Show RECENT MINING DECISIONS prepared for the mining review by judge E V higgins D P F walker building min mil es location unoccupied territory evidence materiality non nonsuit suit right of defendant local rules and regulations proof placer mine amended certificate 1 defendants mine was located july 1895 and in july 1898 he stated that his location did not include territory which plaintiffs subsequently located thereafter defendant filed an amended certificate covering such territory but it did not appear whether plaintiffs plaintiff Is mine was located before or after the filing of such certificate at the time plaintiffs plaintiff s located their mine the territory covered by it was in the actual possession of the defendant held that the evidence was not sufficient to show that plaintiffs plaintiff Is mine was located on mining domain 2 in the absence of proof that the amended certificate was filed subsequent to the location of plaintiffs plaintiff Is mine evidence as to what territory was included in defendants original notice and as to the difference in the territory included in his original and amended certificates was immaterial 3 revised statutes U S section 2326 provides that if in adverse proceedings the title to the ground is not established in either party the jury shall so find and judgment shall be entered accordingly and code section declares beclar es that a J judgment I 1 of nonsuit non suit may be entered on motion of defendant when plaintiff falls fails to prove sufficient to go to the jury held that where in an action to pre ale vent the issuance of a patent to defend defendant ants 8 mine because it included a mine located by I 1 plaintiff the evidence was was not sufficient to show that plaintiffs plaintiff Is mine was I 1 located oca on un ull appropriated territory and defendant did not ask for a verdict or affirmative judgment it was proper on his motion to enter judgment of nonsuit non suit 4 when plaintiff sought to prevent the issuance of a patent to defendants mine and ana alleged that it included the claim located by plaintiff but did not show what were the local rules and regulations governing the location of mines plaintiff cannot attack the validity of defendants location for defendants failure to comply with such rules and regulations 5 mills ann st section providing that the locator of any mining claim may file an additional certificate entitles the locator of a placer mine to file an additional certificate fl kirk et al vs meldrum et al colo 65 pac rep mines and minerals waters and water courses pollution silt injunction evidence sufficiency 1 defendants conducted mining operations about two miles above plaintiffs plaintiff Is premises on a gulch tributary to a creek flowing through plaintiffs land and which deposited silt injurious to the land specimens of the silt showed it to be similar to the deposits in defendants impounding dams but there was evidence that the same same formation was found along other tributaries tributa ries witnesses testified that they had traced the deposits to defendants dams that there was but little of it found in the crea cree above its juncal juncture are with the gulch that sand came down every time defendants turned a reservoir head that at one time when their dam broke sand came do down wn in such quantities as to fill up the creek for the space of yards and much of it was carried onto plaintiffs premises defendants had two dams both carrying all the tailings tailing they would hold and a slight freshet had recently caused a breach in the lower one carrying away about one fourth of the tailings held that the evidence showed that defendants system was not secure or effective in in preventing the debris from being carried on plaintiffs plaintiff Is land and its use should be enjoined 2 where the evidence showed that defendants fend ants impounding dams were inefficient to prevent the silt and debris from their mines from being carried below anto pla plaintiffs in tiff Is premises an order enjoining defendants from casting the debris in the creek or impounding poun dino it above plaintiffs premises should be modified to allow them to impound when they should have adopted approved means york vs davidson et al ore 65 pac kept p |