PORTER et al. v. TONOPAH NORTH STAR TUNNEL & DEVELOPMENT CO.

PORTER et al. v. TONOPAH NORTH STAR TUNNEL & DEVELOPMENT CO. (Circuit Court of Appeals, Ninth Circuit. June 27, 1906.) No. 1,241. Mikes and Mining — Conflicting Mixing Claims — Evidence Considered. The decision of a Circuit Court affirmed, holding that the evidence was insufficient to sustain the burden of proof resting on adverse claimants to show that any part of mining ground sought to be patented by defendant was within the boundaries of a claim as previously located by plaintiffs and their grantors. Appeal from the Circuit Court of the United States for the District of Nevada. For opinion of court below, see 133 Fed. 756. This was a suit in equity, commenced by the appellants against the appellee under the provisions of sections 2325 and 232G, Rev. St. U. S. [Comp. St. 1901, pp. 1429, 1430], to determine the question of the right of possession of certain mining ground situated in Touo-pah/ Nye county, Nev. The court rendered a decree in favor of the defendant. The complainants appeal. Garoutte & Goodwin and Welles Whitmore, for appellants. K. M. Jackson, Key Pitman, and Campbell, Metson & Campbell, for appellee. Before GILBERT, ROSS, and MORROW, Circuit Judges. [MAJORITY — MORROW, Circuit Judge.] MORROW, Circuit Judge. The defendant, the Tonopah North Star- Tunnel & Development Company, filed its application for a patent for the Ivanpah' mining claim in the United States Land Office at Carson City, Nev., on the 19th day of September, 1903. Within 60 days the complainants filed in said land office their adverse claim to the defendant’s application, and within thirty days thereafter commenced suit in the United States Circuit Court for the District of Nevada to determine the rights of the respective parties to the ground in controversy. The case was heard upon oral testimony, documentary evidence, location notices, plats, and diagrams, and a décree entered in favor of the defendant. The claim of the complain-ants is based upon a location of a mining claim known as the “Dave Lewis Hope,” made August 26, 1901, and án amended certificate of location of said claim under the name of the “Mizpah Intersection,” made May 17, 1902. The claim of the defendant is based upon a lo-cátiori of a mining claim known as the “Ivanpah,” made October 10, 1901. -, Both claims are situated on the westerly side of Mt. Oddie, in the Tonopah mining district. It is claimed by the complainants that‘defendant’s location overlaps a considerable part of the complainants’ location. The defendant, on the other' hand, claims that, as the complainants’ location was originally made, there is no conflict in the two locations. The case was heard by Judge Hawley in the Circuit Court, and in his Opinion-the questions’in controversy were fully discussed. Porter v. Tonopah North Star Tunnel & Development Co., 133 Fed. 756. In this court we have had- the assistance of. oral arguments and elaborate briefs in considering the questions at issue, but we have been unable to find that the court was in error, either in the facts found or in its construction of the law. For thereasons stated by Judge Hawley in his opinion, the -decreeof the Circuit Court is therefore affirmed.