OCR Text |
Show RUUIMOND VS. TKKKSA. DtH'rco of Associate Justiro Kmersou Setting Asido tlio Venlii't of llir Jury, stitl Awunliti tlio Miuc to Kiehiirdsou, ill. th Pislrict Court of' tht Third Jn.i.-iii lu(rn-t or' tfi 7Vrri.it y of I f.tA, ivnufy of S,lt l.akf, Sattwl Smith, M'it.m T, UWmi, Vhonnis "attor mut AM If. W !tl? ftUmlijf'f, vs. Jtremiiih .V. A'kj.im ton. Joints Woodm in and Jostp li. tr defendant a. riSULNOS, This cauao canm on for ttearing in its order on the calendar of the Knit ruary term lS7tiufsaid tMurt, vU: On 'JStti day of February, lS7t, on whi. li liny the parties appeared personally .nd by tlioir attorneys; thia being a i-aiifxt on the eipuiy aide ol the- court, and the court having designated err-mm err-mm of the issues arising on lb pleail-iiii;h pleail-iiii;h to be Biilmultrd to a jury ftr it.- timlinga, a jury wa callel, emp ui-neleil ui-neleil and sworn to make and return their findings thereon. The trinl ol stud cause was con tinned from day to day until the .Slst Jay ot March, ii7t on which day it was submitted to the court tor its tiudingi and decision ukhi the si i -aim ion of the partiea the pleadings and thd s)ceial findings of the ury upon the issues prcoonted to it, antl ttie testimony taken in said cause. And now at thia day, after du consideration of the premise , the court now finds the following lacts. Firnt. That the plaiulilVs and the alleged lot a tors of the alleged Rich mond miuing claim in the complaint :iereiu, as well as all parties to any intermediate wnvcyancea of any in-lertst in-lertst claimed theroin through whom ttie plaintiff claim, are and were prior to the iuth day of June, 1S70, iiizeus of the United Slates. Second. Tb;vt the defendants and the locators of the Teresa mining ,-laim, mentioned in the answer Herein, as well us all parties to any intermediate conveyances of any in-:ert-st therein, through whom the defendants de-fendants claim title, are and were prior to the 1A day of July, 1870, citizens citi-zens of the I'uiU-d States. Third. That the plaintifld have iUCLveded by purchase, by means of sundry conveyance, to whatever interest and estate, if any, acquired ;u the premises in controversy by 'tie alleged lucatiou of the Richmond mining claim, if thcBamu was a valid kvaiion. Fourth. That the defendants have uceedc-d by purchase, by means ol" sundry conveyance, to all the et ii: and interest acimirtd in the preuiiaidj in controversy by the lov-alimi of '-lu-i Teresa mining claim and arc the owners of the whole of s--id Teresa mining claim and the premises in I juntroveriy, subject only to the paramount para-mount title of the government ol the United States therein. Filth. That the defendants on the JOth day of Ocluber, 1S73, maile and tiled in the United States land office at Salt Lake city, their application for a patent for the properly in dispute dis-pute in this action, and that notice of such application was published by the register of said land office on and aftr October 3lst. 1S73. as required !v law. "Sixth. That the plaintiflson the loth day of December, 1S73, aud during! the period of said publication madt-and madt-and filed their adverse claim in said and office in opposition to said defendants' de-fendants' application for ft patent predicated upon their claim to said ; disputed premiers under the name of1 the Richmond lode and miuing claim; that said register thereupon gave the usual notice itquired by law iu such eases, and the plaintifls thereupon und within thirty days after the filing fil-ing of such ad vers 3 claim commenced this action, as required by law. Seventh. That the mining law in torce in Big Cottonwood mining district, dis-trict, in Salt Lake county, Utah, territory, ter-ritory, the district in which the premises pre-mises in controversy are situated at the several date mentioned in said complaint, in that behalf were and now are as stated in said complaint, beiDg exhibit "C" attached thereto. Eighth. That the mining ground nd property claimed by the plainlifU as the Richmond lode, and the Teresa tode and mining claim owned by the delendants, are identical and one and the same property to the extent of one thousand linear feet along the lode, and which constitutes said lercsa mining claim. Ninth. That the locators of said Teresa lode and mining claim, and their succeoors in interest, have performed per-formed all the labor and made all the improvements thereon required by law u noid said claim, and that the locators loca-tors of the alleged Richmond mining claim, and their successors, have done work sufficient to bold said claim, bad the same been the first and a valid location. Tenth. That James IlT Nounnan . Junius Terry, J. C. Smith, J. F. Xounnan, S. DeWolf and C. W. AUupin, claiming to oe tne locators the Richmond niinine claim mentioned men-tioned in the complaint in this action, entered upon the mining ground and premises in controversy in this action, alter midday of the 3d of July, 1870, and between that time and the morning morn-ing of the 4th day of said July, and not at anytime prior thereto; and the court disapproves ot and does not adopt the finding of the jury upon the first special issue submitted to it herein, wherein said jury find that said parlies entered upon said premises prem-ises on the 20th day of June, 1S70. Eleventh. That James H. Noun-nan Noun-nan and his associates, between mid day of tne 3d of July. 1870, and the morning of the 4th day of the Bame month, wrote ft notice of location on the root of a tree on said disputed premises, in substance as follows: None. "We, tbc undersigned, claim j 1,400 feet on this io1e, with a width of I 100 feet on etch ti 'o, to bo knowu as the Richmond 1' do, supposed to run N. K. aod S. W., discovered June 2Cth, 1870. Feet. J. H. Nounnan, - 3U0 Junius Terry, ... suo J. F. Nounnan, - - 2U0 J. C. -Smith, - 200 S. Do Wolf, 20U U. W. Alaupin, - - 200 And that said notice was falsely made lo state that said parties had discovered discov-ered said lode or mining claim on the 20th day of June, 1870; and the court disapproves of and does not adopt the finding of the jury on the second special ibsue submitted to it, in so far as the same in any wise conflicts con-flicts with the findings above contained con-tained in this paragraph. Twelfth. That said James II. Nounnan and his associates did cause a notice of location of said alleged Richmond mining claim to he record-in record-in the local records of Mountain Lake mining district, on the 4th di-y of July, 1870. and in the local record of Big Cottonwood district on the loth day of July, 1S70, both in the words and figures following, to-wit: Notice. Wo, the undersigned, claim cacti (13)0) two hundred feet on this lode lo be known ae the Richmond lode. Said ! iode 14 Bitualtd in Big Cottonwood c .flon, abi-ut 1,000 fc t north of tbt Duvorp rl lode, M.d is euiu o-ed t" run 'in a northoatterly mid Suulhweslerl y direction, and was diECovcrod June -ii:D, 170. i-Uiiu .m Hi.) rI..)V.- inon-li inon-li nod 1 1, -lM) luuUrun limi.livd I'enl, I,, wil : (MUM oltilit liiimln'l in a B.Mliv-l.-i ly di'tvli.m, iui.1 kii(HM ail lumdii',1 t-l in a noitlit-Ai li t ly ihii-i'li'Hi. We .-Ui it nil iti, n-wm, R'-uIoh and vniitlkiui ullh a widlli ot' olio Inilidn d Uii't iu eneh nidi), J. II N. unman - :' hiinif T.-rry :um: .1. '. .Smiili -"it .1 , F. N nun nun - - - - - " ! Si. iilui;i ll.-W'i.lf .... a -li U. W MMlj.in -I"'. 1.100 And tho court approvi-s of and adipti the finding ol ihe iiry tipun the third nieeial itwue auhtnittetl to it. rturteonlh. Thai tho spot wlmro the Bind .lamed 11. N mi nan and Ihh uHaociales wrote said n iticn tin nhuvt' found was N. S'M' '11' W. Dinlnnl eiglil hundreil and eevnity live tS75) feet from the diseiivery pnint ol Uu Davenport Knie: and tho e.url disapproved dis-approved of and linen nut idopt iho finding of the jury upon tho fourth special i.tsue Mitnmlted lo it. Ftiurleontli. That said James 11. Nounnan and hit ns-iociates did plaru naul notieii on said disputed preinises hetwt-en midday of iho tlnrd and the morning ol the fourth day of July, IS70, and that the date thenof was not altcnd lv iliein or any pe-rtun acting under llicir direction: an 1 the et.uirt dons not approve ol or adopt tht finding of lint jury on the tilth special issue su'iinilted tt it. Fiftweeulh. T.iat Jereniiah M. RieliardfOn, John Daley, S. lv Spruusn and John Trainer, clauiniit; to tin tne locators ol the Teresa mining claim, did en I or unoti the miniiiL' l round and premises iu conirmvry in thiri action on the lid day of July, 1S7U: and the court approves of and adopt tho finding ol llui juryonthtt sixth special issue suliiuiltel lo it herein, ti above staleil in t t is parngraph, Hie only aheraliun being iu ttiti n.mi- ot rt. E. Sprousc, instead of A. W. Spr. )U-0. Sixicentti. That the said Jeremiah M Kiehanlunn and his associates did Kt a written notice of location of aid Teresa mining claim on s.ti I dispuP-d promises on the I'd day of July, 1870; that it was written upon paper and posted upon a post, and that its terms were in tho words and figures following, follow-ing, lo wit: I lie T.TOi Lodo. Nuties We the undursitfiH'J in c miin v Ufdi vidc-1 elrtim mm llmuand .l.Oini) f-et uf lh' vein, lode or ms of ori. now hiiu'.)-' I 10 un a-'ii'licrlv, and tifiy (..0) ('"'. tn each Mdn of th vein f r datoiniig pur)04s, with nil ih privil-gs trHrn.-d I'j ilie Uws 'f tli's distretttii'l lli-lmvs' of tin- U litnd S:rl. t.jf.iih.r illt al 1 dips, spur- anl anW, fur mining pur-l.se?, pur-l.se?, Mtusfd n-'Hr tin h.-fid ir Ll v r Hrfc, in llig Coi;on'iv-l cuTitn, i Chiton Wt'dJ di -trii l, U1 ah t- rril -rv. loeat.. Ju'-v'Jd, 1570, Jo-'V ltie;.anl--n, J 'h i Daley, John Tra uor, S. E. Spreue. And the court approve of and adopts tho findings ol the jury on til e seventh special isMio eubmitUil to it Herein; aud in additiuu tliereto the court finds that en ti.e morninc of the 3d day of Ju'y, 1870. and belt ire the entry of said J. II. Nounnan and hia associates upon the property in i controversy herein; the said notice nas written aud re posted and there-fifterwards there-fifterwards so remained, as the same was recoalcd as found in the next paragraph. Seventeenth. The said Richardson and his associates did record a notice of location of said Teresa mining claim on the 5th day of July, A. D. 1870. iu the records of B:c Cotton i wood mining district, and that iu terms were in the following words and figures, to wit: The Teresa. Lode. Notice. We, the undersigned m company undividi-d, cla.m vim thousand tliOiitM IViel of tbi vtin or lud, tivo hundi f'-.'t o ch a -y from Itui notice, n..w supp.ud uorib-"ierly uorib-"ierly and uih w-strly: and ai?o tifty Ibu) iWt on uAch e.de of the Vfin fr oumuing purpoaes, with ad lhn pnvileg.'-ranit'd pnvileg.'-ranit'd by Ibe laws of 'bU dUlr.cl j and Ibe laws of ibe United Slates, i lo gather wi.b all dips, spura aud an u, for minini; puqwit.-!, situated nn.ir tl.e j heal of Silver corn, in lije .Cottonwood cailon, Bi t'oit-nwoo-J ai-trict, l:iah i lrril"ry, 1 caled July 21, A. D. 170. ' Jerry Richardson, John Daley, Joiin ' Trainor, A. W. Sprouse- ' And the. court approves of and i adopts the finding ol the jury upon j the eighth special issue aubuuUed to it herein. i Eighteenth. That said Jeremiah ; M. Richardson and his associates : placed said notice of location of said Teresa lode upon the premises in dis- j pute herein, prior to the lime when said Nounnan and his associates entered upon said premises. And the court disapproves of aud does not adopt the finding ot the jury upon tne ninib special issue submitted to them herein. Nineteenth. Tiiat at the time said Richardson and his associatt-s entered upon the premises in dispute and located the same a the Teresa lode and mining claim daid premises were on and a part of the uneurveyed public pub-lic domain of the United Slates, uu-occupied uu-occupied and unclaimed, and that they were the first to discover and locate and claim the said lode and mining claim. Twentieth. That said Teresa lode and mining claim is situated in llig Cottonwood minim; district. Salt Lake r-nuntv. llLfth territory, and bounded and described as lollows, that is 10 say : Beginning at discovery Btaka of tha I Teresa mining claim, thence south 5S50' west 500 leet to the south end i nt claim; thence north 3110 west fifty leet to post No. 1; thence south SriO' at 100 feet to post No. 2; thence north 58'50' east 1.000 feet to post No. 3; thence north 3110 west 100 feet to pot No. 4; thence south 583a0' west 1,000 feet to post No. 1. From post No. 3 U. S. mineral mon-meniNo. mon-meniNo. 1 bears south 50 east 615 feet distant, and 1,000 linear feet of said mine, vein, lode, ledge or de-po.-it, namely 5(0 feet each way from the discovery point along the course of said vein, lode, ledge or deposit throughout its entire depth, although it may enter the land adjoining. And as conclusions of law from tho foregoing facts tho court finds : First. Tno plainiills are not the owners of the property in dispute in this action nor of any part thereof; nor have they the right to the possession pos-session therefor ot any part thereof as against the detendanla; nor are they entitled to the reliet prayed for iu their complaint or any part thereof. Second. That the delendants are the owners and entitled to tho possession posses-sion of tht minine property in dispute in this action against the plainiills and all persons claiming or to claim by, through or under them or eithor of them, and of the whole thereol; and are entitled to the relief prayed for by them in their answer in this action. Judgment will be entered accordingly accord-ingly for defendants with their co.ts. Philip H. Emerson, Judge Third Diulrict Court. Dated, April 3d, 1870. The plaintifls excepted, firat to tht ruling oi the court refusing their motion for judgment on the verdict ol the jury. Second, to the ruling and action of the court setting aside the verdict anJ findings of the jury, Third, to tre 10ih, llih, 13th, 14th, 15th, 10th, 18th, l'Jth aud 20lh findings find-ings of tho court as against and not warranted by the evidence adduced on trial, and to the conclusions o Uw on such findings Fourth, lo tht decision ot the court because, tut same is against law and because lh reimn wan mule upon a mode ol niviewiun the eunn on thu tivideui'i- not provided lor by law. Tim ilaiutiil't tin iv, d the court I" vacalo its deereti and sot down the e.trtii an m a inin-trial. Tim court overruled the motion; and tlin plain-(ill's plain-(ill's excepted to the ruling. tn application of ihn p!ai rildls tlmy wmi allowed forty days lor preparing and sorviiig mil ice ol i notion and Hluti iuonl lor a new tri il; and all jollier pinceedins in tho caune were stayed in the moanlimo. |