Tonopah & Salt Lake Mining Co. v. Tonopah Mining Co.

• Decision Date: 03 August 1903
• Docket Number: 735.
• Citation: 125 F. 400
• Parties: TONOPAH & SALT LAKE MIN. CO. v. TONOPAH MIN. CO. OF NEVADA.
• Court: U.S. District Court — District of Nevada

125 F. 400

TONOPAH & SALT LAKE MIN. CO. v. TONOPAH MIN. CO. OF NEVADA.

No. 735.

United States Circuit Court, D. Nevada.

August 3, 1903

Dickson Ellis & Ellis and Key Pittman, for complainant.

W. E F. Deal, Kenneth M. Jackson, and Campbell, Metson & Campbell for defendant.

HAWLEY District Judge.

This suit is brought in support of an adverse claim made by complainant, as the owner of the Wandering Boy mining claim, against the application for a patent made by the defendant to the Butler group of mines, situate in Tonopah mining district, Nye county, Nev., and is one of the three cases referred to in the opinion in No. 734 (125 F. 389). It will be noticed from an examination of the diagram inserted in that case that the Wandering Boy, as located, overlaps the Valley View in the form of a triangle. The complainant makes no claim whatever to any part of the ground within this triangle that is situated north of the ground marked in yellow on the diagram. The dispute between the parties is confined to that portion in yellow situate between the northeasterly and southwesterly side line and the northeasterly end line of the Wandering Boy. It is described in the bill of complaint as follows:

'Beginning at a point which is north, 55 degrees 23' west, 286.5 feet distant from corner No. 8 of said Wandering Boy claim, and running thence on a true course north, 55 degrees 23' west, 13.9 feet, to corner No. 7 of said Wandering Boy claim; thence north, 46 degrees 31' west, 301 feet, to corner No. 6 of said Wandering Boy claim; thence south, 50 degrees 27' west, 235.5 feet, to corner No. 5 of said Wandering Boy claim; thence south, 39 degrees 38' west, 8.7 feet, to a point on the southerly side line of said alleged Valley View claim, as surveyed for patent; thence south, 82 degrees 02' east, 421.1 feet, to the place of beginning; containing 0.872 acres.'

The side lines of the Wandering Boy, marked in black on the diagram, measure in length 1,553 feet. Deducting the excess over 1,500 feet therefrom brings the northeasterly end line down to the line in red from F to G on the diagram.

The contention of complainant is substantially the same as made in the Pyramid Case with reference to the dropping of the east end line southerly 83 feet; the difference in the cases being that the Wandering Boy was located, and certificate of location recorded, prior to the recording of the amended location certificate of the Valley View, instead of subsequent, as in the case of the Pyramid in No. 734.

The Wandering Boy was located September 9, 1900, by Edward Clifford, Jr. A notice was posted on the ground by the Cliffords. Mr. Butler thereafter called their attention to the fact that the notice was defective, and, among other things, suggested they had not given any name to the claim. They requested him to name it. He said Ed had often expressed great pleasure in listening to a famous song: 'I will name it the Wandering Boy to remind him of it. ' This original notice of location was not introduced, but the certificate of location was. It bears date December 5, 1900, and was recorded on that date. It refers to the original location, and states, in giving the description, 'This claim joins the south side line of the Valley View claim. ' It contains the further statement that 'the north corner of said claim overlaps the Valley View claim; said ground lying within the south side line of the Valley View claim, which is included within this Wandering Boy claim, to belong to the Valley View. ' In an additional and amended certificate of location, dated May 29, 1901, and recorded July 7, 1901, defining the Wandering Boy by metes and bounds, is the statement 'intersects south line of Valley View lode at its middle point.'

The controversy in this case is principally one of fact. It depends upon the proper solution of the question as to where the south side line of the Valley View was at the time the Wandering Boy was located, and where it was at the time the owner of the Wandering Boy filed the additional and amended certificate of location. The lines in relation to these points are sharply drawn. There is upon some of the points a direct conflict in the evidence, which is somewhat difficult to unravel or make clear, and there are other points in connection therewith which are undisputed. There is in this case, as well as in case No. 736 (125 F. 408), a long history as to the manner in which the early locations were made in the Tonopah mining district. Conspicuously in the foreground stands the original discoverer, J. L. Butler, who was the active and moving spirit that directed all the locations involved in these two suits, as well as other locations made in the immediate vicinity. After Butler had made the discoveries mentioned in case No. 734, he notified the Cliffords thereof, and suggested that they ought to go to the new district and locate some mining claims. They had no knowledge of mining, but had faith in Butler as a friend, appreciated his friendship, and acted upon his suggestion. The complainant's case rests entirely upon the testimony of Edward Clifford, Sr., and Edward Clifford, Jr., from whom complainant derives title. Prior to any statement or review of their testimony, it is deemed proper to say that the Cliffords, father and son, had lived upon a ranch for several years; that they had no experience in mining; that their memory and recollections of the events that transpired at Tonopah were not clear upon many points; that they often became confused in giving their testimony (they were not, however, the only witnesses that became confused); that they evidently had but little experience as witnesses, respective counsel, and were easily led into making answers contradictory of their first statements. They were called and recalled, examined and re-examined and cross-questioned, to explain their testimony, and at times lost their bearings. It is difficult to review such testimony.

Mr. Edward Clifford, Sr., testified: That after his arrival with his son at Tonopah in September, 1900, he found where Mr. Butler had made some locations, and went prospecting around to see if he could not find something-- some ground that he could take up. That he went upon what is called the 'Valley View Ground,' and thought he would take the course of the Valley View ledge, and would locate across the canon. He told his son where that ledge crossed through a canon, and went off with a hammer in his hand, breaking rock around, and went across what is called 'Gold Hill' now, and came right down and found some rock cropping out, and that his son located the claim known as the Wandering Boy. That they first intended to locate the claim east and west, parallel with the Valley View. That he knew at the time of the location of the Wandering Boy where the southwest and southeast corners of the Valley View were, and saw the monument marking the south side center of the Valley View, that after making the location he had it surveyed by W. C. Gayhart. He and his son Edward and a man named Roddick assisted, and Gayhard had Mr. Egan and Mr. Miles assisting him. Upon his cross-examination he was asked:

'Q. For what purpose was the survey made? A. My monuments on the claim was knocked down right along. Every time I would go over the ground I would find monuments knocked down, and I spoke to the boys that we ought to have it surveyed. So my son went and seen Mr. Gayhart, and got him for to survey the ground. Q. Wasn't it surveyed for the purpose of establishing the line between the Wandering Boy and the Valley View? A. I suppose it was. Q. When Mr. Gayhart surveyed it, had your monuments then been knocked down-- the ones which you erected prior to that time? A. Yes, sir; I put them up many times. Q. At the time of the survey, had they been knocked down? * * * A. Well, now, I could not say whether they were down then or not. * * * Q. I come back now to where we were talking about yourself and Mr. Butler at the time of the Gayhart survey. You didn't intend to claim any of the Valley View claim as it was located at that time, but you wanted all that was south of the Valley View. That is a fact? A. Yes, sir. Q. And that is because Mr. Butler and you were friendly, and you wanted to adjust the lines between your mining claims? A. Yes. Q. And that was the only reason of the survey? A. No, sir; that was not the reason of the survey, altogether. If my monuments had not been knocked down, we would not have had it surveyed at all. Q. Having it surveyed, that was what you wanted Mr. Gayhart to do-- to establish the line as it existed between you and the Valley View, as it existed then? A. To establish the whole line, clean around the claim. Q. And you all the time didn't want any of the claim that was at that time within the lines of the Valley View, did you? A. I wanted nothing belonging to the Valley View. I didn't want any ground belonging to the Valley View.'

It will thus be seen that the object of this survey was to establish the line between the Wandering Boy and the Valley View, that at the time of making this survey it was his intention to establish the south line of the Valley View as the northerly boundary of the Wandering Boy, that they understood at the time of fixing the boundaries that Mr. Gayhart had surveyed the Valley View ground, and they did not intent to infringe upon any portion of the Valley View claim.

The contention of counsel presents the question whether the Cliffords meant the line first established by Butler before or the line established after, the easterly end line of the Valley View was dropped down, as stated in the former opinion, No. 734. On the redirect examination of Edward Clifford, Sr., the counsel for complainant brought out the evidence upon...