816
FEDERAL REPOR'I'ER.
upon motion, wRsmade aparty plaintiff when the above facts were disclosed, in the progress of the, t r i a l . . ' . The defendant, Harris;'claims that he and Juneau, upon the discovery of the' quartz ledge which was located in the name' of and for Fuller, in the presence of three Indians whO could neither speak nor understand our language, held an election, under the provisions of the act of congress of May 10, 1872, (section 2324, Rev. St. ,) at which he (Harris) was elected recorder for the mining district, which he then "christened" Harris Mining Districij":alld made it record 'of the location of the placer clitim, dated on the fourth day of October, 1880. While it appears from his pass-book in which the record was made that the Fuller First was located on the twelfth .c!'ayof October, 1880; Joseph Juneau testified at the trial that he and Harris looated the quartz lode (theUFuller First") on the fourth day of October; arid the placer clain:f!on the twelfth day of October, overlapping the quartz lode, aIidthatHarris changed the record-accordingly. The evidence of Juneau is· materially strengthened by' the circumstance of Harris having given Fuller a receipt for his wages earned while prospecting, in which he certified,over his own signature, that the quartz lode designated as theUFuller'Firirt'1 was the first location in Silver Bow basin., 1t appears the evidence and circumstances that both Harris and . Juneau acted in bad faith, and abused the confidence reposed in them by Fuller, and, but for the fact oHheir subsequent disagreement,.the real fadt oftae fraudulent altetatioriof the record might never have been known. Harris and J uneau make most bitter and malignant charges against each other, but, upon a careful examination of theoase, r may well doubt if either of them is the unconscionable reprobate which each would make the other appear. It is indeed sad that two men, who were 80 closely allied in the daring and hazardous enterpl1ise of extorting from the bowels of the earth a fortune, should now invade the vocabulary of acrimony in searoh Of epithets with which to blaokeneach others' oharacter, and transmit to their offspring an inheritance of dishonor. ,The reoordmade by Harris in his pass-book was by no means a compliance with the act of congrea.sof May 10, 1872. While thtl act ex:tended many favors to and aimed tofacilitllteminers in the enterprise of locating, and establishing titles,to the mineral lands of the United 'States, still it requires certain formalities. The miners of each mining district may make regulations, but ,they must not be in conflict with the laws of the United States., One of the requirements is that the location must be distinctly marked on'the ground. so that tlie boundaries can be readily traced, imd the, act requires that all records of mining claims shall contain the name ornamesofthe locators, the date of the location, and such So description of the claim or claims, by reference to some nat·ural object Of permanent monument, as will identify the ' To say nothing ahqut the absurdity 6fthe election at which Harris claims to have been elected recorder, it requires but a. glance at his memoranda to see, that theenfioy made by him in relatio'n to the placer mine location wholly fails'to comply with the act of congress. It begins nowhere and
from
FULLER fl. BARRIS.
817
ends nowhere. There is neither a natural object, or permanent monument, or' any designatiorior mark, by which the placer claim can be identified. The idea that such a record complies with the law, or that it imparted any notice otinformation to the public, is too absurd to require serious The liberality extended by congress to prqspectorsand miners was not intended to entirely dispense with legal rules, or abrogate the fundamental principles of law. The court· is not to presume that congress intended that a man could procure his election as in the manner in which Harris did,-make a record utterly void of 'lEikal'requisites, of a placer mine rich in precious metals, and carry ,that record in his coat·pocket. The object of all public records is to itnpai-;tnotice to the public of all such matters as the law requires to such records are open to the inspection of the public. :aut itis:,\litlicult to understand how the public, or how the plaintiffs, pliwerlocation by Harris, the imperfect record 'of which' was' by him secreted. The mineral lands of the United States are prospected and sturdy adventurers, who imperfect of the application'of legal principles, and hence congress has presC}jl:)ei!'what' the- record of a mining claim must set f()rth. Section 23M, 'St', ' Tlieevidence f!Jrther discloses the fact that upon the execution' and deliveryofthe receipt by Harris to Fuller, in December, 1880, in which he certified to Fuller that the Fuller First-the quartz lode-was the fi1"l;lt location in the basin, Fuller, as soon thereafter as was convenient, procured wage-workers, and expended both money and labor in .developingthe mine. It is a well-established principle of law that admissions, whether of law or fact, which have been acted upon by others, are conclusive against the party making them, in all cases, between him and the P!1rtywhose conduct he has 'thus influenced. Kinney v. Fd:rnsworth, 17 Conn. 355 ; 1 Green1. Ev.§ 207. It is wh<llly immaterial in the application of this principle whether the admission made by Harris was trueo'r false;the fact that it was acted upon by Ftiller, that he was influenced by it, and induced to spend his money, renders it conclusive as against Harris. Trustees' Presb. Cong.v. WiUiams, 9 Wend. 147j Livermore v. Herschell, 3 Pick: 38; Davenport v. Mason, 15 Mass. 85. The next point raised by the motion is that of newly-discovered evidenee-by the defendant. The motion is supported only by the affidavit of Harris, and the certificate of the present mining recorder, and sets forth that the location of the Fuller First was made on the twelfth day of October, 1880, eight days after the locationof the placer mine. 'But these records were available to Harris before the trial, and his evidence before the jury was substantially the same as now set forth in the motion. 'fhegeneral rule in relation to newly-discovered evidence, in order to entitle a party to a new trial, is that it must not be merely cumulative, but it must be shown to be material in its object; going to the real merits oltheeMe, and it must be made to appear that reasonable diligence on the part qf;the party offering it could not have secured it at the, former trial, and'dUlght to be msuch nature and force as to be decisive and prov.29F.no.16-52
818
REl'O:RTER.
'. dqctiveQfaQ.opposite result upon the merits on Wise v. State, 24 Ga. 31; Smith v. Matthew8, .6. Mo. 600; Orozier v. Owper, 14 Ill.
, Motions o{thiskind are to be received with great caution, for there are few.cases tried iQ which something may not be di&covered, and for the further reason that it tends to the introduction of perjury. It is infillitelybetter,that a single per&on should suffer mischief or loss than should have it in his. power, by keeping back a part of his evidenceLand then swearing it was mislaid, or that he .was ignorant of its lDatElrUllity, .todestroy verdicts, .and introduce new trial at his pleasure. Yet there may be Cases in which the party applying for a deceived or thrown pff his guard, new trial has .been diligent, or in which, good conscience, he should be permitted to bring .But is this forward and introduce a.case? I think not. lived in tile f;own where they were kept, made tile entries himself, .and hi& neglecMo. produce them is inexpusable. Another point ;made in the,motion is that Fuller, on the fOl.lrth day .ofAprll, relopate<;l the Fuller First, and it is argued that the relocation by Fuller was an abandonment of the first Harris i,n ,Fuller\l. naxy6. ,It is now contended that made, beanpg date ()f October 4, 1880. ga,vehimtitIe to al,1 that portion of the ,placer mine wb,iph.:Qvedaps thEl quartz lode by reason 9f the relocation .byFuller. BJjUtmust be observeq. that, ,the, evidence of .Harris hirp.'¥llf, there were no 10cal.qL1es of the mining district requiring the fOllrth 'or even on the.twelfth of October, 1880. Defend.. counsel seeD;ls to overlook the faQt that the record is·to be provided for:, aJ:1.d its determined,. b,y the l()pallaws or regulations. of miners in tbe.distri,ct,.and,if no record hag been provided .for, which provision ,Ipustprecede.tpeactof recording, no,recordwas ne:eessary: GcJldert ·.Fleece, etci., Co. ,v, cable etc.,Mino: 0>., 12 Nev. 312. If a record .vWed for' by loqall"ules, itD,lust, the mining laws of the United description of the Wl;U8 of the claim by refer. ence ,to Alth()ugh of the first location for Fuller, and in his name, wall made in the of rules and regulations of any ,prganizedmip.ing,qistrict,yet, as a physical fact, the 10Clittion was made for him and·'n by Harris an<;i Juneau while they were in his .employ, the relation ofagents, charged with the execution of a trust, and.anyactby them, or either of them, detrimental to Fuller's ,interest while ,relation existed, was voic,l. An abuse of a trust can .confer nOJ,'ight$QO the party abusillg, it, or on anyone Qlail;ning in priv.itywith him; . Story, Eq. Jur, § It was lawful for Fuller to ra,locate his claimjp, April, 1881, so as to conform to the requirements ()f .the act of copgress,and histitIl'l !;lack by relation to the first loca:ition by and Juneau. FictiOn in law is sometimes resorted toto preventinjustice·. The relatiqn ,the first delivery of a deed, so as to giyeiteffect, from that is. Qftj:lnallowed inth,6 furtherance of
.
justice. and to prevent injury from events happening between the first and second delivery.. 4 Kent, .corom, 454.. Now) by the principles of analogy, Fuller's relocation of the quartz lode in April, 1881, related back to and took effect from the first act of.his agents in October. There interest to Harris, because he was an original could be no wrong·doer, and had violated his trust. It is,!,rgued by defendant's counsel that, regardless of the priority of locatioll" was not a trespasser, and the case of Bullion Min. Co. v. Or.lmt8 Min. Co., 2 Nev.168, is referred to. It is quite evident the learned judge who delivered theppinion in that case was hampered by some local law or regulation, for he says: . "The doctrine of the common law, that he who has a right to the sQ.l1ace of any portion of the earth JIas also the right to all beneath and above that surface, has but a limi ted application to the rights miners and others using the pUblic lands of this state." . That decision was rendered in July, 1866, six years prior to the act of under which the parties to this cause are contending. The present mining laws, (see section 2322, St.,) . "The 10l,lay>rs of all mining lo<;atieDS heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge situated on the public domain, their heirs and assigns, wMre no adverse claim exists on the tenth day of May, 1872, so long 'as they comply With the laws of the United states, and With tltate, territorial"and,localregulations not in conflict with the laws of the United.Btates governing their possessory title; shall have tbeexclusive rightofposllessionand of allthe,8urface included lines of their locatipns, and of all vei,DII, lodes, and lellges throughout their entire depth,' the top. or apex of 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 of the vertical side lines of such surface locations." From· this section it is manifest that congress intended the locator should hold, be entitled to, and enjoy the profits of all the surface includeQ.within the botindary'lines of his claim, and, if in possession in petis6norrby agent, no one had aright to enter upon and take therefrom mineral Of other valuable substance. Actual possession of the quartz prior to the years of 1882, 1883, and 1884 was auffilode bY' cient evidence of title to'antHorize him to maintain this action, aUlI. re(}Over llll.mages against a trespasser· CampbeU v. Rankin, 99 U. S. 291 j CoPt>, U;8. Min. Lands, 413. . The allegation in defendjl.nt's motion of the fraudulent concealment of matenalfacts by plaintiff is not sufficiently proven; . A courtofequity cann.ot'set aside proceedings,and grant relief' against judgments, unless the; proof of fraud,concealment, or imposition is clear, positive, and unequivocal. Story, Eq. J:ur.' § 252. The motion in this case having only the support of the defendant, who gave substantially the same evidence :beforethe jury as is set forth in the motion, is not sufficient to warrant the .couft.ih distul'bingtbejudgment. . . . ";lthemotion is overruled,
'820 ARNOLD KEARNEY
and others.
(Oircuit Oourt,lf. ;J).l/tinoia. .february 7, 1887.) DEPOSITION-REFUSAL OF WITNESS TO SIGN-REMOVED. CASE.
In a cause begun in a state court. and 'subsequentlyremoved to a federal previous to removal by a short· court, the deposition of a witness was hand writer. Before the short-hand notes were written out for reading to the witness and signature by him, according to the requirements of the state statute. the cause was removed,. :Then the witness refused .to 'sign his deposihad, no jurisdiction over the taking of the tion. Held, that the federal deposition, and could not comp,e!,the witness to sign i t . ,
In Equity. Moses Tenriw,' for complainant. Newman, for witness.' .
BLODGETT"J., (oraUy.) . a some,whatnovel question. The suit is a bill inequity; the state court, and after an ha9-. been filed, but 'befoI'(l an issue had made by filing a replication, the complainant,6nli6til\e duly as far as I ean see. i.n conformity with in that tegard, proceeded to in what is ,take the deposition o(a<witnef;ls. ,The' deposition now a common mode of procedure 'in this city, by a short-hand writer, ulid, after the witness had been interrogateii on the part of the complainlint, and cross-examined by the defendant, the matter was suspended out the deposition. After this ,until the short-hand writer could so far closed, ,and befor,ethe testimonywa's written out, examination the suit, on application of was removed to this court, and the record sent here. After the case had' been docketed in this court, to the: to go beforethe notary, and sign the and verify the deposition, in the mean time reduced to writing; and t;his the wHness refused, t() do, saying, ip. subE:\tanee, that he had been sqadvised by defendants'attorney. The court is now asked to compel the witness. to complete his by signing and swearing to it. . I am of opinion that this coprt. ;has no jurisdiction to enforce the proposed order, because whatever done towards taking the deposition was done while the case was within the jurisdiction of tbestate court, and before this court acquired jurisdiqtionof it. It seen:xs to me to one of those inchoate .proceedings which must fall with· the removal of the from the state courk, '.J:hedeposition was not completed under the statutes of Illinois until it read to the witness,or read by him and signed and sw()rnto by' him. Why the defendants' attorney i14vised him not to sign iUs not disclosed, and I do not think it is material, for the, purposes of question, that it should be shown. It is enough that whatever was done by the witness was done under the jurisdiction of the state court, and if that court cannot enforce it,and I have no idea that it can,-then the jurisdiction to enforce whatever remains undone io3 lost.
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