Page:Federal Reporter, 1st Series, Volume 4.djvu/719

FAXON V. BÀEIÏAED; 70S �asMng'the like bounty. Thïs îs reasonable, and necessary to' j'ustly administer the law; and thôrefore it must be said that without sueh description a certificate of location is void. On that ground the original certificate of defendants' grantor will be rejected, and as the relooation was posterior to plaintiff's it cannot prevail against the latter. It remains to consider what would be the efifect of actual possession by defendants or their grantors at the time the Ontario Iode was located ; for it appears that defendants' discovery shaft is in the ground in controversy, and they aver that they bave been in possession since the Iode was first opened. That they bave not worlied there constantly, may be inferred from what bas been done; for, as the shaft is now only 50 feet deep, it is difficult to believe that three yeîars and more bave been occupied in sinking it. But defendants say that they bave been on the ground constantly, and plaintiff asserts that they have never been there at aU. In this conflict and imperfect staite- jnent of testimony it is impossible, on a preliminary motion of this kind, to ascertain the faet, and we resort to some general rules which should control. �Plaintiff's position is and must be that the Iode was dis- covered by his grantors 600 or 700 feet from the ground in controversy, extends from thence to the point occupied by defendants, and that defendants are on the same Iode. As- Buming that to be correct, the question is whether defendants or their grantors were in actual possession at the time plain- tiff's location was made. That they were on the ground before that time is shown by testimony which is not contradictad, and the burden is upon the plaintiff to show that they were not there at the time of his location ; for if they were then in actual possession, having uncovered the Iode, plaintiff's grantor, claiming by subsequent discovery, could not oust them Bo long as they saw fit to remain there. As to the ground actually held by them, although if they failed to locate under the law they could not claim more, no one by junior discov- ery could assert a superior title. Plaintiff's location may be valid up to the very point occupied by defendants' grantors, but it must be said that a location cannot be extended over �v.4,no.8 — 45 ����