Page:Federal Reporter, 1st Series, Volume 8.djvu/740

726 FEDBBAL BEPOBTEB. �his declaration for the whole interest, he could take a verdict for two-thirds, pursuant to sixth paragraph of section 251 of the Code oi Procedure of the state. But the court was of the opinion that section 249 of the Code, which requires the plaintiff to state the iutereat; claimed by him, should control, and that plaintiff, having declared for the whole, could not recoTer an undivided interest. Nevertheless, the plaintiff was allowed to amend his complaint at the tri \1 so as to demand but two-thirds interest, and the court saidthat thia was often done ; for, the plaintiff having first asked judgment for the whule, the defendant cannot now be surprised that he asks only a part. In the further tiiaLof the cause it appeared that the defendant claimed undertwo locations, called the Camp Bird and Fine, which it held by patent from the govemment. Plaintiff's claim is in the general course north and south, or, to be exact, north 33 deg. 10 min. east. Defendant's two claims, overlapping the other somewhat trans- versely, are in the general course east and west. The contesting claims have the relation of the jaws of shears, and the ground in controversy is that incladed in the space of intersection and a small part of the Adelaide claim immediately north of the intersection. The discoverj shaft of the Adelaide claim is or was at the north end of the claim, and some 300 or 400 feet from the ground in contro- versy. By later operations, and the erection of a mill and ore-house in the vicinity, it had been filled, and the position of it in the claim was not very well shown. Between this shaft and the ground in contro- versy there were no openings to prove that the Iode extended in that direction, and whether it did so extend was strongly controverted. Dependant gave evidence to prove that no minerai was found in the discovery shaft, and that the condition of the ground was such that, if any was found there, it was broken and fragmentary, oi*, in other words, of the character of float mixed with the slide on the surface of the mountain. It appeared, however, that plaintiff and his grantors had maintained possession of the premises from the first, had made valuable improvements on the claim, and had carried on extensive mining operations at and near the ground in controversy. The Camp Bird and Pine discoveries were west of the ground in contro- versy 200 or 300 feet, and, as defendant contended, on the top and apex of the Iode, which at that point extended almost directly across those locations. The defence, by answer, to the support of which many witnesses were brought into court, was that the ore in contro- versy was a part of the vein which defendant held by its top and ��� �