Page:Federal Reporter, 1st Series, Volume 8.djvu/742

728 FEDERAL REPORTER. �if you find that no ore was discovered in the discovery shaft of the Adelaide claim, or if ore was found in that shaft and it was broken and fragmentary, your verdict will be for the defendant. And in this view — that is, aesuming the facts to be as stated — the circum- stance that plaintiff's grantors afterwards developed the body of ore in controversy higher up the mountain side, will not affect the resuit. For a location resta on what may be foand in the discovery shaft; and if nothing is found there, or if what is found there does not extend beyond the limits of the shaft, the discovery of a body of ore elsewhere in the claihi will not avail. But if a vein or Iode was found in the discovery shaft of the Adelaide claim, and it extends through- out the ground in controversy, the plaintifif may prevail. �Something bas been said as to whetherthe locators complied with the other provisions of the statute relating to posting notice of the discovery on the claim, staking the boundaries, all of which must be shown in evidence to constitute a valid location. If you find these things to be proved, and that a vein or Iode was found in the dis- covery shaft, the question remains whether such vein or Iode extends to the ground in controversy. Upon the evidence here it may corne to the point whether the Iode of ore found in the several shaf ts on the hill was also found in the discovery shaft of the Adelaide claim. Nevertheless, if you believe from the evidence that a vein or Iode was found in the discovery shaft, and that it ia not the same as the vein or veins found in the shafts on the same claim, higher up the hill, but that it extends throughout the claim, the plaintiff may prevail. �This being shown, although defendant's locations may appear to you to be along the Une of the top, apex, or outcrop of the vein, it cannot prevail against a senior location on the dip of the Iode. That plaintiff's location is of earlier date than either of defendant's, may be assumed upon two grounds — First, the date is shown as August, 1876, and in the absence of evidence we cannot presume that the others are of earlier date ; second, in the patent put in evidence by defendant the Adelaide surface ground is excepted from the grant. This may be prima fade evidence that the Adelaide claim is of older date than the others, but it ia not evidence of anything more. �In taking the patents in that form there was no recognition of the plaintiff's right, or the validity of the Adelaide claim; nor is the defendant in any way precluded thereby from contesting that claim. �The exception in the patent to the Pine claim, to which reference bas been made by counsel, does not in any way relate to the matters ��� �