Page:Federal Reporter, 1st Series, Volume 5.djvu/185

 ZOLIiARS tJe'EYAîfë.' 173 �1879, take possession of the Highland Marjr claim under the deed' from Jed. H. Basootii and others, and hold possession thereof at the last-named date? �The twenty-third day of September, 1879, is the time the suit was brought, and, iii the attitude of the case on the evidence, the plaintiffs eannot recover, except upon actual possession at that time. There is nothing to show that John W. Zollars, who assumes the position of trustee to the cor- poration, was ever in actual possession of the property. The Company appears to have been organized on the thirtieth day of July, 1879, and, of course, not being in existence, it could not enter into possession before that day; so, that as to possession, the question is whether after the thirtieth of July, and at any time before the twenty-third of September, 1879, and at the last-mentioned date, the corporation was in possession. �If you find that to be true, a further question will ariëe as to whether a Iode was discôvered in the Highland Mary dis- côvfery shaft, and sueh Iode et tends from that discovery shaft to the grounds ih controversy. On the public domain of the United States a miner may hold the place in which he mày be worliing against ail others having no better rîght. But when he asserts title to a fuU claim of 1,500 feet in length and 300 feet in width, he must prove' a Iode extëndiiïg throughout the claim. I do not reeall ariy evidence to efbow that any df the openings in the ground in controversy were made prior to September 23, 1879. �The Highland Chief people had sunk a shaft just outside oî the ground in dispute, and in May of this year drifts had been run from that shaft into the ground in dispute. But I do not remember that any witness slated when those drifts were ryn, or when the tunnel which penetrates this territory was made. And if, in f act, those openings, or any of them, were made before the suit was brought, and the plaintiff corporation was then in possession of them, that fact alone would not enable the plaintiffs to recover the whole of the dispiïted ter- ritory. �Such possession of those openings only, without the dis- ����