Wilson Creek Cons. Min. & Mill. Co. v. Independence Town & Min. Co.

This cause having heretofore been filed to the court without a jury, a jury having been, in open court by the respective parties hereto acting by, or through, their several record attorneys, expressly waived; the plaintiff, the Wilson Creek Consolidated Mining and Milling Company, a corporation, appearing by its said record attorneys, Charles J. Hughes, Jr., Esq., Tyson S. Dines, Esq., and Messrs. Finn and Engley, and the defendants, the Independence Town and Mining Company, a corporation, John L. Russell, John Tompkins and Gus Hill by their said record attorneys, Messrs. Wolcott & Vaile, Messrs. Blackmer & McAllister and Benjamin F. Montgomery, Esq., and taken under advisement, comes on now again on this day for the findings and final judgment and decree of the court upon the proofs heretofore taken, the pleadings in the cause and the arguments of counsel, all parties appearing as before by their respective at*7torneys and the court being now well and fully advised in the premises finds the issues herein joined in favor of the said defendant, and against the said plaintiff, and that said plaintiff is not entitled under the issues and proofs herein to the relief prayed or to any relief either in law or equity in this cause; and the court further specially finds herein as follows:

First — At the date of the application of the said defendant company to wit: On May 20, A. D. 1893, for entry to it by the United States of the “Hull City Placer” as a placer mining claim, the “Minnie Bell” mining claim was a valid and subsisting lode mining claim, and prior in time as to location to the said “Hull City Placer” claim, and a portion of surface ground was then and there in conflict with the said “Hull City Placer.”

Second — -That at said date, in the ground in conflict between the “Hull City Placer” claim and the said “Minnie Bell” lode as shown, both in the original location of said “Minnie Bell” lode, and as well by and in the final plat of survey and last location certificate thereof, there was no known, discovered or disclosed vein or lode of mineral rock in place; and, in the ground in conflict, as aforesaid, between the two said locations no vein, or lode or mineral rock in place has ever been disclosed in the Little Effie tunnel mentioned and referred to in the testimony upon the trial in this cause.

Third — That the vein or lode upon which the discovery of the “Minnie Bell” claim was made at said point of discovery, is approximately 100 feet distant from and without the surface boundaries of the said “Hull City Placer” claim', and if the law assumes said lode or vein extend through the claim on its strike, substantially parallel to the side lines thereof, then it never will enter the surface boundaries of the “Hull City Placer,” and the development work done upon said vein or lode at and near the point of discovery thereon, though meager, indicates that said vein or lode does substantially so extend.

Fourth — That as a matter of law, and the court rests the decision of this case upon this point alone, the plaintiff company, by its admitted failure to adverse the application of the defendant company for entry of the “Hull City Placer” claim, in view of the fact that there was at the date of said application no known or discovered vein or lode at any point within the ground in conflict between these two claims as they have been finally surveyed for patent, and, as originally. located, — waived and abandoned any and all rights to such conflicting ground and to every part, portion and parcel thereof, and now has no right, title, claim or interest in or thereto.

*8Fifth — The proofs offered by the defendants as to the various rulings of the United States land department upon the several contests between the parties hereto, and others affecting the property herein concerned, have all been rejected by the court in the consideration and determination of this case as immaterial and irrelevant.

Sixth — That the injunction heretofore issued in this court should be dissolved.

Wherefore, it is ordered, adjudged and decreed by the court that the temporary injunction heretofore issued in this case be,, and the same hereby is vacated, dissolved and for naught held, and it is further ordered, adjudged and decreed by the court that, the plaintiffs herein take nothing by its said suit, and that this cause be, and the same is hereby dismissed out of court.

It is further considered by the court that the said defendants have and recover of and from the plaintiffs hereiu their costs in this behalf laid out and expended to be taxed, and that they have execution therefor.