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Show MINES AND MINERALS. Prince of Wales vs. Highland Chiaf Fall Text of the Ceuena Land Office Decision. CONTINUED FROM SUNDAY'S 1S?CK. 3. It is claimed that the 6nal survey sur-vey and patent of tho Highland Chief did not lollow the original application ap-plication and notice, and that the claim was floated to the eastward so as to include the discovery and works of the Prince of Wales. The Highland Chief was located September 12, 1S70. In the location loca-tion notice the lode is described as " commencing at the discovery btake and running 600 feet in a southerly direction, aud 600 feet in a northerly direction therefrom. V Situate about five or six hundred ftet westerly from the Young Columbia and Wandering Boy lodus, Big Cutr tonwood district, Utah Territory." A location 500 or 600 feet westerly from the Wandering Boy lode would exclude the premises now in controversy. contro-versy. The diagram of the Highland Chief attached to ita application for patent, represents the Prince of Wales and Wandering Boy lodes as lying to the east of the premises claimed by the Highland Chief. The application and publication notice both allei-u thai " froni discovery ehaft the lode extends northeasterly six hundred (600) feet and southwesterly therefrom there-from six hundred (600) feet. There are no known adjoining claimants at either end. The nearest known claims being the Prince of Wales and Wandering Boy mines, on the easterly side of said lode." Under such an application and published notice it is very clear to my mind that the applicants had no ; right to go to the eastward so as to take in and appropriate the mines which they allege are on the"eaaterly side" of their lode. The object of requiring re-quiring notice to be given by publication publica-tion is lo inJorm all parties, who may have an adverse interest, of the premises prem-ises sought to be acquired, so that they may appear and assert their rights. If the notice describes premises prem-ises in which others have no interest, then such other persona may safely neglect to appear and set up any , claim. They are bound by the notice, j and it they neglect it they must do it at their peril; but the moment they t find that the notice does not ask lor , anything in which they have an iu-i terest, that moment they may eaieiyi sleep, if they please. They are not bound, and should not be bound, to look after subsequent proceedings for; fear that there may be a subsequent claim set up to their property. Ttiere can be no subsequent claim that varies var-ies materially from the original one, which is embodied in the application and publication. The law must be followed. The proceeding is a special statutory' proceeding, and all the provisions pro-visions ot the law must be carelully, and, as some authorities say, strictly pursued. Actual notice without publication pub-lication will not answer. Written notice would not besufficient.because the statute says that there must be notice by publication. If the published notice described certain premises, none other can be afterwards claimed and appropriated without a new application and a new published notice, and it there should be a subsequent ellurt to include premises other than those included in the original application and notice, and an adverse claimant should appear ap-pear and assert his claim to the new premises thus sought to be appropriated, appropri-ated, and should tail in mam mining his claim, either by reason of not iling the same in time or for defect in form, he wouitl not, in my opinion, be thereby in any worse position than he would have been if he had not appeared at all. In this class of cases consent canuot give jurisdiction. It is a substantial compliance with the statute which alone can give jurisdiction. jurisdic-tion. As we have seen, the location, application, ap-plication, and published notice of the Highland Chief severally excluded the premises of the Prince of Wales now in controversy. Il further appears, ap-pears, from the testimony on file, that the owners of the Highland Chief, in the early stages of their proceedings pro-ceedings for patent, did not intend to include the Prince of Wales mine. Mr. Stevenson, who was the surveyor sur-veyor tnftt made their original diagram, dia-gram, testifies that ho was instructed to avoid the Prince ot Wales, and that he did so. There is nothing in the case that indicates in-dicates any intention on their part to appropriate it until after they disco v. ered that the final Burvey might be construed to include it, aud they had succeeded in excluding its adverse claim. I think it was error to in elude it in their patent. THE WANDERING BOY. This mine was located and recorded record-ed August 6, 1S70, and before the Highland Chief. Its owners have made an application like that of the Prince of Wales. The Highland Chief crossei tneir surface ground and they ask that proceedings may be commenced in the name of the United Slates to set aside its patent. From what has already been shown it appears that the Wandering Boy was excluded from the location, and application and notice by publication of the Highland Chief, and for these reasons it also should have been, but wan not, excluded from the patent to the Highland Chief. I am therefore of opinion that the applications of the Prince of Wales aud Wandering Boy should be granted, unless the applications made by Schenck ond Mundy to set aside their patents should be granted, aud I will proceed to consider them. 1. ThePriuceof Wales. To this claim it is objected that its locatiou is void for uncertainty. The notice ol location is as follows : "The Prince of Wales lode. "Discovered by Thomas E. Owens, August 1, 1S70. We, the undersigned, under-signed, in company and undivided, claim 1,200 feet on the above lode or mass of or, or whatever it may con- Ofm laat fX- Hi..-. nr,r 1 I'M VI tain, 200 feet for discovery and 1,000 feet for location along this vein, wherever it may run, together with all dips, spurs, angles, and variations, varia-tions, with all the privileges granted by the laws of the district, and the congressional laws of the United States. This lode is situated on the right hand tone of the creek known as Silver Folk, within about 200 feet in a southeasterly direction of the lode called the 'Antelope,' in Big Cottonwood canon, and now supposed to run in a southwesterly and northeasterly north-easterly direction. "Discovery Thomas E. Owen, 400; H. W. Bishop, 200; T. Robinson, Robin-son, 200; J. J. Despaine, 200; H. Burnett, 200." In considering the question now presented it should be borue in mind that the discovery of lodes, and the preparation of location notices tor the same, are generally nmdo by unlettered unlet-tered meu, and it would be productive of great hardship, and perhaps generally gen-erally re.-mlt in an entire loss ol their valuable discoveries, if they were held to technical accuracy ii their notices oflocation. Aecordingi) it has been uniformly held by tht courts and this deportment that ex treme liberality should be shown u these notices, and if they were euffici-t euffici-t ntly certain to put an honest inquirer in-quirer in the way of ascertaining "here the lode was, that was eullici-i eullici-i ni. I think the present notice is reasonably certain, ond that its locus could be louud from the description givt-n. It is much more certain than many locations that have been carried into , atent even when contested. 2. Il U objected thai liie application applica-tion for patent aud the final survey and patent do not conlorm to tho oiiginul location. Tiiul parol evidence "is admissible admis-sible to aid in the location oi a ruining claim and define what tract is embraced em-braced in a location is well settled. Oom'r G. L. O. Instructions of Nov. 20, 1373; Kelly vs. Tavlur, 2 Cal.. 14.) Ihe testimony of four deputy mineral min-eral surveyors, and four oiners, their attendants, has been filed in this caae and allows that thoy have made a careful survey of tho premises, and find that the location, application and patent are for substantially the same premises. These persons have the means ot kuowing and have no motive that I can see for misstating the facts. This objection, I think, is not supported hy the weight of the evidence, and is therefore overruled. 3. Il is objected that tho proof ol publication of the notice of intention lo apply for patent wiis published from Jan. 6, 1S71, to April 6, 1871, a period of only eighty-niue davs, in cluding both the hrut and lost days of publication. One of the vices of this objection is, thai abduming the tacts as stated, and the publication was for 90 days j instead of S9, that raises the vexed question whether the first or lost day, or either, should be excluded in the j computation; and upou that point the .au.horities are numerous on both .sides, although it is the rule of this .department that tho first should be excluded. (Eureka case.) But ihis objection, if made at all, sbould have j been made before patent, aud it is too late to make it alter the patent has issued. (Curtis on Pat., 274.) 4. Il is also objected that the proof i of posting the notice aud diagram on j Hie claim does not show when, where, or for what period the same was posted. Tbo counsel who make this objection objec-tion refer to the affidavit of John Dobbie and George Murray to sustain the same. These persons both state " that of their own certain knowledge they are aware that a certain diagram was and has been posted for the period of ninety nine-ty days, subject to the inspection of all whom it may concern, upon that certain mining ground lying, 1 being, and situate in Silver Fork, . ' Big Cottonwood canon, Big Cotton-; Cotton-; wood mining district, Salt Lake j county, Territory of Utah, and known ; and recorded as the Prince of Wales I lode; and that said diagram is a true and corract copy aa made from survey sur-vey ot said ground, and now on file in the land otiice in Salt Lake city, s;iid survey and diagram having been filed for the purpose of securing and obtaining ob-taining a United States patent for the premises as hereinbefore mentioned, viz,: 'The Prince of Wales, by Tiioa. Butter wool,' " etc. This affidavit is not as specific as it should have been as lo ichen the I period of ninety days commenced, hut the objection shuuld have been made before patent, 5. Il is objected that the applicants for patent did not have the title to the claim al the time the application was made, a, id that they did not acquire ac-quire it for some time thereafter, and that, therefore, their application was absolutely null and void. It is clearly shown that they acquired ac-quired title in due form by conveyances convey-ances before the patent issued. It is not Bhown that they had nointeiest in the claim at the time the application applica-tion was made, but on the contrary it is alleged by counsel that they had contracts for conveyances betore the application was made. This is highly probable. It is extremely improbable improba-ble that business men would commence com-mence an application of this kind without having any interest a the premises or mine claimed. If they acquired full title, as they did before the patent issued, it is not void, and the irregularity is not such as would justily commencing proceedings pro-ceedings to set aside the patent. G. It is further objected (and this is the last objection insisted upon), that the application for patent was made by Thomas Budencood et al., but that the final certificate of entry was issued to I'hos. Hntterjidd et al., and that as the patent issued to Thomas Butterwood et al., it is illegal ille-gal and void. Thomas Butterwood was, without the possibility of a doubt, the true name of one of the applicants. His name aud his genuine signature appear ap-pear frequently in the papers. Theie is nothing to show that he ever traus- lerreu or preienueo to transier nis interest to Thomas Butterfield. The officer in issuing the final certificate, by inadvertence and mistake, issued it to Thomas Butterfield et al., when he intended to issue it to Thomas Butterwxxl et at. I entertain no doubt upon this point, and I am equally clear that this clerical error ought not to aud does not aftect the validity of the patent. To be continued. |