Page:Federal Reporter, 1st Series, Volume 8.djvu/739

YAN ZANDT V. ABGENTINE MINING CO. 725 �volved necesfiarily arise under the laws of the United States; and hence this coui:t bas original jnrisdiction of the subject-matter of the action, and the case was properly xemovable. The motion to remand must be denied. ���Van Zandt, Trustee, v. The Abgentine Mining Co. �{Cireuit Court, D. Colorado. Jube 16, 1881.) �1. MiKEBAL LaHDS— TbBBITOET COMMON TO TWO CLAIMS— TiTLB. �As between two locatora, the boundaries of whose respective claims include common territory, priority of location confers the better title, provided a vein in place was discovered in the discovery shaft, and provided, also, that it ex- tended to the ground in controversy. �2. Bamb— Locations. �Nor are the rights of the parties changed by the f act that the senior location was on the dip of the Iode; the junior on the top, or apex- Action to recover possession of the Adelaide mining claim, in Call if omia district, Lake county, Colorado. �Plaintiff offered evidence to prove that the claim was located by Walls and Powell in the year 1875. As to marking the boundaries of the claim on the surface of the ground, and the finding of valuable ore in the discovery shaft, the evidence was slight; and defendant objected to plaintifiF's record title on the ground that these facts were not shown. As there was some evidence on both points, the court held that the paper title should be received. In the original certificate of location the description of the claim contained no refer- ence to a natural object or permanent monument; but this was cor- rected in an amended certificate, and both were received, although it was held that the flrst was fatally defective. Having declared for the entire interest in the claim, plaintiff failed to show title from the original locatora to an^ undivided one-third interest. Gne of the deeds upon which he relied was not sufficiently proved, and upon defendant's objection it was excluded. Thereupon he moved for leave to make the grantor in that deed, in whom the title to the said one-third interest would rest, (assuming that instrument to be void,) a party plaintiff in the suit. And this was denied by the court : First, because the deed, for aught that appears, was effectuai between the parties to it to transfer the property; and, second, a etranger should not be made a party to the suit without his knowledge and consent, which is not shown. Plaintiff then suggested to the court that, upon ��� �