Page:Federal Reporter, 1st Series, Volume 8.djvu/741

VAN ZA.XDT i;. AEGENTINE MINING CO. 727 �apex. If what has been'said to explain the position of the daims is intelligible, it will be' apparent that in this view the Adelaide locaiion «xtended across the vein and on its dip, below the top and- apex j which was to the -west of that; location. Ajid as the Adelaide loca- tion -was first intime, it became a question whethojr a location 80 made and otherwise sufficient would be validagainst a junior location on the top and apex of the vein. This having been raled as «xpressed in the charge to the jury, muoh testimony as to the top and apex of the vein, and the continuanee of the vein to the ground in contre ver sy, was withheld, and the case stood on the valldity of plaintifE's location, whether a vein in place ■w&s ionna in the disbov- ery shaft of that location, and whether the : vein^ if found therCj extended to the ground ini dispute. i : �Chas. S. Thomas, Thos. M. Patterson and Jasi B. Belford, for plaiu* �tiff. ■ ' ; ^,;^,0 / ,, �H. C. Thatcher and G. B. Reed, for idefendant. �Hallett, D. J., (charging jury.) The questions tobedetermined on the evidence relate to the plaintiff's location, which he calls the Adelaide. As to the work on the ground neoessary to a valid loca- tion, the statute of the state provides, among other things, that a discovery shaft shall be sunk tp the depth of at least 10 feet, or d'eeper, if neoessary, to find a W/cU-defined crevice. And the federial statute declares that no location of a mining claim shall be made until the discovery of the vein or Iode within the limita of the elaim located. The position of the plaiatiff is that Walls and Powell.the Ibcators of the Adelaide claim, fouiid a Iode or vein in the , discovery shaft sunk by them, and that position is controverted by defendant. I do.not reeall anything said by witnesses as to a crevice in,that\shaft; but there is some testimony to the effect that ore bearing silver \^iftS foiimd there. If you find from the evidence that such ore wasftaken frcau the Adelaide discovery shaft, it is important to oonsideir whether it existed in mass and position; or, in other words.in the form of a vein or Iode ; or, on the other hand, in a broken and fragmentairy condi- tion, intermingled with the slide and debris on the surface of the mountain. For it rests with the plaintiff to shqw that ore was found in the discovery shaft, andalso that the same body, vein, or Iode extends to the ground in controversy. Of course, if ore was- found in the discovery shaft, and the ore so found was brokeu and froig- mentary, it cannot be «aid that a body of ore— ^ai vein or Iode— was found in thafe shaft which extends to the ground in dispute. Sp that, ��� �