimony, and the comments of counsel on it, and upon the testimony you must determine the questions. It is insisted by the defendant, if this vein is not a spur or offshoot of the Fortuna lode, that then it is an independent lode; and the plaintiff insists, if it is an independent lode, that it has its top or apex within one of its claims; and the defendant insists that the top or apex is outside of the plaintiff's claims. If it is an independent lode the question is, in what direction on the dip does it run, and where is its apex or top? Mr. Anderson and Mr. Whiting testified that at this point here, with a mathematical instrument made and used for that purpose, they measured the angles of the dip, and, according to their measurement and their testimony, the dip would carry it some distance outside of the Daley claim, supposing it to run in that direction to the surface. If it is an independent lode, and has its top or apex outside of the Daley
JUPITER MINING CO.V. BODIE CONSOLIDATED MINING CO.
671,
claim, then it does not belong to the plaintiff. If it is inside of the Daley, if it has its top or apex inside oUhe Daley or Savage, it does belong to the plaintiff if they have the better title to those claims. Jenny and Mr. Holmes, on the contrary, testified that they put a plumb-line on the vein, although they do notprofeas to have measured the angle, and they say it is nearly perpendicUlar; and, supposing it to go in that direction to the surface, it would come ver:y near to the· Daley line and a little inside. .Where the top or apex is, is for you to determine. The plaintiff claims that, owing to ther formation of the country rock, .the probability is the vein runs to' this point, and then turns off and runs into the Savage. The plaintiff's theory, as I uriderstand the testimony, is that here are two. diferent formations.· This formation ito .the eastward is a secondary formation; this to the westward is theprima,ry, (pointing to the map.) That the line of stratification runs ini difierent directions in the two formations there. That is claimed to be secondary, (pointing.) If you believe that theory as to.;the formation of the here, and believe that the, lodes found outside or to the eastward of this blue clay stratum run in this direction, aJ;ld the stratificationthereinthe samedirectioJ;l dipping to the westl and the leads and stratification to the westward, iJ;l this direction, dipping to the. east, then it will be a question of probabilities for. you to determine whether or not this Actreon lode passes up and crqsseSQver .the blue clay stratum into the other formation, thence following its line of stratification to the surface, or is i$ more likely to have pursued its course in its own formation, followi:ng the line of its stratification, as this Fortuna vein has apparentlv done here on .the sam.e side of the stratum of blue clay? This Fortuna vein, it seem, follows its own formation and line of stratification throughout. You are entitled to consider the probability--:-if these are different formations, as they say-the probability whether the Actmon vein would run in that direction and pass out here into apother formation, or whether it would be confined to the formation ip which it is found and to which it properly belongs. I can give you no further aid on that question. You must take the testimony as you find it, and view it with a candid and impartial spirit, and give such determination to the question as you think all the facts and circumstances in the case justify. If, then, the Actreon vein is not one of. the lodes located by plaiptiff; if it has not its top or apex within the side lines of any Qne of the claims of plaintiff drawn vertically downwards,-then it is not the plaintiff's lode, and you will [email protected] to ,find for the .defendant,
672
FEDERAL REPOBTER.
whether the defendent owns it or not. If you find for the defendant on that proposition, that disposes of the case, and there is no necessity to spend any further time on the other points of the case. If you find for the plaintiff, however, on that issue, that the Actreon is the lode that the plaintiff has located there in the Savage, or has its top or apex within the side lines of anyone of the claims that the plaintiff owns drawn vertically downwards, it will be necessary for you to consider the defendant's title-whether the defendant bas an anterior and a superior title; otherwise it will not be necessary to look at its title. I will say, with reference to tbis branch of the case, that the plaintiff alleges this to be its lode. It devolves upon plaintiff, therefore, to show affirmatively to you tbat it is entitled to that lode. The burden of proof is on the plaintiff. If it fails to show" it, or if the testimony is equally balanced, then you must find for the defendant, because plaintiff must show by a preponderance of testimony that the lode is within its claim. If it fails on that, your verdict must be for the defendant. If you find for the plaintiff on that point, as I said before, it will be necessary to consider the defendant's title. Iwill say with reference to the defendant, as I said with reference to the plaintiff, when yon come to the defendant's title the burden of proof is on the defendant. It devolves on it in the same way, by preponderance of evidence, to show that its title is anterior and superior to that of the plaintiff. Now, gentlemen, in order that you may know whether the defendant has a title or not, it will be necessary for you to be informed what it is necessary to do in order to secure a title to a mining claim. By an act of congress which took effect 'May 10, 1872, all valuable mineral deposits in lands belonging to the United States were declared to be free and open to exploration and purchase, under regulations prescribed by law and according to the local customs or rules of miners in the several districts, so far as applicable and not inconsistent with the laws of the United States. The location under which defendant especially claims was made since May 10, 1872, and at the time it was made the statute of the United States authorized a claim to be 1,500 feet in length along the vein or lode, and it was provided that no claim "shall extend more than 300 feet on each side of the middle of the vein at the surface; nor shall any claim be limited by any mining regulation to leaa than 25 feet on each aide of the middle of the,vein at the surface."
JUPITER MINING CO.V. BODIE CONSOLIDATED MINING 00.
In the absence, then, of any mining rule or custom in force at the time of the location at the place where it is made, the location may extend to the distance of 300 feet on each side of the middle of the vein at the surface; that is to say, the claim may be 1,500 feet in along the vein by 600 feet wide, including 300 feet on each side of the middle of the vein. As I construe the statute, however, and so instruct you, by implication, the miners, by a rule, regulation, or custom established and in force at the time and place of the location, may limit the w,idth of the claim to 25 feet on each side of the middle of the vein at the But such limitation to 25 feet on each side, to be valid, must be by virtue of a rule, regnlation. or custom which has not only been established, but which is actually in force at the time of the location. The regulation must be in accordance and not in conflict with the laws of the United States and of the state of California; and the laws of California provide that "in actions respecting mining claims proof must be admitted of the customs, usages, or regulations established and in force at the bar or diggings embracing such claim, and such customs, usages, or regulations, when not in conflict with the laws of this state, must govern the decision of the action." This provision is still in force, except so far as its operation is limited by the act of congress. The Lucky Jack location, under which defendant claims, was made May 26, 1875, and the claim was located 300 feet wide on each side of the lode" in pursuance of the act of· congress allowing such location. It is claimed by the plaintiff that there was at the time of the location a regulation in force in that district limiting the claim to 50 feet on each side of the vein, and that the location of 300 feet is therefore void. Now, whether there was or not such a regulation or custom in force at the time, is a question of fact to be fOQnd by the jury from all of the evidence in the case on that point. The plaintiff, to show a regulation· limiting the location to 50 feet on each side, introduced the minutes of proceedings of a miners' meeting in the district, held July 10, 1860, in which there is a rule making such limitation, and minutes of meetings held at various times subsequently, amending the rules, but continuing this rule in force down to and including November 13, 1867, at which time the last action in respect to modifying the rules and regulations was had til] v.11,no.7-43
.
673
674
December 30,1876, which is a year and seven months after said location, and nine years after any meeting amending said rules. The defendant, to meet this testimony, introduced in evidence the mining records of the district, from which it appears that no miners' meeting was held, and no mining recorder was elected from July 3, 1869, till October 9, 1875,-more than six years,-and that from'and including the year 1872, when the act of congress referred to took effect, and thenceforth down to the year 1875, only one quartz location was made in the district,-there being none after the passage of the act of congress in ,18'{2, one ,ill 1873 in which no width waa specified, and none in the year 1&74 ; that during the year 1875 were made 3'00 feet. eleven quartz locations were made, of which side of the purported to have been made in ance of said act of congress, and two only of 50 feet wide on each side, one of which two was marked on the,record as abandoned, and during the year 1876 twenty-five locations appear to have been made, of which five were 600 feet wide; one, an extension of a 600 feet claim, having no width mentioned, a:qd the others 50 feet wide on each side. FroD) this it is argued by the defendant that quartz mining in the district, so far as new locations are concerned, was practically abandoned for several years, and no laws on the subject of n8W locatiODS were practically in force; that,on, the return of the miners, and, the revival of mining in 1875, the act of congress had been passed, and the miners regarded that act as superseding the old laws on this point, and as authorizing the location of quartz claims 300 feet wide on each side, and in practice. adopted and generally acquiesced in that rule during the year 1875, and partially in 1876, till the meeting in December of that year-the rule limiting the claims to 50 feet by common consent falling into disuse and ceasing to be in force. As held by the supreme court of California, in commenting upon the provision of the state statute cited, which is still in force: "No distinction is made by the state statute between a custom or usage; the proof of which must rest in parol, and a regulation which may be adopted bya miners' meeting, and embodied in a written local law. This law does not, like a statute, acquire validity by the mere enactment, but from the customary obedience and acquiescence of the miners following the enactment. It is void whenever it falls into disuse, or is generally disregarded. It must not onlybe established, but in!orce." . . .. A custom reasonable in itself and generally observed will prevail as against a written mining law which has fallen into disuse. It is a question of fact for th!l jury whethel: the mining law is in force at any given time,"
JUPITER MINING CO.
BODIIlt CONSOLIDATED lUNING CO.
675
It is for you, ,then, geiltlemen of the jury, to determine whether this limitation to 50 feet was actually in force at the time the location of the Lucky Jack, 800 feet' wide on each- side, was made. The fact that the rule in question was adopted and kept on foot in the laws for a considerable period of time would be prima facie evidence, nothing to the contrary appearing, that it was in force at one time; and, being once in force, a presumption would arise that it continued in force till something appears tending to show that it had been repealed, or had fallen into disuse, and another practice been generThe mere violation of a rule by a ally adppted and acquiesced few persons only would not abrogate it if still generally observed. The disregard and disuie must become so extensive as to show that in practice it has become generally disused. Now, gentlemen, whether, in view of there being few locations in this district during several of the act of congress years, and none in some, and of the referred to, and the location at first, after the revival of the mining interest in 1875, of most all claims, in pursuance of the provisions of the act, 300 feet wide on each side,if such be the fact, and in view of all the circumstances appearing in the evidence, it is for you to determine whether the 50 feet limitation had fallen into disuse, or was really in force at the time of the location in question. If it was not in force, then in that particular, if otherwise valid, the location was good and valid to the full extent of 300 feet on each side of the vein. If the limitation was in force, then it was void as to the excess over 50 feet on each side of the vein, but valid to the extent of 50 feet and no more. The statute also provides, gentlemen of the jury, that "no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the olaim located." So that no rights can be acquired under the statute by a location made before the discovery of a vein or lode within the limits of the claim located. A vein or "lode authorized to be located is a seam or fissure in the earth's crust filled with quartz, or with some other kind of rock, in place, carrying gold, silver, or other valuable mineral deposits named in the statute. It is not enough to discover detached pieces of quartz, or mere bunches of quartz not in place. The vein, however, may be very thin, and it may be many feet thick or thin in places-almost or quite pinched out, in miners' phrase -and in other places widening out into extensive bodies of ore. So, also, in places it may be quite or nearly barren, and at other places immensely rich. !tis only necessary to discover a genuine mineral
676
FEDERAL REPQRTER.
vein or lode, whether small or large, rich or poor, at the, point or discovery within the lines of the claim located, to entitle the miner to make a valid location, including the vein or lode. It may, and often to develop a does, require much time and labor and great vein or lode, after discovery and location, sufficiently to determine whether there is a really valuable mine or not, and a location would be necessary before incurring such expense in developing the vein to secure to the miner the fruits of his labor and expense in case a rich mine should be developed. If, then, the locators of the Lucky Jack such a mineral vein or lode as I have described, however small, before the location of that claim, the location of the claim embracing within its lines the vain or lode so discovered was in this particular valid; otherwise, not. The same observation would be true as to each of the other claims held by the plaintiff or defendant. . The defendant claims that its grantor discove.red such a vein or lode as I have described in Lucky Jack, shaft No.!. You have heard the testimony on the point, and it is for you to determine whether they did or not. If they did, then the location is good in that otherwise, it is not. . It is not necessary that the locator should be the first discoverer of the vein, but it must be known to him, .and claimed by him, in order to give validity to the location. I instruct you further that if,a party should make a location in all other respects regular, and in accordance with the laws, and the rules, :r:egulations, and customs in force at the place at the timeupo:p. a Bupposedvein, before discovering the true vein or lode, and should do sufficient work to hold the claim, and after such location should discover the vein or lode within the limits of the claim located, before any other party had acquired any rights therein, from the date of his discovery his .claim would be good to the limits of his claim, and the location valid. The defendant also claims that its grantors discoyered veins in shaft No.2, and its drifts and cross-cuts, long before plaintiff acquired any rights in the ground. If so, the claim is good in that particular. Similar discoveries are claimed to have been made by its grantors in the Warren Loose shaft, drift, winze, etc. So, also, gentlemen of the jury, where a party bas made a location upon a mineral vein or lode discovered by him, in all respects valid, be is entitled to "have the exclusive right of possession and enjoyment of all the surface included within the lines of his location, and of all veins, lodes, and ledges throughout tl1eir entire depth, the top or apex of which lies inside of such surface lines extended down-
JUPITER MINING CO. V. BODIE CONSOLIDATED MINIRG <lO.
'67'7
wards vertically, althongh such veins, lodes, or ledges may so far depart from a perpendicular in their course downwards as to extend outside the vertical lines of such surface location." That is to say, if the defendant or its grantors discovered a min. eral vein or lode in the Lucky Jack claim, and made and has now in all respects a valid location of that claim, then it is not only entitled to the particular vein or lode so discovered and located in said claim, but to all other minerals, veins, lodes, and ledges throughout their entire depth, the top or apex.of which lies inside of its surface lines extended vertically downwards, to which no right had attached in favor of other parties at the tima its location became valid, alth6ugh such veins, lodes, or ledges may so far depart from a perpendicular in their course downwards as to extend outside the vertical side lines of the surface location. If the defendant has a valid claim to 600 feet wide, then its right extends to all such veins or lodes, under the conditions stated, so within the surface lines bounding the 600 feet drawn vertically downwards; and if the Actreon vein in question is one of the veins having its top or apex within such surface lines drawn vertically downwards, its right extends to and includes that vein. If it has a valid claim to 100 feet wide, and only so much, then to such veins or lodes within the 100 feet lines. The same principle and instruction applies to the defendant's other claims. If the defendant has a valid location to those claims, or either of them, then it is entitled to all the veins or lodes under similar circumstances, the apices or tops of which lie within the surface lines of such valid location or locations extended vertically downwards. The next point to which 1 shall call yonr attention, gentlemen of the jury, is the location. To make a valid location undedhe statute, it is required that the "location must be distinctly marked on the ground so that its boundaries can be readily traced," but the 'law does not define or prescribe what kind of marks shall be made, or upon what part of the ground or claim they shall be placed. Any marking on the ground claimed, by stakes and mounds, and written notices, whereby the boundaries of the claim located can be readily traced, is sufficient. But there must be some such marking, and when a mining claim is once sufficiently marked out upon the ground, and all other necessary· acts of location are performed, it vests the right of possession in the locator, which right cannot be divested by the obliteration of the marks or removal of the stakes without the fault of the locator s? long as he continues to perform
·
678
PEDERAL REPORTER.
the necessarY.,workupon the ground and to comply with the law m other respects. If, then, the jury believe from the evidence that the Lucky Jack claim did not exceed in quantity the amount allowed by the United States laws, and was located in conformity with the actual practice and custom of miners in force in the year 1875, as to the size of claims in the Bodie mining district, and that before the location of the claims of the plaintiff thereon it was actually and distinctly marked on the ground by stakes, notices, monuments, and work, so that its boundaries could be readily traced, and a vein containing gold or silver had been discovered therein, and sufficient work was done thereon to comply with the laws of congress and the local regulations, and if no record was required other than that actually made, then the lucky Jack location was valid, and entitled the locator to the exclusive possession thereof>; otherwise, not. There is testimony tending to show that the rule and custom of miners in Bodie district at the time the Lucky Jack loqation, under which defendant claims, was made, required mining claims to be reo corded within a certain time after location, and testimony also tend· ing to show that there was no mining recorder elected in Bodie district from July 3, 1869, to October 9, 1875,-more than six years, including the period of this location; and that during So portion of this time, at least, in the apparent uncertain condition of affairs, some locators recorded their claims in the office of the county recorder, and also in the books of the district in the possession of the last preceding reo corder, or of the last preceding deputy recorder, of the district, and the Lucky Jack, at least, in the county recorder's office only. If you find So rule or custom: to record to have been in force in the district at the time, then a record was necessary to perfect and preserve the rights of the locators as against all subsequent locators, at least, not having actual notice of the prior location. If no such custom was in force, then no record was necessary. It was only necessary, in any event, to record at the place where the cusf,om known and in force at the time of the location required the record to be made. If it was sufficient, under the custom in force, to record the location in the county recorder's office, then a record there was suffi· cient; otherwise, not. And the fact that many miners did 80 record, is evidence tending to show that they thought such record available, and relied on it, and tending to show such custom. The custom to record, and the place of thc record, to be binding, ought to be so well known, understood, and recognized in the district that locators should
JUPITER MINING CO. 11. BODIE CONSOr-IDATED MINING CO.
679·
have no reasonable ground for doubt aato what is to make and preserve a valid location. It is for you, gentlemen, to determine, from the evidence in the case, what record, if any, and the place where it must be made, the custom in force at the time required; whether the custom was in all particulars sufficiently known and recognized to make it binding upon the miners; and whether the location of the Lucky Jack claim substantially conformed to it. In determining these questions, the fact, if.it be a fact, that there was an uncertainty as to where a. record should be made,-some recording in the district records, some in the county record's office, and many in both; the fact that there was no recorder elected for six years; that Bechtel, the last deputy, and the man ,,:ho seems to have actually done the recording, resided, during a portion of the time, out of the district, coming, in some instances, at the request of parties from his residence into the district to record claims; and the fact that miners, at their first meeting in October, 1875, after several years' hiatus in their meetings, deemed it necessary, or at least prudent, to ratify and validate by resolution the records of the preceding five or six years,-are all circumstances that. the jury are entitled to consider, as tending to show that there was no custom as to the place where the record should be made, prevailing during that period, sufficiently certain, well known, and defined, and generally recognized and acquiesced in, to be of any binding force. The jury are entitled to give these circumstances such weight, in connection with all the other evidence bearing upon the question, as they deem them entitled to receive. And it is for you to determine whether, under the circumstances, a record in the county recol'uer's office was sufficient. If a record was required, then, in order to make a record, it was necessary for it to contain the name or names of the locator or locators, the date of the location, and such a description olthe claim or claims located, by reference to'some natural or permanent monument, as would identify the claim. The natural objects or permanent monuments here referred to are not required to be on the ground located, although they may be; and the natural object may consist of any fixed natural object; and such permanent monument Ill;ay consist of a prominent post or stake firmly planted in the ground, or of a shaft sunk in the ground. The exact effect of a record, or want of a record, I have not before had occasion to consider. The law of congress authorized miners to make regulations "governing the location and manner of recording.
680
As a general principle of law, forfeitures are not favored. The object of recording mining claims is to give notice to others desiring to locate claims in the vicinity. The congressional law does not require a record, but prescribes what a record shall contain when it is required by the local rules. If there were no local rules in Bodie mining district attaching the penalty of forfeiture to the failure to record in that district, and recording was not made by custom an act of location, then the fad
JUPITER MINING CO. V. BODIE OONSOLIDATED MINING 00.
681
that the Lucky Jack claim was not recorded in the records of Bodie mining district will not invalidate the location, as to any having actual notice of that location, and in that case the jury are instructed that if the Lucky Jack location was regular in all other respects, and the laws requiring work were oomplied with, the: fact that the claim was not recorded 'in the Bodie mining district did not invalidate the location, or make it lawful for plaintiff's grantors, if they had actual notice of the previous location, to enter and locate the ground covered by the Lucky Jack location. The testimony also tends to show that prior to the location of the Daley claim, or t6 any rights being acquired thereunder by the plaintifT, the defendant or its grantors, in addition to the stake or stl\kes, whichever it was, and notice put up at the time of location of the Lucky Jack claim, surveyed out that claim and' planted prominent surveyors' '!ltakesand monuments at the' varion's' COrners of the claim, distinctly marking it out and forming a para.llelogram 1,500 ftlet long 'by 800 feet wide, and entered into actual possession, and it IS claimed that if there was at the time of the location any' defect in' the marking on the ground, this additional marking, 'before any rights were acquired by the plaintiff in the Daley, was clearly sufficient to validate the claim as to that location. In regard to this point I instruct you, gentlemen, that a subsequent locator cannot object that a prior location of a mining claim was not sufficiently marked on the ground at the time of Its location, provided such prior location was sufficiently marked on the ground before snch subsequent locator made any location or acquired any rights in such claim. ' If, therefore, the claimants of the Lucky Jack surveyed and properly staked or marked out their claim, and performed all the other acts necessary to make a valid location, before any rights were acquired in the Daley ground by the location of that claim, then the better title vested in the owners of the Lucky Jack to all the Daley claim embraced in the Lucky Jack which the locators of the latter were entitled to locate and hold. The statute requires $100 in value of work to be done on each claim located after May 10, 1872, in each year, in order to hold it; and, in default of such work being done, authorizes the claim to berelocated by other parties, provided the first locator has not resumed work upon it. But if the first locator res1,1mes work at any time after the expiration of the year, before other rights attach in favor of relocators, he preserves his claim.
682
fEDERAL REPORTER.
The statute nowhere a. person to trespass upon or to relocate a claim before pi:operly located by another, however derelict in performing the required work the first locator may have been, provided he has returned and resumed work, and is actually engaged in developing his claim at the time the second locator enters and attempts to secure the claim. Whether the work was done as required by the statute is a tion for you to determine from thtl evidence. Work done by any of the grantors of defendant while holding the claim, whether holding the legal or equitable title, during the performance of the labor or work done in the interelilt of the claim, is available to preserve the claim, apd no mere· relocation for forfeiture, mILde before the foractuallyattaohes ,by actual default, be valid to defeat the claim. Any· work done by the Bodie ,Company on the claim for that purpose, after the conveyance to it, October 7, 1877, and before. May 26, '1818, available ,as work fOf the year from May 26, to May 26, 1878, to prevent a forfeiture. With regard to the work required to be done in o;rder to hold a claim, the jury: are further instructed that where one person or company owns several contiguous or adjoining claims capable of being advantagEiously worked together, one general system may be adopted to work such claims: Such system may consist of a shaft with drifts, cross-cuts, and tunnels therefrom, and such works need not be upon any of the claims in question. ,,-When such syst.em is adopted, work· in furtherance of the system the claims intended to be developed by it. Work done of the claims, or outside. of any claim, if done for the purpose and as a means of prospecting or working the claim, is as available for holding the claim as if done within the boundarie-.; of the claim itself. To conclude, of the jury, in view of the legal principles I have stated to you, if you find from tbe evidenc'e that ,the so-called Actreon vein, upon which the trespass if! alleged to have heen committed, is not one of the veiilB actually located in either the Savage, East Savage, Riordan; or Daley claims, and if its top or apex is not within the planes of the side lines of eit.her of said claims drawn vertically downwards, then it does not belong to the plaintiff, and your verdict must be f()r the defendant, whether it has title to the claim or not. The ,plaintiff cannot recover unless the vein bolongs to. it. So, if the top orape,x of said Actreon vein is within the planes of the side lines drawn vertically downwards of any mining claim to which
GRA:Y V. CINCINNATI BOUTHE!\N B. CO.
688
the defendant has shown a valid title prior in point of time to the title to any of the four claims relied on by plaintiff in like manner embracing said vein, whether such valid prior claim of defendant be 600 or 100 feet wide, the verdict must also be for the defendant. But if, on the contrary, you find that the said Actreon vein, at the point where the trespass is alleged to have been committed, is the vein actually discovered and located by plaintiff's grantors, in anyone of the said four claims of the plaintiff, or that it has its top or apex within the planes of the side lines of anyone of said four claims drawn vertically downwards, and if you further find that the defendant has not shown a title as against said plaintiff by a valid subsisting prior location embracing said top or apex within its side lines drawn vertically downwards, then your verdict must be for the plaintiff. Gentlemen, I believe the testimony is very indistinct as to the amount of damages. No testimony was offered as to the amonnt of damages. If you- find for the plaintiff, and you havano testimony on which to estimate correctly the amount of damages sustained, yon will find nominal damages, say one dollar. The form of the verdict will be, "We, the jury, find for the plaintiff, and assess the damages at so much." If you find for the defendant your verdict will be, "We, the jury, find for the defendant." A Juror. How can the jury find a certain sllmwhenno evidence was offered? The Court. You will then find nominal damages, one dollar. The verdict of the jury was for the defendant.
GRAY V.CINCINNATI SOUTHERN
R.
Co.-
((Mcuit (Jourt, 8. D. Ohin, W· .D.
April 18, 1882.) &%
Common carriers have the power to make reasonable regulations for the transporting of their passengers from point to point. Whether they may classify passengers according to sex and color not decided. 2. BUlB--COLORED W OliAN HOLDING FmsT-(''LAS8 TICKET ENTITLED TO FmSTCLASS ACCOMMOD,ATION8-LADIES' OAR-:-SMOKING CAR. '
A colored lady who had purchased and held a first-class ticket was entitled to admission into the ladies' car, it there was room far her therein; and, if she was refused admission and the railroad company declined to carry her flXcept -Repol'ted b)' J. C. Harper, Esq., or the Clnclanatl bar.
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